Quashed

Sreekala Kumari v. State of Kerala

Kerala HC12 Jul 2022WP(C)/2349/2013

Case brief

AI extract

What is this about?

Petitioner challenged prohibitory order restraining salary disbursement to recover charitable society loan dues. Court quashed order as violative of CPC Section 60(i) prohibitions on salary attachment limits while preserving right for lawful recovery proceedings.

What did the court decide?

Exhibit P2(a) prohibitory order restraining Grama Panchayat Secretary from disbursing petitioner's salary is quashed. Court reserves right for lawful recovery proceedings.

Sreekala Kumari Vs State of Kerala — Service and Employment | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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TUESDAY, THE 12TH DAY OF JULY 2022 / 21ST ASHADHA, 1944

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WP(C) NO. 2349 OF 2013

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PETITIONER:

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SREEKALAKUMARI

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LD CLERK, KIDANGOOR GRAMAPANCHAYATH,
KIDANGOOR, KOTTAYAM DISTRICT.

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BY ADVS.
SMT.G.VIDYA
SRI.RAJEEVKUMAR.K.S

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF REVENUE, THIRUVANANTHAPURAM - 695 001.

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2 THE DISTRICT COLLECTOR

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CIVIL STATION, KOTTAYAM DISTRICT - 686 013.

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3 THE REVENUE DIVISIONAL OFFICER

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REVENUE DIVISIONAL OFFICE, KOTTAYAM DISTRICT-686 013.

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4 THE TAHASILDAR R.R KOTTAYAM DISTRICT - 686 013.

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5 KIDANGOOR GRAMAPANCHAYATH REPRESENTED BY THE SECRETARY, KIDANGOOR, KOTTAYAM DISTRICT - 686 572.

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6 KHADI AND VILLAGE INDUSTRIES BOARD REPRESENTED BY THE PROJECT OFFICER, KOTTAYAM DISTRICT.

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ADDL.R6 IS IMPLEADED VIDE ORDER DATED 29.01.2013 IN
I.A.NO.1427 OF 2013.

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SRI.JUSTINE JACOB, SC
ADV.K.S.ARUN KUMAR
ADV.RAJEE P MATHEWS
GOVERNMENT PLEADER SMT.K.G.SAROJINI
SRI.N.GOPINATHAN NAIR, SC

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C)No.2349 of 2013

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JUDGMENT

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Dated this the 12^th day of July, 2022

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This writ petition is filed by the petitioner challenging Exhibits P2 notice and P2(a) prohibitory order issued by the Tahsildar (RR), Kottayam dated 04.12.2012 whereby as per Exhibit P1 the Secretary of the Kidangoor Grama Panchayat is directed to recover a portion of 12 months’ salary from the petitioner and deposit the same with the Tahsildar. However,

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as per Exhibit P2(a) order the Tahsildar has prohibited the Secretary of the Grama Panchayat from disbursing the salary and allowances to the petitioner. It is thus challenging the legality and correctness of Exhibits P2 and P2(a), this writ petition is filed.

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The subject issue relates to a loan availed by a charitable society by name Mannalil Charitable Society manufacturing ayurvedic medicines, from the Khadi and Village Industries Board – additional 6^th respondent. The loan availed was Rs.10,00,000/- in the year 1993 by pledging 8.09 ares of property including a building situated in Re-Sy.No.425/15 in

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W.P.(C)No.2349 of 2013

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Block No.31 of Peroor Village, Kottayam Taluk. Admittedly, repayment was defaulted, consequent to which, action was initiated by the Khadi and Village Industries Board under the Kerala Revenue Recovery Act, 1968. The case projected by the petitioner is that the property pledged was proceeded with and an amount of Rs.9,12,000/- was recovered during the year 2008. It is also the case of the petitioner that since substantial amounts are recovered, the proceedings initiated by the Tahsildar to recover the amounts from the salary of the petitioner, who was only a member of the charitable society, is illegal and arbitrary.

