Kerala High Court
Sunil Krishnan N.K vs Union Of India on 1 June, 2020
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
MONDAY, THE 01ST DAY OF JUNE 2020 / 11TH JYAISHTA, 1942
WP(C).No.8217 OF 2015(B)
PETITIONER:
SUNIL KRISHNAN N.K
AGED 37 YEARS, S/O.LATE SRI KRISHNA PILLAI, RESIDING
AT 6B, INFRA HAMLIN, DOCTORS LANE,
KADAVANTHRA P.O., PIN - 682 020.
BY ADVS.
SRI.KURIAN GEORGE KANNANTHANAM (SR.)
SMT.V.K.ANJU
SRI.K.H.ANSAR
SRI.T.R.JERRY SEBASTIAN
SRI.THOMAS M.JACOB
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY SECRETARY, MINISTRY OF COMMUNICATION
AND INFORMATION TECHNOLOGY, DEPARTMENT OF POSTS, DAK
BHAVAN, SANSAD MARG, NEW DELHI PIN 110 001.
2 THE POST MASTER GENERAL, DEPARTMENT OF POSTS
OFFICE OF THE POST MASTER GENERAL, CENTRAL REGION
(KERALA), KOCHI PIN - 682 020.
3 THE SENIOR SUPERINTENDENT OF POST OFFICES
DEPARTMENT OF POSTS, INDIA, OFFICE OF THE
SUPERINTENDENT OF POST OFFICES, ERNAKULAM DISTRICT,
KOCHI - 682 011.
4 THE DISTRICT COLLECTOR, ERNAKULAM DISTRICT
COLLECTORATE CIVIL STATION
KAKKANAD, PIN - 682 030.
5 THE TAHSILDAR (RR)
KANAYANNUR TALUK, KOCHI PIN - 682 011.
6 THE VILLAGE OFFICER
ELAMKULAM VILLAGE, KADAVANTHRA P.O.,
KOCHI PIN - 682 020.
ADV.T.V.VENU
GOVERNMENT PLEADER
SMT.O.M.SHALINA, CGC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
06.03.2020, THE COURT ON 01.06.2020 DELIVERED THE FOLLOWING:
WP(C).No.8217 OF 2015
2
ANU SIVARAMAN, J
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W.P.(C).No.8217 of 2015
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Dated this the 1st day of June, 2020
JUDGMENT
This writ petition is filed challenging Ext.P4 communication as well as Exts.P8 and P9 revenue recovery proceedings initiated pursuant thereto.
2. Heard the learned Senior Counsel appearing for the petitioner and the learned Central Government Counsel appearing for respondents 1 to 3 as well as the learned Government Pleader appearing for respondents 4 to 6.
3. The petitioner, a publisher of a registered newspaper, was entitled to send copies of the newspaper at a reduced rate in terms of Section 9 of the Indian Post Office Act. Exts.P1 and P2 are the renewal memos issued for the registration under Section 9. It is stated that by Ext.P3 Order dated 13.02.2007, the registration of the newspaper was unilaterally cancelled with immediate effect. Though the learned counsel for the petitioner submits that the Order was issued without putting the petitioner on notice or considering any objections, it is stated that the WP(C).No.8217 OF 2015 3 Order had only prospective operation and was, therefore, not challenged. The petitioner submitted a fresh application for registration. However, the same was not considered. It is stated that, thereafter, the petitioner received Ext.P4 communication dated 27.04.2011. The relevant portion of Ext.P4 read as follows:
"That you were availing concessional rate of postage @ 25 ps. per copy for posting of Book Packets as Registered News Paper. In the Year January, 2006 the registration of "Book Review" weekly published by you has been registered for availing the concessional rate with the Department. However, on a review of different issues and volumes of 'Book Review' published during 2005-2006, it was noticed that the weekly was not at all qualified for Registration as Registered Newspaper. The weekly weighing up to 50 grams contained only advertisement sheets with an order from attached Book named 'Knowledge Adventure'. The contents of these issues were the same. There was no political or other news relating to current topics. The publication had no bonafide list of subscribers. As such you availed the concessional rate illegally.
