Kerala High Court
Rajani.K vs The State Of Kerala on 11 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 11TH DAY OF AUGUST 2021 / 20TH SRAVANA,
1943
OP(KAT) NO. 123 OF 2021
AGAINST THE ORDER DATED 25-09-2020 IN OA (EKM) 692/2020
OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.
PETITIONER/APPLICANT :
RAJANI.K, AGED 64 YEARS, W/O. N.V BALAN,
NAMBIAR VEETTIL, ARIYALLOOR POST, PIN-678 312,
ARIYALLOOR VILLAGE, THIROORANGADI TALUK,
MALAPPURAM DISTRICT, SUB REGISTRAR (RETIRED),
TANUR SUB REGISTRAR OFFICE, MALAPPURAM ON
30.11.2012)
BY ADVS.SRI.KALEESWARAM RAJ, KUM.A.ARUNA
& KUM.THULASI K. RAJ
RESPONDENTS/RESPONDENTS :
1 THE STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
TAXES (E) DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM DISTRICT,PIN-695 001
2 THE INSPECTOR GENERAL OF REGISTRATION,
OFFICE OF THE INSPECTOR GENERAL OF REGISTRATION,
VANCHIYOOR, THIRUVANANTHAPURAM,PIN-695 035,
3 THE DISTRICT REGISTRAR (GENERAL),
MALAPPURAM , OFFICE OF THE DISTRICT REGISTRAR
(GENERAL), MALAPPURAM, U.P.HILL,
MALAPPURAM-676 505.
BY SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 11.08.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
OP (KAT) No.123 of 2021 2
ALEXANDER THOMAS & A.BADHARUDEEN, JJ.
------------------------------------------------
OP (KAT) No.123 of 2021
(Arising out of the impugned final order dated 25-09-2020 in
O.A(Ekm) No.692 of 2020 on the file of the KAT, Ernakulam Bench.)
----------------------------------------------------
Dated this the 11th day of August, 2021
JUDGMENT
ALEXANDER THOMAS, J.
Aggrieved by the inaction on the part of the respondents in the
W.P(C) in disbursing the full DCRG amount due to the petitioner on
the ground of liabilities alleged against her, the original applicant
had approached the Tribunal by filing the instant O.A (Ekm) No.692
of 2020, with the following reliefs [See page No.26 of the page book of the
O.P(KAT)] :
"i. Call for all the records leading to Annexure A1 and declare that
Annexure A1 as bad in law and quash Annexure A1.
ii. Direct the respondents to exonerate the applicant from the liability and
to release the DCRG amount forfeited by them.
iii. To allow such other relief that this Honourable Tribunal deem fit and
proper and allow the costs."
2. The Tribunal, after hearing both sides, has rendered the
impugned Ext.P7 final order dated 25-09-2020 in O.A(Ekm)
No.692 of 2020 with a specific finding that the alleged liability
amount of Rs.40,07,840/- sought to be finalized and fastened
against the original applicant in terms of the impugned Annexure A1
liability certificate dated 11-12-2017, is illegal and ultra vires for the
simple reason that the same has been issued much beyond the three
years outer time limit mandated under Note 3 to Rule 3 Part III of
KSR. That apart, it appears that the original applicant was not given
reasonable opportunity of being heard before the decision to fix
liability as referred to in Annexure A1. Accordingly, the Tribunal has
directed that the respondents in the O.A should immediately release
the full amount of DCRG due to the applicant within two months.
However, the Tribunal has made an observation that the quashment
of the impugned Annexure A1 liability certificate will not affect, if
any, of the respondents in the O.A to proceed against the original
applicant in accordance with law. Citing the said liberty, the
Government has now issued Ext.P8 G.O(Rt.) No.205/ 2021/TAXES
dated 13-03-2021, whereby it has been ordered that the liability to
the tune of Rs.40,44,053/- in relation to the very same transaction
in question, should be realized from the original applicant by way of
revenue recovery proceedings.
