Allowed

Selvan N.M v. State of Kerala

Kerala HC7 Nov 2016WP(C)/5475/2010

Case brief

AI extract

What is this about?

The Court allowed a writ petition challenging revenue recovery proceedings against a widow's only property land of 2.35 cents. The Court directed the respondents to write off Rs.2 lakhs of the alleged liability against the deceased husband and quashed the recovery proceedings citing applicable Government waiver orders.

What did the court decide?

Respondents directed to write off Rs.2 lakhs from liability and withdraw revenue recovery proceedings; Exhs. P11, P12 and subsequent proceedings to be quashed.

Selvan N.M Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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MONDAY, THE 7TH DAY OF NOVEMBER 2016/16TH KARTHIKA, 1938

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WP(C).No. 5475 of 2010 (H)

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PETITIONER(S) :

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SELVAM N.M, AGED 52 YEARS, W/O THE LATE V.NATARAJAN, VIRAVILASAM, MARKET ROAD, ELAPPARA.P.O, IDUKKI DISTRICT.

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BY ADVS. SRI.C.S.MANU SRI.ABHILASH AKBAR SRI.S.K.PREMRAJ SRI.T.B.SIVAPRASAD

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RESPONDENT(S) :

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1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF KERALA, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

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2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM.

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3. DEPUTY DIRECTOR(EDUCATION), THODUPUZHA, IDUKKI.

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4. DISTRICT EDUCATION OFFICER, IDUKKI.

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5. ASSISTANT EDUCATIONAL OFFICER, PEERMADE, IDUKKI DISTRICT.

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6. HEAD MASTER, GOVERNMENT U.P.SCHOOL, ELAPPARA, IDUKKI DISTRICT.

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7. DISTRICT PROJECT CO-ORDINATOR, D.P.E.P. THODUPUZHA, IDUKKI.

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..2/-

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..2..

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WP(C).No. 5475 of 2010 (H)

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8. DISTRICT COLLECTOR, IDUKKI.

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9. DEPUTY TAHSILDAR(RR), PEERMADE, IDUKKI DISTRICT.

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10. VILLAGE OFFICER, ELAPPARA VILLAGE, PEERMADE TALUK, IDUKKI DISTRICT.

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11. SUB-TREASURY OFFICER, PEERMADE SUB-TREASURY, PEERMADE, IDUKKI DISTRICT.

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BY SR. GOVERNMENT PLEADER SRI. SANTHOSH PETER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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WP(C).No. 5475 of 2010 (H)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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EXHIBIT P1: TRUE COPY OF THE LETTER DATED 01.05.2002 ISSUED BY THE 6TH RESPONDENT TO THE PETITIONER.

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EXHIBIT P2: TRUE COPY OF THE LETTER DATED 09.04.2002 ISSUED BY THE 7TH RESPONDENT TO THE 6TH RESPONDENT.

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EXHIBIT P3: TRUE COPY OF THE LETTER DATED 10.04.2002 ISSUED BY THE 7TH RESPONDENT TO THE 6TH RESPONDENT.

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EXHIBIT P4: TRUE COPY OF LETTER DATED 10.06.2002 ISSUED BY THE 7TH RESPONDENT TO THE PETITIONER.

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EXHIBIT P5: TRUE COPY OF THE ORDER DATED 17.01.2003 ISSUED BY THE 7TH RESPONDENT TO THE 6TH RESPONDENT.

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EXHIBIT P6: TRUE COPY OF THE LETTER DATED 13.02.2003 ISSUED BY THE 7TH RESPONDENT TO THE 6TH RESPONDENT.

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EXHIBIT P7: TRUE COPY OF THE SHOW CAUSE NOTICE DATED 10.03.2004 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER.

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EXHIBIT P8: TRUE COPY OF THE LETTER DATED 17.07.2003 ISSUED BY THE 5TH RESPONDENT TO THE 11TH RESPONDENT.

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EXHIBIT P8(A): TRUE COPY OF THE LIABILITY CERTIFICATE DATED NIL ISSUED BY THE 5TH RESPONDENT TO THE 11TH RESPONDENT ALONG WITH EXHIBIT P-8.

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EXHIBIT P9: TRUE COPY OF THE REPRESENTATION DATED 12.08.2003 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT.

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EXHIBIT P10: TRUE COPY OF THE REPRESENTATION DATED 24.03.2004 SUBMITTED BY THE PETITIONER TO THE 5TH RESPONDENT.

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EXHIBIT P11: TRUE COPY OF THE DEMAND NOTICE DATED 26.10.2009 ISSUED BY THE 9TH RESPONDENT TO THE PETITIONER UNDER SECTION 7 OF THE KERALA REVENUE RECOVERY ACT.