The rate applicable to Book Packet upto 50 grams was Rs.4/- per copy. Total number of copies posted during 2004 and 2005 alone, was 40,38,993 and the postage collected was only Rs.10,09,748,25. The loss sustained by the Department is Rs.1,51,46,223-.75. The Registration was again renewed in January 2006 for a period of three years and the loss continued. The assessment for the year 2006-2007 is as follows:
A. no. of copies posted during Jan. 2006 to Feb. 2007 ...... 3,297,000 B. Postage collected (32,97,000. @Ps25)............. Rs.8,24,250/- C. Postage due @ Rs.4/- for 32,97,000 copies .......... Rs.13188000/- D. Loss of revenue (C-D)............................................ Rs.1,23,63,750/-
Thus a total leakage/loss of Revenue to the Department works out to Rs.2,75,09,974/-
As a matter of fact for realizing such loss, a Bank Guarantee was insisted by the Department. Though you have furnished a Bank Guarantee of Rs.1,35,400/- only, even that amount also could not be realised because the period of Bank Guarantee was also expired on 6- WP(C).No.8217 OF 2015 4 1-2009.
In the above circumstances you are hereby requested to deposit the loss of Rs.2,75,09,974/- with interest thereon from 2007, within a period of 30 days. Failure to which appropriate action will be initiated for recovering the said amount invoking Section 12 of the Indian Post office Act and also Criminal and Civil remedies will also be initiated against you."
4. The petitioner had submitted objections to Ext.P4. However, Ext.P6 reply was received with a copy of an Order dated 10.06.2009, rejecting the request for postal registration. It is stated that Ext.P8 revenue recovery proceedings have also been initiated under the provisions of the Kerala Revenue Recovery Act, 1968. The petitioner challenges Ext.P4 on the ground that Ext.P3 had no retrospective operation and, therefore, the computation of arrears for postage of articles before the date of Ext.P3 was untenable. The main argument raised in the writ petition is that the Kerala Revenue Recovery Act cannot be pressed into service to recover the amounts due to the Postal Department and that Ext.P8 is totally incompetent.
5. The learned counsel for the petitioner also relies on the provisions of Sections 11 and 12 of the Act to contend that even in case any postage is chargeable or due, the same ought to have been recovered from the addressee and it is only in a case, where the postal article is returned to the sender that the sender becomes liable to pay any WP(C).No.8217 OF 2015 5 amounts.
6. It is further contended that, in the absence of any action having been taken under Section 23 of the Act, the Postal Department cannot raise a claim for arrears of postage as against the petitioner. It is further contended that the Kerala Revenue Recovery Act would not be available for recovery of amounts due to the Central Government, since there is a specific enactment for recovery of such dues to the Central Government. It is stated that the "Government" referred to in the Kerala Revenue Recovery Act is only the State Government, since the enactment is a State enactment and therefore, the invocation of the provisions of the Kerala Revenue Recovery Act was incompetent. Reliance is placed on the decision of the Apex Court in CESC Ltd. v. Chief Post Master General and Others [2012 KHC 4306].
7. A counter affidavit has been placed on record by the 1 st respondent. It is stated that the loss of Rs.2.74 Crores was detected in the P & T Audit in 2007 due to transmit of ineligible publication by the petitioner under the category of Registered Newspapers, which was referred to the CAG ( Comptroller and Auditor General). It is stated that Section 68 of the Kerala Revenue Recovery Act, 1968 provides that all sums due to the Government on account of quit rent of revenue other WP(C).No.8217 OF 2015 6 than public revenue due on land and all sums declared by any other law for the time being in force to be recoverable as arrear of public revenue due on land or land revenue; and all fees and other dues payable by any person to the Government may be recovered under the provisions of this Act.
