Kerala High Court
William Reynold vs Kerala Motor Transport Workers Welfare ... on 25 February, 2002
Author: K.A. Abdul Gafoor
Bench: K.A. Abdul Gafoor
JUDGMENT K.A. Abdul Gafoor, J.
1. Challenge is against Ext. P1. It is a notice issued under Section 65 of the Kerala Revenue Recovery Act, to show cause why the petitioner shall not be detained in civil prison to realise the debt in question.
2. According to the petitioner the debt in question is as is revealed by Ext. P1, amount payable to Kerala Motor Transport Workers Welfare Fund. The amount was payable by the father of the petitioner. The petitioner was never a permit holder at the relevant time. The petitioner's father had disputed the amount as is revealed by the averments made in paragraph 1 of the O.P. He approached this Court with OP 14675 of 1992. This Court directed the petitioner's father to file an application for stay before the Secretary. The Government stayed all further proceedings as per order dated 3.12.92 as is averred in paragraph 1 of the O.P. Therefore the petitioner shall not be proceeded with for recovery of the amount in question due from his father. There is no reason to arrest him. He has no means to pay off the debt. Therefore show cause notice itself is illegal, petitioner submits.
3. None of the respondents has filed any counter affidavit contradicting these averments. The liability was disputed by the petitioner's deceased father. That is the main contention. That is not disputed. The petitioner has contended that the petitioner does not have any means. That is also not disputed. Those averments stand uncontradicted, Section 65 of the Kerala Revenue Recovery Act provides that when arrears of public revenue due on land is defaulted, and the same could not be realised, out of the property of the defaulter or the surety, as the case may be, the Collector may issue a warrant of arrest of the defaulter. The arrest is therefore permissible when there is default and non-payment of "public revenue due on land" and when the proceeds from sale of the properties of the defaulter or surety are not sufficient to liquidate the arrears with interest thereon and cost of process. As per Section 2(a) arrear of public revenue due on land" means the whole or any portion of any kist or instalment of such revenue not paid on the date on which it falls due according to the kistbandy or any engagement or usage". So also 'public revenue due on land' is defined in Section 2(j) of the Act. It shall be an amount charged on land or dues payable to Government on account of water. Therefore the amount now due for default of which show cause notice or arrest warrant is issued on the petitioner is not arrears of public revenue due on land, the counsel submits.
4. Of course in terms of Section 71, Government is vested with the power to issue notification declaring, in public interest, to apply the provisions of Revenue Recovery Act to recover the amounts due from any persons or class of persons "to any specified institution or any class or classes of institutions and thereupon all the provisions of this Act shall apply to such recovery".
5. It is seen that SRO No. 691 of 1998 published in Gazette No. 23 dated 7.6.88 is one issued under Section 71 of the Kerala Revenue Recovery Act declaring that the provisions of the said Act shall be applicable to recover the amount due from any person to Kerala Motor Transport Workers Welfare Fund Board. When such a notification is issued, necessarily the provisions of Revenue Recovery Act can be set in motion to recover the amount due towards Motor Transport Workers Welfare Fund. But by reason of such a notification issued under Section 71, the definitions of 'arrears of public revenue due on land' or 'public revenue due on land' contained in Section 2(a) and (j) do not get modified and any amount recoverable in terms of a notification issued under Section 71 will not become public revenue due on land to issue a warrant of arrest in terms of Section 65 which is permissible only in respect of recovery of arrears of public revenue due on land.
6. Section 10 of the Motor Transport Workers Act, 1985 provides that "any amount from the employer in pursuance of the provisions of this Act or of the Scheme other than the amount payable under Sub-section 1 of Section 9 may, if the amount is in arrear, be recovered together with interest thereon at the rate of 9% per annum in the same manner as an arrear of public revenue due on land".
7. By reason of this provision, the amount due towards Motor Transport Workers Welfare Fund can be recovered by resorting to the provisions of Kerala Revenue Recovery Act which provides for recovery of arrears of public revenue due on land. But by reason of this provision, the amount due to Motor Transport Workers Welfare Fund Act does not become arrears of public revenue due on land as defined in Section 2(a) of the Kerala Revenue Recovery Act. The dues towards Motor Transport Workers Welfare Fund is made recoverable as arrear of public revenue due on land. That is only for purpose of recovery provisions. By reason of Section 10, Section 2(a) of the Kerala Revenue Recovery Act does not stand amended to include the amount due to the Motor Transport Workers Welfare Fund also within the said definition.
8. As already mentioned above, Section 65 can be applied only if the public revenue due on land had been defaulted or had been wilfully withheld from payment or had neglected to pay such arrear and when the proceeds of sale of property of the defaulter is not sufficient enough to liquidate such arrears with interest and costs. The dues towards the Kerala Motor Transport Workers Welfare Fund will not come within the term 'public revenue due on land' to press into service Section 65 of the Kerala Revenue Recovery Act. So Ext. P1 is illegal and without authority of law. Ext. P1 is quashed and O.P. is allowed.