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EXHIBIT P12: TRUE COPY OF THE DEMAND NOTICE DATED 27.10.2009 ISSUED BY THE 9TH RESPONDENT TO THE PETITIONER UNDER SECTION 34 OF THE KERALA REVENUE RECOVERY ACT.

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EXHIBIT P13: TRUE COPY OF THE REPRESENTATION DATED 11.11.2009 SUBMITTED BY THE PETITIONER TO THE 9TH RESPONDENT.

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EXHIBIT P14: TRUE COPY OF THE REPRESENTATION DATED NIL SUBMITTED BY THE PETITIONER TO THE 8TH RESPONDENT.

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WP(C).No. 5475 of 2010 (H)

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EXHIBIT P15: TRUE COPY OF THE REPRESENTATION DATED 13.11.2009 SUBMITTED BY THE PETITIONER TO THE 8TH RESPONDENT.

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EXHIBIT P16: TRUE COPY OF THE LETTER DATED 16.11.2009 ISSUED BY THE 3RD RESPONDENT TO THE 8TH RESPONDENT.

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EXHIBIT P17: TRUE COPY OF THE LETTER DATED 01.01.2010 ISSUED BY THE 3RD RESPONDENT TO THE 8TH RESPONDENT.

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EXHIBIT P18: TRUE COPY OF THE BASIC TAX RECEIPT BEARING THANDAPPER NO. 5720 AND RECEIPT NO. 4365037 DATED 19.02.2009 ISSUED BY THE 10TH RESPONDENT TO THE PETITIONER.

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RESPONDENT(S)' EXHIBITS :

NIL

//TRUE COPY//

P.A.TO JUDGE.

Msd.

P.V.ASHA, J.

W.P.(C) No.5475 of 2010

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Dated this the 7^th day of November, 2016

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JUDGMENT

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The petitioner challenges the revenue recovery proceedings initiated against her only property having an extent 2.35 cents, without giving her the benefit of waiver of sum of Rs.2 lakhs available for the destitute families. Petitioner is the widow of late V.Natarajan, who died on 7.6.2001, while he was working as Headmaster, Government U.P. School, Elappara. The 2.35 cents of land is the only property which the family consisting of a widow and children has got. The revenue recovery proceedings were initiated against her towards the amount which was alleged to have been disbursed to the deceased Headmaster, for undertaking certain civil works in the school.

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As per Ext.P5 order of the District Project Co-ordinater, DPEP, Idukki, a sum of Rs.2,34,180/- (Rupees Two lakh thirty four thousand one hundred and eighty only) was found unutilsied by the petitioner's husband as against a sum of Rs.5,82,600/- (Rupees Five lakh eighty two thousand six hundred only) disbursed to him to carry out various civil works in the school. The DPEP, after verification of the bank accounts found that a sum of Rs.45,420/- (Rupees Forty five thousand four hundred and twenty only) alone remained in the account as

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balance, whereas the work done had incurred an expenditure of Rs.2,79,600/- (Rupees Two lakh seventy nine thousand six hundred only) only as on the date of death of the petitioner's husband. By Ext.P5 order, the District Project Co-ordinator arrived at a finding that the petitioner's husband had withdrawn the money unnecessarily violating the standing rules and directed the petitioner to refund a sum of Rs.2,34,180/- (Rupees Two lakh thirty four thousand one hundred and eighty only).

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Before issuing Ext.P5 order, the District Project Co-ordinator had as per Ext.P4 notice issued on 10.6.2002 directed the petitioner to appear before him for a hearing on 22.6.2002 in respect of the works which could not be completed on account of the death of petitioner's husband, for which amount was already disbursed to him in advance. The petitioner submits that she was not aware of the steps taken by her deceased husband and she was not aware of the facts relating to the disbursement of the amount or the construction which was undertaken in the school. It is also stated that despite her request none of the respondents furnished her any details regarding the alleged work undertaken or the payments made. At any rate on the basis of Ext.P5 proceedings, the Assistant Educational Officer issued a show cause notice Ext.P7 on 10.3.2004 directing the petitioner to