8. It is stated that Ext.R1(a) application of the petitioner for registration, itself, provided that the competent authority may cancel or refuse the registration, if he is satisfied that the provisions of the rule do not continue to be fulfilled. It is stated that since the petitioner's postal articles did not comply with the condition regarding nature of content, the licence granted was cancelled on 02.04.2002. Thereafter, the license was renewed by Ext.R1(b) and the petitioner had remitted a penalty of Rs.7,794/- on 02.01.2006 for violation of the conditions of the licence. It is stated that by Ext.R1(e), the licence was further renewed from 2006 to 2008 and licence for posting without prepayment was also granted by Ext.R1(f). However, violations were noticed and the licence was cancelled by Ext.P4. Exts.R1(h) to R1(k) memos issued in audit are also produced to contend that various sums were found due from the petitioner. Thereafter, the appeal preferred against the cancellation of licence was also rejected as per Ext.R1(n). It is stated that as the postings were already transmitted and delivered to the addressee, the petitioner, as a WP(C).No.8217 OF 2015 7 publisher, is bound to pay the difference in postage since the petitioner was availing the facility of WPP (Without Prepayment Postage) vide Ext.R1(c). It is stated that any allegation to the contrary is completely misconceived. Several contentions have been urged with regard to the legality of the demand and the applicability of the Kerala Revenue Recovery Act, 1968.
9. It is further contended by the learned Central Government Counsel appearing for the respondents that Section 12 of the Indian Post Office Act, 1898 read with Section 72 of the Act would make it clear that the arrears of postage are liable to be recovered in the same manner as "fine" from the petitioner. It is stated that since the amount is admittedly due to the Government and Section 68 of the Kerala Revenue Recovery Act empowers the recovery of amounts due as fines and other amounts due to the Government through the process provided in the said Act, there is absolutely no illegality. The learned Central Government Counsel also relies on Section 2(23) of the General Clauses Act, 1897 to contend that "Government" or "the Government" shall include both the Central Government and any State Government.
10. I have considered the contentions advanced. It is not in dispute before me that the petitioner had a licence under Section 9 of the Indian WP(C).No.8217 OF 2015 8 Post Office Act, 1898. Though it is contended that there were violations on the part of the petitioner, those violations are not the subject matter of this writ petition. The licence of the petitioner stood cancelled by Ext.P3 communication dated 13.02.2007. The said communication states that the licence granted on 03.01.2006 to post the publication books review at concessional postage rate is "cancelled with immediate effect" as the publication is found to have the defects mentioned therein. The question therefore to be considered is whether the amounts stated in Ext.P4 could be collected from the petitioner in respect of newspapers posted during the period when the petitioner had a valid licence. A reading of Ext.P4 would show that amounts are demanded being the difference in the postage during the period 2004-05 to February 2007. The amount is calculated at Rs.2,75,09,974/-. Even though detailed counter affidavits has been placed on record, the respondents do not contend that there was any retrospective effect to the cancellation of the licence or that the amounts calculated are with regard to periods when the petitioner's licence was not current. Ext.R1(e) proceedings would show that renewal of registration for posting had been granted for the calender year 2006 to 2008. However, Ext.P4 specifically refers to postage due for the period from January 2006 to February 2007 as well. Therefore, it is clear that Ext.P4 contains amounts of postage calculated in respect of periods when WP(C).No.8217 OF 2015 9 the petitioner had a valid registration to post at concessional rates as well.
11. In the above view of the matter, I am of the opinion that the calculation as per Ext.P4 is itself erroneous. Moreover, even in case a proper calculation is effected, taking note of articles posted only at a time when the petitioner did not have a valid registration, the question would be whether such amounts could be released under the Kerala Revenue Recovery Act, 1968.