3. The original applicant has taken up a plea that the
Tribunal should not have given liberty to the respondents in the O.A
to proceed as against the original applicant for recovery of the alleged
liability and that the action of the Government in unilaterally seeking
to fasten the liability and recover the same through revenue
recovery proceedings in terms of Ext.P8 is illegal and ultra vires.
Further that the Tribunal should have adjudicated the specific plea
of the petitioner that since two fair values were fixed for the same
class of property at the relevant time, the original applicant cannot
be said to be made liable for any of the actions in relation to the
transactions relating to the registration of sale deeds, as admittedly
the valuation was done on the basis of one such fair value amount,
etc. It is on this pleas that the original applicant has chosen to file
the instant original petition so as to challenge Ext.P7 final order of
the Tribunal to the limited extent it has given liberty to the
respondent in the O.A and also for seeking of quashment of Ext.P8
G.O dated 13-03-2021, etc.
4. Heard Sri.Kaleeswaram Raj, the learned Advocate
instructed and assisted by Sri.Varun C.Vijay, the learned counsel
appearing for the petitioner in the O.P(KAT)/sole applicant in O.A
before the Tribunal and Sri.Saigi Jacob Palatty, the learned Senior
Government Pleader appearing for the respondents in the
O.P(KAT)/respondents in the O.A.
5. A brief recital to the factual aspects in this case may be
necessary: The petitioner/original applicant had retired from
service of the Registration Department on 30-11-2012 while holding
the post of Sub Registrar. Long after the expiry of the outer time
limit of three years mandated in Note 3 to Rule 3 Part III of KSR for
finalization and fixation of liabilities for recovery from the DCRG,
etc, R-3 in the O.A has issued Anneuxre A1 liability certificate dated
11-12-2017 alleging that an amount of Rs.40,07,840/- has been
finalized as liability against the original applicant for being
recovered as against the DCRG amount. The basis of the liability
alleged is that the original applicant, while exercising the statutory
duties of the Sub Registrar in accordance with the provisions in the
Registration Act has not collected the correct stamp duty payable for
the registration of various deeds and that the said amount of
Rs.40,07,840/- is the shortfall of the stamp duty and registration
fee that should have been actually collected by the original applicant
before those registered transactions. As indicated herein above, the
Tribunal after hearing both sides, has proceeded on the premise
that since the respondents in the O.A have sought to allege and
fasten the said liability without taking recourse to the departmental
proceedings or judicial proceedings as envisaged in the
operative portion of Rule 3 Part III of KSR, the only legally
acceptable course of procedure for the respondents in the O.A, to
have finalized any such liability was to act within the terms of Note
2 and Note 3 of Rule 3 Part III of KSR. For that purpose, the
respondents in the O.A should have issued show cause notice to the
incumbent/pensioner concerned and after affording reasonable
opportunity of being heard to the affected party, thereafter should
have fixed and finalized the liability, and that too, within the outer
time limit of three years from the date of retirement of the
incumbent/pensioner concerned. In the instant case, the outer time
limit of three years mandated in Note 3 to Rule 3 Part III of KSR has
indisputably expired on 30-11-2015. It is long thereafter that the
respondents in the O.A have unilaterally issued Annexure A1
liability certificate dated 11-12-2017 alleging the said huge liability of
Rs.40,07,840/- on the above count. More over it appears that the
respondents in the O.A had never given any reasonable opportunity
of being heard to the original applicant before the finalization of the
decision referred to in Annexure A1. For all these reasons, the
Tribunal has rightly found that the fixation and finalization of the
liability in terms of Annexure A1 is illegal and ultra vires for the
simple reason that it is in patent violation of the statutory procedure
envisaged in Note 3 to Rule 3 Part III of KSR. Hence the Tribunal
has rightly ordered that the full amount of DCRG should be released
by the respondents in the O.A to the original applicant within two
months. The learned counsel for the petitioner/original applicant
has apprised this Court that the said amount of DCRG has already
been released to her. However the Tribunal has observed in para 5
of Ext.P7 final order that the quashment of the impugned Annexure
A1 liability certificate will not affect the rights, if any, of the
respondents in the O.A to proceed against the applicant in
accordance with law.