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remit a sum of Rs.3,12,146/- (Rupees Three lakh twelve thousand one hundred and forty six only), failing which the entire DCRG towards her husband would be recovered and revenue recovery proceedings would be initiated for the balance amount. The petitioner had approached the Deputy Director of Education submitting Exts.P9 and P10 representations dated 12.8.2003 and 24.3.2004. However, the Deputy Tahsildar (Revenue Recovery) issued notice under section 7 of the Revenue Recovery Act on 26.10.2009 for recovery of a sum of Rs.2,06,414/- (Rupees Two lakh six thousand four hundred and fourteen only). This writ petition was filed at that stage, immediately after submitting representations Ext.P13 and Ext.P14 before the Deputy Tahsildar (RR) and the District Collector requesting to waive the liability of her husband. Thereafter the Deputy Director of Education, Idukki had by Ext.P16 letter dated 16.10.2009 conducted a hearing. By Ext.P17, the Assistant Educational Officer informed the District Collector, Idukki that a revised requisition for Rs.1,66,414/(Rupees One lakh sixty six thousand four hundred and fourteen only) had been issued for revenue recovery, after deducting a sum of Rs.40,000/- (Rupees Forty thousand only) which was due to the KSFE, Kattappana Branch. In all the representations petitioner requested to waive the liability upto the admissible limits as per the Government

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W.P.(C) No.5475 of 2010

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orders in force. But the respondents pursued the revenue recovery proceedings.

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It was at this stage that the petitioner approached this Court challenging revenue recovery proceedings. The case of the petitioner is that she is not liable to pay any amount due from her late husband and she is not in a position to explain the work carried out by her late husband or the expenditure. At any rate, she pointed out that the determination of the amount alleged to have been unspent by her late husband, without notice to her is not binding on her. She also stated that till the date of his death not even a notice was issued to him alleging any inaction on his part. Petitioner had submitted before the respondents that the works were undertaken jointly with the PTA. The details of expenses and balance amount would be with them. But no action was taken against them. None of the notices even referred to the PTA.

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The 9^th respondent has filed a counter affidavit stating that the revenue recovery proceedings were initiated on the basis of the requisition received from the Deputy Director of Education, Idukki. It is stated that the defaulter-petitioner holds an extent of 2.35 cents of land in Elappara village.

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The 3^rd respondent has also filed counter affidavit. It is

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W.P.(C) No.5475 of 2010

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seen that even though an elaborate counter affidavit is filed by the educational authorities including the AEO, District Project Officer etc., and saying that petitioner's husband did not complete the construction for which a sum of Rs.5,82,600/- (Rupees Five lakh eighty two thousand six hundred only) was entrusted to him, in none of the orders or the counter affidavit, the date on which the amount was entrusted to him, is stated. It is much after the death of the petitioner's husband that the notices were issued pointing out the constructions which were to be completed. The District Project Officer had allotted the amount for carrying out the civil works in the School for the Village Education Committee. It is stated that he utilized a sum of Rs.3,03,000/- (Rupees Three lakh three thousand only) alone and retained the balance amount with him but the balance amount deposited in the Bank was only a sum of Rs.45,420/- (Rupees Forty five thousand four hundred and twenty only) whereas the balance remained unspent was Rs.2,34,180/- (Rupees Two lakhs thirty four thousand one hundred and eighty only). A sum of Rs.77,966/(Rupees Seventy seven thousand nine hundred and sixty six only) was fixed as his departmental liability and the Deputy Director stated that the total amount fixed as his liability was Rs.3,12,146/- (Rupees Three lakh twelve thousand one hundred and forty six only) including the

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W.P.(C) No.5475 of 2010

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unspent balance of Rs.2,34,180/- (Rupees Two lakh thirty four thousand one hundred and eighty only). It is stated that show cause notice was sent to the petitioner and a hearing was held in which the petitioner was convinced of the liability from her husband. According to the Deputy Director of Education, the petitioner, being the legal heir of the deceased, is the only person liable to make good the loss sustained to Government. It is stated that the petitioner's husband kept the balance amount under his personal custody, without utilizing the full amount allotted for the civil works, without remitting the same back as and when he completed the works. Thus in the counter affidavit, the case is that the petitioner's husband did not return the balance amount after completion of the work.

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The case of the District Project Co-ordinator was that petitioner's husband did not complete the work undertaken. At the same time, the counter affidavit of the Deputy Director of Education says that after completing the work he did not return the balance amount. The District Project Co-ordinator while issuing Ext.P2 alleged that petitioner's husband did not submit vouchers and progress report of the works or made the refund, in the notice dated 09.04.2002. The date on which the amount was sanctioned is not referred to. What was stated was that the amount was received by the Headmaster and PTA

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W.P.(C) No.5475 of 2010

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president regarding VEC/School level activity centre and that as per the agreement executed by Headmaster and PTA President they had agreed to complete the work and submit the vouchers for settlement within 2 months. Ext.P3 also refers to the agreement executed jointly by the Headmaster and the President of PTA and receipt of 90% of the amount as advance. The respondents do not explain how the Headmaster alone becomes liable when the agreement was executed jointly with the President of the PTA. In all the communications, petitioner was directed to furnish the accounts. In Ext.P4 letter dated 10.06.2002 also, the petitioner was invited for a hearing for a discussion in respect of the works which could not be completed on account of the death of her husband. The contention of the petitioner is that the Government has issued orders waiving the liabilities of the Government servants who dies while in service. Respondents did not consider her request for waiver.

