THASILDAR ALWAYE Vs. P V ANTONY

JUDGEMENT

(1.) THIS is an appeal by respondents 1 and 2 in O. P. 312 of 1972, the Tahsildar; Alwaye and the Village Officer, Kaladi from the judgment in the original petition issuing a writ of mandamus restraining the appellants from taking proceedings under the Revenue Recovery Act, 1890 (hereinafter called the Central Act) or the Kerala Revenue Recovery Act (for short the Local Act) against the respondent herein the petitioner in the O. P. The respondent approached the court on the allegation that he had come to know through the Taluk Officer, Alwaye that the Tax Recovery Officer at Pollach had communicated to the District Collector of Coimbatore about certain alleged dues from him by way of sales tax to the State of Tamil Nadu and had requested in that communication that the Collector at Coimbatore may be pleas d to authorise the Collector, Ernakulam, within whose jurisdiction admittedly the respondent resides, to realise the alleged sales tax dues. On the Collector, Ernakulam being so required by the Collector, Coimbatore to recover the amounts, he instructed the first appellant, the Tahsildar alwaye, to recover the amounts and a notice it is said was attempted to be served through the second appellant, the village officer by the first appellant. On the basis that under the Central Act the Collector had 10 authority to delegate his powers unlike in the Local Act which contains a special provision for delegation in S. 73, it was urged, on the assumption that this was a case in which the District Collector, Ernakulam, had delegated his powers to the first appellant, that the steps attempted by the first appellant are without the authority of law. The learned judge accepted this contention and further scrutinising a communication said to have been addressed by the district Collector to the first appellant also held that that latter cannot be construed as a delegation for the purpose of S. 78 of the Local Act. It was therefore held that the respondents, appellants have no authority to take steps against the respondent herein for the recovery of the tax and the writ of mandamus was therefore issued.

(2.) BEFORE we proceed to deal with the questions arising in this appeal it is necessary to clarify that the Tahsildar the first appellant can take steps if at all only in his capacity as Collector by virtue of the provision in S. 2 (c) of the Kerala Revenue Recovery Act, 1968 under which he was appointed by the Government to exercise the powers and perform the functions of a Collector under the Local Act. No question of delegation can arise in the matter of the functioning of the 1st appellant. The learned advocate General who appeared for the appellants made available to us the delegation under S. 73. Under that delegation with reference to the power to issue notice under S. 7 of the Local Act, it is the Deputy Tahsildar and not the tahsildar to whom the power has been delegated.

(3.) WE may say before concluding this aspect of the matter that apart from the provision in S. 3 (2) of the Central Act there are other provisions in the Central Act which are at variance with those in the Local act. S. 4 of the Central Act for instance gives the remedy to a person against whom a notice had been issued to pay the amount under protest and then file a suit for repayment of the amount or any part thereof. The Local Act gives a right to a suit only to a limited extent. WE think that when the amounts are to be recovered pursuant to a certificate under S. 3 (1) the provisions under S. 4 of the Central Act would apply because the section pertains to a substantial right Similarly the provision in the Local Act to object to the certificate will not apply in the case of realisation of amounts pursuant to a certificate under S. 3 (1 ). The Central Act makes provision under S. 6 of the above Act for the issue of proclamation prohibiting the transfer of any private alienation of the property or of any interest of the defaulter therein, whether by sale, gift, mortgage or otherwise, made after the issue of the proclamation and before the withdrawal thereof, and has further provided that such transfers shall be void under the Central Act. There provisions alone will apply when pursuant to a certificate under S. 3 (1) of the Central Act dues are sought to be realised. WE have referred to these provisions to point out that there may be substantive rights under the Central Act which will prevail notwithstanding the application of the auxiliary machinery in the Local Act. In such cases the person proceeded against would be entitled to contend that his substantive right under the Central Act cannot be abrogated by the application of the "local Act. But by the force of S. 3 (3) of the Central Act all the auxiliary machinery under the Local Act would be applicable. The procedure under the Local Act, that a District Collector' may use an appointee under S. 2 (c) of the Local Act (also a District Collector under the Local Act) for the purpose of collection is only a machinery provision.