6. In a similar case relating to the issue of expiry of the
three year outer time limit in Note 3 Part III of KSR, the Tribunal
has rendered Ext.P2 final verdict in O.A (Ekm) No.608 of 2019,
wherein while directing that the respondents in the O.A should
release the full amount of DCRG to the applicant therein on account
of expiry of the said mandatory time limit, the Tribunal has noted
that Ruling No.6 appended to Rule 116 of Part III of KSR stipulated
that the Government could recover liabilities, if the same are
computed against the pensioner beyond the three year period, by
resort to civil proceedings or by way of Revenue Recovery
Proceedings under the Kerala Public Accountants Act. Other than
Rule 3 and Rule 116, there is no provision in the KSR to regulate
these matters. Accordingly, the Tribunal in Ext.P2 verdict in the
other case had ordered that the disbursal of the full amount of the
DCRG will not stand in the way of the respondents in the said O.A
for proceeding against the applicant therein as per the provisions of
Ruling No.6 to Rule 116 of Part III KSR by resort to either civil suit
or Revenue Recovery Proceedings under the Public Accountants
Act, etc. The Tribunal in Ext.P2 observed that going by the provision
contained in Ruling No.6 of Rule 116 of Part III KSR, the
Government may either resort to the remedy of a civil suit or may
resort to the provisions of revenue recovery proceedings as supra.
However, in that regard it may be pertinent to refer to the statutory
provision contained in Ruling No.6 appended to Rule 116 of Part III
KSR, which reads as follows :
" 6. If in any case the amount withheld on the death-cum-
retirement gratuity or the cash deposit, or the surety bond taken
from the employee has been released on the expiry of one year
after the date of retirement without the liabilities being finalised
and adjusted, or it is not adequate to cover the liabilities finally
fixed, action will be taken against him under Rule 3 of Part III,
Kerala Service Rules to make up the loss by withholding,
withdrawing or effecting recoveries from the pension sanctioned.
If action under Rule 3 ibid is not possible due to the expiry of the
time limit prescribed for such action, or due to any other reason,
the retired employee will be proceeded against in a Civil Court
for recovering the pecuniary loss caused to Government."
A reading of Ruling No.6 appended to Rule 116 makes it clear that
there is no stipulation therein that the authority concerned could
also resort to revenue recovery Proceedings under the Public
Accountants Act. Hence the above said observations in Ext.P2 order
of the Tribunal may not be fully correct.
7. However, it has to be borne in mind that the legislature
has enacted the Kerala Public Accountants Act, 1963 (State Act 37 of
1963), the preamble to which Act states that it is an Act to
consolidate and amend the laws relating to prevention of loss to the
Government by the default or misconduct of public accountants in
the State of Kerala. Sec. 2(b) of the said Kerala Public Accountants
Act, 1963 defines the 'Public Accountant' as follows :
"Sec.2. Definitions.--In this Act, unless the context otherwise-
requires,--
(a)......
(b) 'Public accountant' means a person who, by reason of
being employed in the service of the Government or of any other
authority or institution notified by the Government in this behalf from
time to time in the Gazette, is entrusted with the receipt; custody, possession
or control of any moneys or securities for money, documents, or other
property belonging to the Government, or to any such authority or
institution notified as aforesaid, or who, in his capacity as Government
servant, or servant of any such authority or institution, is entrusted with the
receipt, custody, possession or control of any moneys or securities for
money, documents or other property belonging to any person or persons or
to any institution for and on behalf of the Government or any such authority
or institution, as the case may be, and includes a person who is, or has been,
a Government Law Officer.
Sec.3 of the said Act deals with the procedure for furnishing
statement of particulars of claim to be drawn up by the Collector or
Head of the Department. Sec. 4 thereof deals with the realisation of
money and recovery of securities, etc., from the public accountant.
Sec.5 of the said Act deals with seizure and attachment of property
of public accountant, etc.
