Kerala High Court
Mathew Joseph And Ors. vs Johny Sunny And Ors. on 24 June, 2004
Equivalent citations: III(2004)ACC420, (2005)ILLJ719KER
Author: P.R. Raman
Bench: P.R. Raman
ORDER P.R. Raman, J.
1. Petitioners are the legal representatives of one Baby Mathew who was murdered on March 29, 1989, while in employment under respondents 1 and 2. They preferred a claim before the Workmen's Compensation ; Commissioner (Deputy Labour Commissioner), Kottayam for compensation, on account of the death of Baby Mathew against respondents 1 and 2. Eventually, an award was passed the gist of which is produced as Exhibit 1 P1, dated March 31, 1997. As per Exhibit P1, an amount of Rs. 1, 35,569/-was awarded by way of compensation with interest at 12% from March 29,. 1989 - the date on which the death happened. As per the said order, the amount! was to be paid within 30 days from the date of receipt of the order failing which it was ordered that the entire amount should be recovered through revenue recovery proceedings. Respondents herein failed to pay the amount as 2 awarded and on application filed by the petitioners herein, the Workmen Compensation Commissioner initiated proceedings to recover the amount and requested the District Collector to recover the same under the provisions of the 1 Revenue Recovery Act.
2. In the statement filed by the Deputy Tahsildar, Taluk Office, Devikolam, for and on behalf of the District Collector, it is stated, that a request from the Commissioner of* Workmen's Compensation was received by him on June 25, 1998. However the District Collector could not recover the amount from respondents 1 and 2 obviously because the.. Tahsildar reported that there is no property" available to be proceeded with against them. The report of the Tahsildar is produced as Exhibit P3. According to the petitioners, the first respondent transferred the immovable properties in his ownership and possession by way of sale in favour of the third respondent on July 24, 1997 and a copy of the sale deed is produced as Exhibit P4. Exhibit P4 would show that the same had been registered at Devikolam Sub Registrar's Office. In the schedule of the sale deed Exhibit P4, description of the properties shown therein would show that the property situated in Devikolam in Iddukki District coming within the area of jurisdiction of the District Collector, Iddukki. It is contended that the said transfer was effected in favour of the brother-in- law of the first respondent with an intention to defeat or delay the recovery of the amount due to the petitioners. The third respondent is the assignee in whose favour the sale is effected and according to the petitioner, the said transfer is hit by Section 44(2) and (3) of the Revenue Recovery Act.
3. Though notice was issued none of the party respondents has entered appearance. Originally notice could not be served and paper publication has been effected as per orders passed in I. A. 15838/2002. On behalf of the 4th respondent, a counter statement alone is filed.
4. In the counter statement dated February 26, 2000 filed by the Deputy Tahsildar on behalf of the District Collector, it is stated that the first respondent sold the property of an extent of 4 acres as per sale deed 2239/97 dated July 24, 1997 of the Sub Registrar's Office, Devikolam to one Tojo, son of Mathew, Mannummal House, Moonarkara, KDH, Village Devikolam, Iddukki District and that the said transferee Tojo is a relative of the first respondent Johny Sunny. It is also stated that the first respondent has no landed properties in Devikolam Taluk of Iddukki District and that he is now residing at Aluva. It is further stated that the requisition for recovery was received by the District Collector's Office on June 25, 1998 from the Deputy Labour Commissioner, 1 Kottayam and demand notice under Section 7 was issued to the first respondent on August 7, 1998 through the Village Officer, Vellathuval by the Tahsildar, Devikolam.
5. Section 31 of the Workmen's Compensation Act, 1923 provides that the Commissioner may recover as an arrear of land revenue any amount payable by any person under the Act whether under an agreement for payment of compensation or otherwise and the Commissioner shall be deemed to be a public officer within the meaning of Section 5 of the Revenue Recovery Act, 1890. Section 5 of the Revenue Recovery Act, 1890 provides that where any sum is recoverable as an arrear of land revenue by any public officer other than a Collector or by any local authority, the Collector of the District in which the office of that officer or authority is situated shall on the request of the officer or authority, proceed to recover the sum as if it were an arrear of land revenue which had accrued in his own District and may send a certificate of the amount to be recovered to the Collector of another district under the foregoing provisions of this Act as if" the sum were payable to himself. Section 31 of the Workmen's Compensation Act read with Section 5 of the Revenue Recovery Act, 1890 makes it abundantly clear that the amount,, determined by the Commissioner for Workmen's Compensation shall be recovered as an arrear of public revenue due on land and the Commissioner himself is an officer within the meaning of Section 5 of the Revenue Recovery Act, 1890.
6. Exhibit P1 award passed in this case would clearly show that the amount fell in arrear on expiry of the 30 days period mentioned therein, i. e. it has fallen in arrears with effect from April 30, 1997 reckoning the period of 30 days from March 31, 1997 - the date of Exhibit P1. Admittedly, the transfer in this case was effected only on July 24, 1997. Therefore, in the present case, the transfer is hit by Section 44(2) of the Act. In para 4 of the original petition petitioners have contended that the transfer was made in favour of the third respondent who is the brother-in-law of the first respondent and that it was done fraudulently with the ulterior object of avoiding payment of the award amount to the petitioners. The consideration shown in the sale deed is meagre and so the execution of Exhibit P4 document is ab initio void. These averments are not rebutted by filing any counter affidavit in spite of public notice given to the parties as ordered by this Court.
7. Though the learned Government Pleader submitted that the request from the Workmen's Compensation Commissioner itself was received only on June 25, 1998 and as such Section 44(2) may not be attracted, I am unable to accept this argument for the reason that the amount becomes public revenue due on land not by virtue of any act of serving the demand under the Revenue Recovery Act. By virtue of Section 31 of the Workmen's Compensation Act read with Section 5 of the Revenue Recovery Act, 1890, there is a statutory declaration that it is deemed to be a public revenue due on land and the amount has become fallen in arrears on the expiry of 30 days and the transfer having been effected much later, the provisions of Section 44(2) will squarely apply and hence the District Collector is bound to ignore the transfer as contemplated under Section 44(2) of the Act.
8. The Apex Court in State of Kerala v. Radhamany 1996 (6) SCC 287 considered the scope of Section 44(3) of the Kerala Revenue Recovery Act. It was held that when the transfer is for grossly inadequate consideration, the burden to prove on the contrary is on the defaulter and the transferee. Application of Section 44(2) of the Act has also been considered in the said decision and it was held that the crucial question of application of sub-section (2) is as on the date when the arrears has fallen due and as to when the sale has been effected of the land over which the recovery could be fastened. It was also held that sub-section (3) of Section 44 does not contemplate of prior service of notice; but it only contemplates that arrears should become due before the sale was made and the sale must be in favour of a near relation or for grossly inadequate consideration and such a sale therefore, does not bind the Government. In that case, abkari dues were fell in arrears on April 1, 1969 and recovery proceedings were initiated only later under the Kerala Revenue Recovery Act on May 31, 1969 and a demand notice was issued on June 17, 1969. Therefore, it can be seen that a notice of demand is not a sine qua non for the purpose of making it as a public revenue due on land. It is the effect of the statutory provision as referred to above which deems the arrear under the Workmen's Compensation Act as a public revenue due on land and the amount has already fell in arrears on the expiry of 30 days period mentioned in Exhibit P1.
9. In such circumstances, the original petition is allowed. The District Collector, Iddukki shall proceed to recover the amount as per the provisions of the Revenue Recovery Act after issuing notice to the parties ignoring Exhibit P4 sale. In the circumstances, there will be no order as to costs.