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After hearing the learned counsel on either side and the pleadings, it is seen that the petitioner has been asked to remit a huge amount towards the amount which allegedly remained unspent with her diseased husband. At the same time the respondents themselves in Exts.P2, P3 etc say that the works were to be executed jointly by the PTA and Headmaster. The amount was disbursed for executing

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W.P.(C) No.5475 of 2010

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certain civil works to the Headmaster and the convener of PTA . It is seen that agreement was executed by the Headmaster as well as the PTA jointly, apparently for executing the work under the supervision of the Headmaster as well as PTA. Petitioner is now asked to remit the unspent amount, when the President of the PTA is very much available and would be able to explain the delay caused. She was invited for a hearing merely for the sake of a formality, knowing fully well that she will not able to furnish any explanation. She was not even given the accounts relating to the alleged expenditure.

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At any rate petitioner had been requesting for waiver of the liabilities found against her deceased husband, pointing out the order issued by Government in GO(P)591/97/Fin dated 17.06.1997 which reads as follows:

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FINANCE (PENSION-B) DEPARTMENT G.O.(P)591/97/Fin. Dated, Thiruvananthapuram,17^th June, 1997 Abstract.- Government Employees who die in harness-Waiver of liabilities-Orders Issued. Read.-U.O. Note No.93726/Spl.A1/95/GAD. Dated 22.05.1997

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ORDER

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As a measure of compassion with the families of prematurely deceased State Government servants and All India Service Officers, the State Government are pleased to order in the unfortunate event of a Government employee dying-in-harness, his liabilities due to Government upto Rs.2 lakhs will be written off. Such 'liabilities' will include House Building Advance, Motor Conveyance Advance and any interest free loan given for the treatment of the employee. This facility would be available even where State Government employees or All India Service Officers were on deputation at the time of demise, or where the loan outstanding was sanctioned by some other Government [or Institution].”

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When the order dated 17.06.1997 provided that the

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liabilities which would be written off will include liabilities towards House Building Advance, Motor Conveyance Advance and any interest free loan given for the treatment of the employee, etc. the said order was modified by GO(P)919/97/Fin dated 27.10.1997 making the order applicable to all cases of outstanding liabilities pending settlement as on 17.06.1997 i.e the date of initial order of waiver. Thus all kinds of outstanding liabilities due to Government from Government servants who died while in service can be written off from 17.6.1997 onwards, upto a sum of Rs.2,00,000/- (Rupees Two lakh only). This order further provides that the departmental officers shall obtain sanction to write-off/wavier from Government and settle the claims of the officers who die-in-harness early.

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When Government directed to settle such matters at the earliest, the departmental officers were harassing the widow asking her explanations for the alleged unspent money even when the persons who were to supervise the work along with the deceased and executed agreement along with him and who were very much aware of the work undertaken were available. None of the respondents chose to look into the Government order relating to waiver in the correct perspective while resorting to proceed under the Revenue Recovery Act against the 2.35 cents of land of the petitioner, the only

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W.P.(C) No.5475 of 2010

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property of the family which lost the breadwinner, after making her husband alone liable, adopting a highly arbitrary and unreasonable attitude.

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The death of the Headmaster occurred as early as on 7.6.2011. In the counter affidavit, the 3^rd respondent stated that the department cannot waive the liability, since the amount fixed as liability was the amount entrusted to the Headmaster for the civil works and was kept in his personal custody, being the unspent balance of the amount given to him. But the Government order dated 27.10.1997 made the order dated 17.6.1997 applicable to all the outstanding liabilities. Even though Government is the 1^st respondent, no counter affidavit is filed at least regarding the claim for waiver.

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Under the above circumstances the respondents are directed to write off a sum of Rs.2 lakhs from the liability found against the petitioner's husband and to withdraw the proceedings for revenue recovery initiated against the petitioner. Exts.P11 and P12 demand notices and the subsequent proceedings if any for revenue recovery shall stand quashed.

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The writ petition is allowed to the extent indicated above.

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Sd/- P.V.ASHA JUDGE

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rkc/AS

Selvan N.M v. State of Kerala

Case brief

What is this about?

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Selvan N.M v. State of Kerala

Case brief

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