8. A Division Bench of this Court in para 3 of the decision in
Paramu Pillai v. District Collector [1989(1) KLT 224] has held
that the definition of the expression of Public Accountants in the
Kerala Public Accountant Act, 1963 makes it clear that it is not every
employee in the service of Government, who can be regarded as a
public accountant and it is only an employee who is entrusted with
the receipt, custody, possession or control of any moneys or
securities for money, documents, or other property belonging to the
Government or who, in his capacity as Government servant is
entrusted with the receipt, custody, possession or control of any
moneys or securities for money, document or other property
belonging to any person or persons or to any institution for and on
behalf of the Government. Further, the Division Bench has also
held that what is contemplated in Sec. 3(1) of the said Act is that the
claim on public accountant for moneys, securities for money,
documents or other property. Though Sec. 3(1) of the Act does not
speak of entrustment of money or property etc., Sec. 3(1) can be
invoked only as against public accountant and so the incumbent
concerned should necessarily satisfy the definition of 'public
accountant' in terms of Sec.2(b) of the said Act and that a
Government servant can fulfill the definition of "public accountant"
in terms of Sec. 2(b) only when there is such entrustment, etc. and
where there is no entrustment of moneys, securities for money,
documents or other property to the Government servant concerned,
then he/she will not fulfill the definition of "Public Accountant" in
terms of Sec. 2(b) and hence the provisions contained in the said Act
including Sec. 3(1) cannot be pressed into service as against such a
Government servant. It is profitable to refer to para No.3 of the
judgment of the Division Bench of this Court in Paramu Pillai's
case supra [1989(1) KLT 224, pp.225-226), which reads as follows :
"3.S.3 of the Act which has been invoked by the authorities in
this case may be extracted as follows :
"Statement of particulars of claim to be drawn up by Collector
of Head of Department-
(1) Whenever it appears to the Collector or the Head of a
Department of the Government or other authority or
institution notified under clause (b) of S.2, under whom a
public accountant is or was serving, that the Government or
such authority or institution have or has a claim on such public
accountant for moneys, securities for money, documents or
other property, he shall draw up a statement of the particulars
of the said claim, and if he is not a Collector, may send the
statement to the Collector in whose jurisdiction such account is
or was employed.
(2) The Collector when he has himself recorded a statement as
aforesaid may, and on receipt of such a statement from the
Head of a Department of the Government, other authority or
institution shall by writing under his official seal and
signature, require the moneys, securities for money,
documents or other property, to be delivered either
immediately to the person bearing the said writing or to such
other person on such date and at such place as the writing may
specify. Such notice of demand may be served on the public
accountant in the same manner as a summons is served on a
defendant under the Code of Civil Procedure, 1908.
(3) If the public accountant does not satisfy the demand, but
appears and objects to the claim wholly or in part, the Collector
shall enquire into the objection and record a decision."
Sub-s. (1) of S.3 makes it clear that whenever the authority is
satisfied that there is a claim on the public accountant for
moneys, security for money, documents or other property, that
a statement of particulars of such a claim is required to be
drawn. The same is required to be served on the public
accountant as provided in sub-s. 2 and if the public accountant
does not satisfy the demand and objects to the claim, the
Collector is required to enquire info the objections and record
his decision as required by sub-s. (3). The provisions of S.3 can
be invoked against the public accountant in respect of a claim
for moneys, security for money, documents or other property.
The expression 'public accountant' has been defined in S.2 (b) of
the Act as follows:
"2(b) "public accountant" means a person, who, by reason of
being, employed in the service of the Government or of any
other authority or institution notified by the Government in
this behalf from time to time in the Gazette, is entrusted with
the receipt, custody, possession or control of any moneys or
securities for money, documents, or other property belonging
to the Government or to any such authority or institution
notified as aforesaid or who, in his capacity as Government
servant, or servant of any such authority or institution, is
entrusted with the receipt, custody, possession or control of any
moneys or securities for money, document or other property
belonging to any person or persons or to any institution for
and on behalf of the Government or any such authority or
institution, as the case may be."