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When the writ petition was admitted to the files of this court, an interim order of stay against Exhibits P2 and P2(a) was granted by this court as early as on 29.01.2013, which is still in force. Even though notice was served on the Grama Panchayat as well as the Khadi and Village Industries Board and represented through counsel, no counter affidavit is filed. The 4^th respondent, namely, the Tahsildar has filed a counter affidavit justifying the stand adopted in Exhibits P2 and P2(a)

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W.P.(C)No.2349 of 2013

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and it is further submitted that the Khadi and Village Industries Board has made a requisition for realisation of an amount of Rs.19,34,484/- together with interest and costs from the above specified charitable society. It is also pointed out that amounts are due from the society towards the Kerala Government Sales Tax. That apart, it is stated that it is on the basis of the recovery certificate issued by the District Collector, Kottayam, notices under sections 7 and 34 of the Kerala Revenue Recovery Act, 1968 were issued to the defaulted society through the Village Officer. It is admitted that an extent of 8.09 ares of land comprising Re-Sy.No.425/15, Block No.31 of Peroor Village has been attached under section 36 of the Kerala Revenue Recovery Act and that the said property was later sold in public auction. However, it is stated that since an amount of Rs.8,43,600/- was due towards KGST and Rs.63,400/- towards collection charges, the amount due to the Khadi and Village Industries Board is still remaining due.

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I have heard learned counsel Smt.Vidya G. appearing for the petitioner; learned Government Pleader Smt.K.G.Sarojini

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W.P.(C)No.2349 of 2013

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appearing for the State and its officials; learned standing counsel Sri.Justine Jacob for the 5^th respondent Grama Panchayat and learned standing counsel Sri.N.Gopinathan Nair for the additional 6^th respondent - Khadi and Village Industries Board and perused the pleadings and documents on record.

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In my considered opinion, the attachment of salary is guided by section 60(i) of the Code of Civil Procedure. By virtue of the said provision, only a portion of the salary can be attached after making adjustments as is prescribed under the said provision. The said provision reads thus:

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“60. Property liable to attachment and sale in execution of decree.-(1) xxxxx xxxxx

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(i) salary to the extent of the first one thousand rupees and two-thirds of the remainder in execution of any decree other than a decree for maintenance:

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Provided that where any part of such portion of the salary as is liable to attachment has been under attachment, whether continuously or intermittently, for a total period of twenty-four months, such portion shall be exempt from attachment until the expiry of a further period of twelve months, and, where such attachment has been made in execution of one and the same decree, shall, after the attachment has continued for a total period of twenty-four months, be finally

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W.P.(C)No.2349 of 2013

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exempt from attachment in execution of that decree; (ia) one-third of the salary in execution of any decree for maintenance.”

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Exhibit P2 is only a notice issued by the Tahsildar to the Secretary of the Grama Panchayat. However, Exhibit P2(a) is a prohibitory order. On a reading of the same, it shows that the Tahsildar has restrained the Secretary of the Grama Panchayat from disbursing the salary and other allowances to the petitioner. In my considered opinion, going by section 60(i) of the Code of Civil Procedure, the action as directed in Exhibit P2(a) cannot be sustained under law. However, fact remains if there are dues to the Khadi and Village Industries Board from the charitable society and if the petitioner is a responsible person liable to discharge the arrears due against the loan availed from the Khadi and Village Industries Board, necessarily, action will have to be initiated in accordance with law for recovery of the amounts due.

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Taking into consideration the fact that Exhibit P2(a) order cannot be sustained under law, it is quashed. However I make it clear that this will not stand in the way of the Tahsildar

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W.P.(C)No.2349 of 2013

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(RR), Kottayam to proceed against the petitioner in accordance with law, for recovery of salary or to take any other proceedings as per the recovery certificate issued by the District Collector, Kottayam to recover the loan amount due to the additional 6^th respondent, if the loan amounts are even now remaining due.

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Writ petition is disposed of accordingly.

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Sd/-

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Shaji P.Chaly Judge

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vpv

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W.P.(C)No.2349 of 2013

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APPENDIX

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PETITIONER’S EXHIBITS

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EXT.P1: TRUE COPY OF THE RECOVERY PROCEEDINGS OF THE 3RD RESPONDENT DATED 10.07.2008.

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EXT.P2 & P2(A): TRUE COPY OF THE NOTICE AND PROHIBITORY ORDER ISSUED BY THE 4TH RESPONDENT DATED 04.12.2012.

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EXT.P3: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 24.12.2012.

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//TRUE COPY//

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P.A. TO JUDGE

Sreekala Kumari v. State of Kerala

Case brief

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Sreekala Kumari v. State of Kerala

Case brief

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