12. Section 68(1) of the Kerala Revenue Recovery Act, 1968 reads as follows:
"68. Application of the Act for the recovery of certain other dues to Government.-
(1) All sums due to the Government on account of quit rent or revenue other than public revenue due on land;
all moneys due from any person to the Government which under a written agreement executed by such person are recoverable as arrears of public revenue due on land or land revenue, and all specific pecuniary penalties to which such person renders himself liable under such agreement or contract;
all sums declared by any other law for the time being in force to be recoverable as arrear of public revenue due on land or land revenue; and all fees and other dues payable by any person to the Government, may be recovered under the provisions of this Act."
13. The provisions relied on by the learned Central Government Counsel, ie, Section 2 of the General Clauses Act begins by saying that in WP(C).No.8217 OF 2015 10 this Act and in all Central Acts and Regulations made after the commencement of this Act, unless there is anything repugnant in the subject or context,.....
(23) "Government" or "the Government" shall include both the Central Government and any State Government.
The Kerala Revenue Recovery Act is not a Central Act. Therefore, sub section 23 would have no application to the same. In the above view of the matter, the contention of the learned Central Government Counsel that the language in Section 68 would apply to amounts due to the Central Government also has to fail.
14. Moreover, Section 12 of the Indian Post Office Act refers to the power of the Post Master General or the Authorized Officer to recover postage and other sums due in respect of postal articles as if it were a fine imposed under the Act by any Magistrate having jurisdiction, where that person may for the time being be resident. Section 3(4) of the Code of Criminal Procedure provides that where, under any law, other than this Code, the functions exercisable by a Magistrate relate to matters which involve the appreciation or sifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial or would have the effect of sending him for trial before any Court, they shall, subject to WP(C).No.8217 OF 2015 11 the provisions of this Code, be exercisable by a Judicial Magistrate. Section 72 of the Indian Post Office Act provides for prosecutions under the Act and states that no Court shall take cognizance of an offence punishable under any of the provisions mentioned therein, unless upon a complaint made by order of, or authority from, the Director General or a Post Master General. It is, therefore, clear from a composite reading of Section 12 and Section 72 of the Post Office Act that the recovery of amounts due in respect of postal articles is to be made by a Magistrate having jurisdiction where the person may for the time being be resident. If that be so, the amount would have to be realized taking recourse to a judicial penal proceedings before a jurisdictional Judicial Magistrate in terms of Section 3(4) of the Code of Criminal Procedure. The contention of the respondents that the amount is directly liable to be realized by recourse to the Revenue Recovery Act of the State, therefore, cannot be accepted. If the proceedings are to be under Section 12, recourse to an Executive Magistrate under the Revenue Recovery Act would not be possible.
15. In view of the foregoing discussions, I am of the opinion that Ext.P4 computation as well as Ext.P8 proceedings initiated under the Kerala Revenue Recovery Act to recover amounts due to the Postal Department are incompetent. The writ petition is, therefore, ordered WP(C).No.8217 OF 2015 12 quashing Ext.P4 as well as Ext.P8. Further proceedings for computation of amounts actually due to the petitioner in respect of periods when there was no registration for posting at concessional rate can be taken with due notice to the petitioner and in accordance with the provisions of the Act, in case such proceedings are legally permissible in law at this distance in time.
This writ petition is ordered accordingly.