As we are not concerned in this case with the person employed
by any authority or institution other than the Government, it is
unnecessary to advert to them. We are concerned in this case
with the appellant who was employed in the service of the
Government as a Village Officer. The definition of the
expression "public accountant" makes it clear that it is not
every employee in the service of the Government that can be
regarded as a public accountant. It is only an employee who is
entrusted with the receipt, custody, possession or control of any
moneys or securities for money, documents or other property
belonging to the Government or who, in his capacity as
Government servant is entrusted with the receipt, custody,
possession or control of any moneys or securities for money,
document or other property belonging to any person or
persons or to any institution for and on behalf of the
Government.Thus a Government servant becomes a public
accountant (1) if he is entrusted with the receipt, custody,
possession or control of any moneys or securities for money,
documents or other property belonging to the Government or
(2) if he is entrusted with the receipt, custody, possession or
control of any moneys or securities for money, document or
other property belonging to any person or persons or to any
institution for and on behalf of the Government. What sub-s. (1)
of S.3 contemplates is the claim on public accountant for
moneys, securities for money documents or other property.
Though sub-s. (1) of S.3 does not in terms speak of entrustment,
as the claim can be enforced only against a public accountant,
having regard to the definition of the expression 'public
accountant' contained in S.2 (b) which renders an employer in
the service of the Government a public accountant only when
there is such entrustment, it has to be held that the claim
contemplated by sub-s. (1) of S.3 on the public accountant can
only be for the purpose of recovering the loss caused in respect
of the moneys, securities for money, documents or other
property entrusted to the public accountant either belonging to
the Government or belonging to any person or persons or to
any institution for and on behalf of the Government. If there is
no entrustment of moneys, securities for money, documents or
other property to the public accountant, the provisions of S.3 of
the Act cannot be invoked. If the loss is caused by the conduct
of a person employed in the service of the Government, by
negligence or misconduct otherwise than in respect of moneys,
securities for money, documents or other property entrusted to
him, the remedy available to the State to recover the said loss is
either by resorting to the pro visions of the Kerala Civil
Services (Classification, Control and Appeal) Rules or by
instituting an appropriate suit for recovering the loss or
damages caused by the negligence or misconduct on the part of
the Government servant. The procedure prescribed for
claiming the amount under S.3 is a summary one. No further
appeal or revision is provided against the decision of the
collector rendered in this behalf, because what the Act
contemplates is only the recovery of loss in respect of moneys
entrusted to the public accountant either belonging to the
Government or belonging to any person or persons or to any
institution for and on behalf of the Government. It is obvious
that the provisions of the Act do not take into account the
various types of liabilities of the Government servant that may
be incurred on account of the negligence, misconduct etc. We
have therefore no hesitation in taking the view that the
provisions of the Act cannot be pressed into service where there
is no entrustment of moneys, securities for money, documents
or other property belonging to the Government or belonging to
any person or persons or to any institution for and on behalf of
the Government to a public accountant."
9. The dictum laid down by the Division Bench of this
Court in Paramu Pillai's case supra [1989(1) KLT 224(DB)] has
been subsequently followed by this Court in a decision in
Parameswaran v. State of Kerala [2009(4) KLT SN 23(case
No.26) para 9]. In Paramu Pillai's case supra [1989(1) KLT 224
(DB)] the Division Bench dealt with a case of an incumbent, who
was a Village Officer in Government service. The case of the
Government was that the said Village Officer was entrusted with the
responsibility of preparing records for acquisition of land comprised
in Survey numbers of the Village concerned and that he had
prepared the records and sketch showing the total extent of land to
be acquired admeasuring 5 Acres and on that basis, the
compensation was paid to the land owner on completion of the land
acquisition. Subsequently, it came to the notice of the Government
that the land acquired measured only 4 acres and 8 cents and hence
the Government was thus constrained to pay additional
compensation in respect of 92 cents though the said extent of
property was not actually acquired only on account of the reason
that the appellant Village officer had given wrong measurements of
the land acquired as 5 acres. It is on this ground that the State
Government had pressed into service the provisions contained in
the Kerala Public Accountants Act, 1963. The Division Bench of this
Court in the said judgment ultimately held that, in the facts of that
case there is no question of entrustment of any moneys, securities or
property to the Village officer concerned, whose duty was to prepare
the records and sketch showing the total extent of land to be
acquired. Hence on this ground it was held that the initiation of
proceedings under the Kerala Public Accountants act, 1963 as
against the said incumbent, who was holding the post of Village
officer, was held to be ultra vires and illegal inasmuch as the said
employee will not satisfy the definition of 'public accountants' in
terms of Sec. 2(b) of the Act.
