TAHSILDAR KOTTARAKARA Vs. N VISHWANATHAN

JUDGEMENT

(1.) This appeal has been filed by the State of Kerala jointly along with the Tehsildar Kottarakara against the decision of a learned single Judge of this Court allowing O. P. No. 2502 of 1976 filed by the 1st respondent herein and quashing the demand notice issued to the petitioner as per Ext. P1 under the provisions of the Revenue Recovery Act calling upon the petitioner to remit an amount of Rs. 17,816.92 being the arrears of abkari dues payable by him in respect of the period 1971-73.

(2.) The petitioner had stood surety for the 3rd respondent who was the successful bidder in respect of toddy shop No. 17 in Karunagapally range for the two years period from 1st April, 1971 to 31st March, 1973. The bid amount payable by the contractor for the said period was Rs. 90,500/-. The petitioner had executed a surety bond dated 23-4-1971 before the Assistant Excise Commissioner. Quilon undertaking to make good to the State Government the full amount payable by the bidder by way of kist, tree tax, interest etc., in respect of the aforesaid shop in the event of default being committed by the bidder in discharging such dues. The 3rd respondent defaulted payment of kist and kept it in arrears from June, 1971 onwards with the result that the shop was resold on 23-7-1971. At the resale the 4th respondent purchased the shop in reauction for a biennial rent of Rs. 68,000/- and the sale was confirmed in her name by the Board of Revenue on 24-8-1971. The 4th respondent remitted to the department a sum of Rs. 54,474/- being the proportionate amount payable in respect of the shop for the period from 25-8-1971 to 31-3-1973. The original bidder, namely, the 3rd respondent had remitted by way of kist only a sum of Rs. 18,324.33. Thus the total amount realised by the department by way of kist for the contract period from respondents Nos. 3 and 4 was Rs. 72,798.33/-. This fell short of the original bid amount of Rupees 90,500/- by Rs. 17,701.67/-. The said said sum together with interest thereon calculated up to 25-8-1971 amounting to Rupees 115/- was the subject matter of the demand issued against the petitioner by the Tahsildar, Kottarakara as per the impugned notice evidenced by Ext. P1.

(3.) On receipt of the aforesaid notice the petitioner submitted a representation before the State Government evidenced by Ext. P2 contending that since the 4th respondent had bid the shop for Rs. 68,000/- the loss suffered by the department on account of the balance kist realisable by the department on the basis of the original bid of the 3rd respondent was only Rs. 4,175.67/-. Expressing his readiness to remit the said sum of Rs. 4,175.67/- the petitioner requested the State Government to stay the revenue recovery proceedings and to allow him to discharge the liability of Rs. 4,175.67/- in fifteen equal instalments. In reply to the said representation the petitioner was informed by the Special Secretary to Government, Revenue Department as per the letter Ext. P3 dated 8-4-1978 that the District Collector Quilon had been given instructions to stay the revenue recovery proceedings taken against the petition provided the petitioner agreed to remit the entire arrears in fifteen monthly instalments commencing from 19th April, 1976. Thereupon the petitioner came up to this Court by filing the writ petition out of which this appeal has arisen seeking to quash Exts. P1 and P3.