Sd/-
ANU SIVARAMAN JUDGE np WP(C).No.8217 OF 2015 13 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF RENEWAL MEMO DATED
11.10.2002
EXHIBIT P2 TRUE COPY OF RENEWAL MEMO DATED 3.1.2006
EXHIBIT P3 TRUE COPY OF COMMUNICATION DATED 13.2.2007
CANCELLING THE REGISTRATION
EXHIBIT P4 TRUE COPY OF COMMUNICATION DATED 27.4.2011
FROM 3RD RESPONDENT CLAIMING HIGHER POSTAGE RETROSPECTIVELY EXHIBIT P5 TRUE COPY OF THE OBJECTION DATED 7.6.2011 ISSUED BY PETITIONER EXHIBIT P6 TRUE COPY LETTER IN REPLY DATED 27.1.2012 EXHIBIT P7 TRUE COPY OF COMMUNICATION DATED 10.6.2009 REJECTING GRANT OF REGISTRATION EXHIBIT P8 TRUE COPY OF REVENUE RECOVERY NOTICE DATED 10.11.2014 IN FORM 1 EXHIBIT P9 TRUE COPY OF REVENUE RECOVERY NOTICE DATED 10.11.2014 IN FORM 10 RESPONDENT'S/S EXHIBITS:
EXHIBIT R1(A) TRUE COPY OF APPLICATION DATED 06.12.2005 SUBMITTED BY THE PETITIONER EXHIBIT R1(B) TRUE COPY OF MEMO NO.KL/CR/EKM/433/2002 DTD. 18.12.2002 ISSUED BY 2ND RESPONDENT EXHIBIT R1(C) TRUE COPY OF MEMO NO.KL/CR/EKM/WPP 137/2004-05 DTD 07.01.2004 ISSUED BY 3RD RESPONDENT EXHIBIT R1(D) TRUE COPY OF LETTER DATED 02.01.2006 OF PETITIONER EXHIBIT R1(E) TRUE COPY OF MEMO NO.KL/EKM/433/2006-08 DATED 03.01.06 ISSUED BY 3RD RESPONDENT WP(C).No.8217 OF 2015 14 EXHIBIT R1(F) TRUE COPY OF MEMO NO.KL/EKM/WPP-137/2006-08 DTD. 16.01.2006 ISSUED BY 3RD RESPONDENT EXHIBIT R1(G) TRUE COPY OF LETTER DATED 17.10.2005 OF PETITIONER EXHIBIT R1(H) TRUE COPY OF ROUGH MEMO NO.7/LAP/VII/HRO DATED 27.03.2007 ISSUED BY POSTAL & TELECOMMUNICATIONS AUDIT, TRIVANDRUM EXHIBIT R1(I) TRUE COPY OF ROUGH MEMO NO.21/LAP/VII/SSPO DATED 28.03.2007 ISSUED BY POSTAL & TELECOMMUNICATIONS AUDIT, TRIVANDRUM EXHIBIT R1(J) TRUE COPY OF STATEMENT SHOWING LOSS OF POSTAGE FROM 01/2006 TO 02/2007 AUDIT, TRIVANDRUM EXHIBIT R1(K) TRUE COPY OF BILLS FROM JANUARY 2006 TO FEBRUARY 2007 EXHIBIT R1(L) TRUE COPY OF DRAFT AUDIT PARA OF P&T AUDIT EXHIBIT R1(M) TRUE COPY OF CAG PARA EXHIBIT R1(N) TRUE COPY OF DIRECTORATE LETTER NO.22- 18/2007-PO DATED 11.10.2007 EXHIBIT R1(O) TRUE COPY OF LETTER NO.G/III-MISC DATED 28.11.2008 ISSUED BY 3RD RESPONDENT EXHIBIT R1(P) TRUE COPY OF REPLY OF PETITIONER DTD.
15.11.2008 EXHIBIT R1(Q) TRUE COPY OF LETTER NO.TECH/RNP/DLGS/07(PT) DATED 11.12.2008 ISSUED BY 2ND RESPONDENT EXHIBIT R1(R) TRUE COPY OF WEB SITE REPORT COLLECTED FROM REGISTRATION NEWS PAPER OF INDIA WEB SITE-
'WWW.RNI.NIC.IN' ANNEXURE R2(A) TRUE COPY OF THE JUDGMENT DATED 04.04.2019 IN WP(C) NO.21255 OF 2018 OF THIS HON'BLE COURT ANNEXURE R2(B) TRUE COPY OF THE JUDGMENT DATED 08.07.2019 IN WP(C) NO.1600 OF 2017 OF THIS HON'BLE COURT