10. Sri.Kaleeswaram Raj, the learned counsel appearing for
the petitioner/original applicant would contend that in the instant
case,indisputably the original applicant was holding the post of Sub
Registrar at the relevant period and the duty of the Sub Register is
to examine the documents presented for registration in terms of the
provisions contained in the Registration Act and to ensure that the
requisite conditions of the Transfer of Property Act and Registration
Act are fulfilled and also to ensure that the stamp duty is paid in
terms of the provisions contained under the Kerala Stamp Act and
the Rules framed thereunder. Further it is pointed out that at the
relevant time, there were two fair values notified for the same class
of property and the valuation was admittedly done on the basis of
one such notified value and hence there was no dereliction of duty
as Sub Registrar. The crucial argument made by the learned counsel
for the petitioner is that the petitioner/original applicant as Sub
Registrar has never been entrusted with any moneys, securities or
property as understood in Sec. 2(b) and the duty of the Sub
Registrar has no nexus whatsoever with entrustment of any moneys,
securities or property as envisaged in Sec.2(b) of the Kerala Public
Accountants Act, 1963 and hence, such an incumbent will not fulfill
the definition of "Public Accountant" in Sec. 2(b) of the Act. Hence
it is pointed out that going by the dictum laid down by the Division
Bench of this Court in Paramu Pillai's case supra [1989(1) KLT
224 (DB)], there is no question of pressing into service the provision
contained in the Kerala Public Accountants Act, 1963. Hence it is
pointed out that there is no question of resort to revenue recovery
proceedings after finalizing the liability in terms of the Kerala Public
Accountants Act in the facts and circumstances of the case. Per
contra, the learned Senior Government Pleader has refuted these
pleas and has contended that in the facts of this case, an incumbent
discharging duties as Sub Registrar, will fulfill the definition of
"Public Accountant" as per Section 2(b). The learned Senior
Government Pleader contended that Public Accountant is a person
entrusted with the receipt; custody, possession or control of any
moneys or securities for money, documents, or other property
belonging to the Government. The entrustment is coupled with a
duty and responsibility and therefore the Sub Registrar has been
assigned with the duty and responsibility of collecting the
money/duty/fees legally due to the Government. Hence, the Sub
Registrar satisfy the definition of Public Accountant . In the nature
of the orders proposed to be passed by this Court in this case, we do
not feel it necessary to decide the issue as to whether or not an
incumbent discharging duties as a Sub Registrar will fulfill the
definition of "Public Accountant" as per Section 2(b). However, it is
declared that the legal principles on the subject have been already
laid down by the Division Bench of this Court in Paramu Pillai's
case supra and it is for the Tribunal to apply those legal principles to
decide whether the post of Sub Registrar will fulfill the definition of
"Public Accountant" as per Section 2(b). We refrain from deciding
that issue as the Tribunal has not decided it in the instant case.
11. After hearing both sides, it is seen that in the instant
case, the Tribunal, while rendering Ext.P7 final verdict, has not
exclusively stated therein that the liberty is accorded to the
respondents in the O.A to proceed in terms of the Revenue Recovery
Proceedings under the Kerala Public Accountants Act (unlike the
final order of the Tribunal at Ext.P2). Now the Government has
issued Ext.P8 G.O dated 13-03-2021 (after the rendering of Ext.P7
final order by the Tribunal on 25-09-2020) not stating that they
have followed the procedure in the Kerala Public Accountants Act or
that they pressed into service the Kerala Public Accountants Act.
What is stated in Ext.P8 is that the liability (presumably referred to
in Annexure A1) shall be recovered from the petitioner by resort to
Revenue Recovery Proceedings, in view of the enabling powers
conferred under Ruling 6 of Rule 116 of Part III KSR. As mentioned
herein above, Ruling No.6 of Rule 116 does not stipulate that the
resort should be made to Revenue Recovery Proceedings, for
realizing such liability or that resort to be made to the Kerala Public
Accountants Act and then to proceed under the Revenue Recovery
Proceedings Act. Hence, in case the petitioner has any legally
justifiable grievances in respect of Ext.P8, then the same is
independent cause of action, which is to be independently or
separately agitated before the Tribunal as the court of first instance.
Government may be under the impression, presumably on the basis
of Ext.P2 verdict of the Tribunal in another case that either resort to
the Revenue Recovery Proceedings or resort to Public Accountants
Act with consequential resort to Revenue Recovery Proceedings is a
legally permissible course of action. Hence the issue regarding the
legality and correctness of Ext.P8 is to be challenged by the
petitioner separately before the Tribunal as the said Tribunal is a
court of first instance and it may not be right and proper for us to
get into the aspects based on Ext.P8, as a supervisory court. It has to
be borne in mind that the main challenge made by the petitioner is
as against Ext.P7 verdict to the Tribunal to the limited extent, which
has granted liberty to the respondents in the O.A to proceed in
accordance with law.
12. Further, the petitioner has also raised contention that
even otherwise in the facts and circumstances of this case, no
liability could have been legally fastened against the petitioner in
exercise of his his statutory duties as Sub Registrar for the simple
reason that at the relevant time there is no specific fair value fixed
for the subject property in terms of the provisions contained in the
Act and the Rules. In that regard, the petitioner has raised a
specific contention that at the relevant time during the registration
of the documents in question, two fair values were fixed for the
same classification and the petitioner had adopted one of the fair
values, which is now sought to be raised on the basis of alleged
liability. Further in the instant case, the Kerala Stamp Act has
provided for explicit provision in terms of Sec. 45(b)(3) thereof for
realization of any shortfall of stamp duty and registration fee and
the said provision has not been pressed into service in this case at
any point of time within the period of limitation. That in the special
statute, viz., the Kerala Stamp Act under which the petitioner has to
exercise her statutory powers, has provided for a special provision
for recovery of alleged short fall of stamp duty and that the non
invocation of the said remedy by the respondents herein would
preclude their right from taking any further action in the matter.
Since there was two fair values notified by the authorities for the
very same class of property, adopting one of the fair values so
statutorily fixed cannot be said to be an act amounting to create
personal liability on the Sub Registrar concerned, etc. Hence, in
view of these aspects, the petitioner's counsel vehemently argued
that even otherwise the respondents in the O.A could not have
legally fastened any liability against the petitioner and hence even
resort to a civil suit was impermissible in law, etc. and further that
these aspects of the matter have not been considered by the
Tribunal. Since Ext.P8 appears to be a separate cause of action, we
are of the firm opinion that it is for the petitioner to agitate all these
issues before the Tribunal by instituting a separate original
application mainly for the reason that Ext.P8 appears to be a
separate cause of action.
13. After hearing both sides, we make it clear that the legal
principles regarding the pressing into service of the Kerala Public
Accountants Act, 1963, is covered in terms of the judgment of the
Division Bench rendered in Paramu Pillai's case supra in
[1989(1) KLT 223(DB)]. On the petitioner filing a separate original
application, the Tribunal may consider as to whether the provisions
contained in Public Accountants Act could be legally pressed into
service in the facts and circumstances of the case and more
particularly, as to whether the petitioner who was holding the post
of Sub Registrar would satisfy the definition of "Public Accountants"
in terms of Sec. 2(b) of the said Act, etc, and consequently as to
whether action under Sec. 3(1) is permissible. If it is held that the
provisions contained in Kerala Public Accountants Act cannot be
pressed into service in the instant case, then there is no question of
consequently resorting to Revenue Recovery Proceedings for
recovering the liabilities that could be fixed in terms of the Kerala
Public Accountants Act. It is also well settled that it cannot be
permissible to straightaway resort to revenue recovery proceedings
without quantifying and finalizing the liabilities through a due
process as permitted by a statute. It is only after finalizing of
liability through such a due statutory process that the resort to the
procedure of Revenue Recovery Proceedings is permissible, as it is
by now well established that the provision contained in the Revenue
Recovery Act is only the procedure for recovering the liabilities
which are already finalized in accordance with law and the said
provision does not confer any independent substantive powers for
adjudication and finalization of the alleged liabilities. The
contention of the petitioner that she could not have been made
liable at all for the alleged lapses, in view of the aforementioned
aspects may also be duly adverted to by Tribunal. The learned
counsel for the petitioner submits on the basis of instructions that
the petitioner would prefer the original application before the
Tribunal within one month from the date of receipt of certified copy
of the order.
14. Solely for the purpose of preservation of the subject
matter of the lis, it is ordered that the operation and enforcement of
Ext.P8 Go(Rt) No.205/2021/TAX dated 13-03-2021 shall be kept in
abeyance for a period of two months from the date notified for
receiving certified copy of this judgment or till orders are passed by
the Tribunal on the stay application that may be moved by the
petitioner in the O.A to be filed, whichever is earlier. However, it is
made clear that in case the petitioner does not move an original
application along with stay application before the Tribunal within a
period of two months as above, then the above said interim order
directing to keep in abeyance Ext.P-8 shall then stand automatically
vacated, without any further orders from this Court. Hence, all
these issues mentioned hereabove are left open to be raised by the
petitioner before the Tribunal for its considered determination and
decision thereon, in accordance with law. It is also made clear that
the issue as to whether the liberty granted by the Tribunal in Ext.P7
could have been lawfully exercised by the respondents in the O.A in
the facts and circumstances of the case, is also thus left open to be
raised and decided by the Tribunal.
With these observations and directions, the above original
petition will stand disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
A. BADHARUDEEN, JUDGE
amk
APPENDIX OF OP(KAT) 123/2021
PETITIONER'S ANNEXURES :
ANNEXURE-A1 TRUE COPY OF THE LIABILITY CERTIFICATE
NO.E2-7320/2011 DATED 11.12.2017 ISSUED
BY THE 3RD RESPONDENT TO THE APPLICANT
ANNEXURE-A2 TRUE COPY OF THE ORDER NO.GO(RT)
NO.85/2020/TAXES OF THE 1ST RESPONDENT
HEREIN DATED 30.01.2020 ISSUED TO THE
APPLICANT AND ITS TRANSLATION
ANNEXURE-MA1 TRUE COPY OF THE CIRCULAR
NO.31/85/FIN.TRIVANDRUM DATED 10TH
APRIL, 1985 ISSUED BY THE GOVERNMENT OF
KERALA FINANCE (PENSION -B) DEPARTMENT
ANNEXURE-MA2 TRUE COPY OF THE ORDER IN OA (EKM)
NO.608/2019 OF THE HON'BLE KERALA
ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM, (ADDITIONAL BENCH
AT ERNAKULAM)
EXHIBIT P1 TRUE COPY OF THE MEMORANDUM OF THE OA
ALONG WITH ITS ANNEXURES
EXHIBIT P2 TRUE COPY OF THE MISCELLANEOUS
APPLICATION NO.1162/2020 FILED ON
14.08.2020 ALONG WITH THE DOCUMENTS
EXHIBIT P3 TRUE COPY OF THE REPORT DATED
10.05.2013 SUBMITTED VIDE LETTER
NO.M.7823/2012 BY THE 3RD RESPONDENT TO
THE 2ND RESPONDENT
EXHIBIT P4 TRUE COPY OF THE LETTER NO.M.7823/2012
DATED 10.06.2013 WRITTEN BY THE 3RD
RESPONDENT TO THE 2ND RESPONDENT
EXHIBIT P5 TRUE COPY OF THE LETTER NO.M.7823/2012
DATED 30.03.2015
EXHIBIT P6 TRUE COPY OF THE LETTER DATED
19.08.2016 WRITTEN BY THE 3RD
RESPONDENT TO THE 2ND RESPONDENT
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 25.09.2020
IN OA (EKM) NO.692/2020
EXHIBIT P8 TRUE COPY OF G.O(RT) NO.205/2021/TAXES
DATED 13.03.2021 ISSUED BY THE FIRST
RESPONDENT
