KARTHIAYANI SREEMATHI Vs. DT COLLECTOR

JUDGEMENT

(1.) THESE O. Ps. were referred to a Division Bench by our learned brother Chandrasekara Menon, J. , in an elaborated order of reference running nearly to ten typed pages, as the learned Judge felt that the questions raised are not only of interest in an academic sense but also of great importance. The question itself as stated shortly by the learned Judge is whether the legal representatives of the deceased employer would fall within the definition of the term "employer" in Section 2 (c) of the Kerala Toddy Workers Welfare Fund Act and of the term "defaulter" in Section 2 (e) of the Kerala Revenue Recovery Act, 1968, read with Section 68 of the said Act. We shall notice the facts first in O. P. No. 4816 of 1976 in which the main arguments were advanced. Counsel in the other writ petition practically associated himself with the said arguments. O. P. No. 4816 of 1976

(2.) THE four writ petitioners are the daughters of one Krishnan Padmanabhan, an abkari contractor who died on 11. 11. 1972. Besides the petitioners, the deceased had a son Sridharan and another daughter Karthiyayani Ratnamma. The deceased had bid toddy shops No. 13 (sic)Adoor and T. S. No. 14 in Thuvayur and T. S. No. 15 in Ezhamkulum in Kunnathur range, T. S. No. 8 in Chittoor in Karunagappally range, and T. S. No. 8 in Pulamon in Kottarakara range. He was conducting these shops till his death, and thereafter the business is being continued by his only son Sridharan. The petitioners alleged that they had nothing to do with the business. By document No. 863/1972 of the Chavara Sub Registrar's Office dated 19. 3. 1972, Krishnan Padmanabhan and the members of his family partitioned the properties. On the date of his death, an extent of 1 acre 71 cents of land stood in the name of the deceased Padmanabhan. Out of this, 35 cents are stated to have been acquired for the National High Way as evidenced by Ext. P1 notice. In a partition suit O. S. No. 60 of 1974. Sub Court Quilon, the estate of the deceased was directed to be partitioned by a preliminary decree dated 30. 9. 1975. Final decree is awaited. Meanwhile the Welfare Fund Inspector, Quilon initiated proceedings for determination of the amount payable under Section. 8 of the Kerala Toddy Workers Welfare Fund Act, 1969 for the shops bid by deceased Padmanabhan for the period during which the deceased was conducting the shops. The legal heirs of the deceased were summoned to appear. The petitioners appeared and contested their liability. But the Inspector determined the amount of contribution and the balance amount due for each of the shops and passed Exts. P2 to P6 assessment orders making the heirs jointly and severally liable. These were on dates ranging between 10. 11. 1975 and 17. 3. 1976. In pursuance of these orders revenue recovery proceedings by attachment of movables were initiated for the recovery of the amount assessed. Apprehending further action the petitioners filed a writ petition attacking the revenue recovery proceedings as without jurisdiction and prayed for a writ of prohibition forbidding respondents from taking any steps under the Toddy Workers Welfare Fund Act and the Kerala Revenue Recovery Act to collect the contribution to the welfare fund from the petitioners for the toddy shops conducted by the deceased Padmanabhan; and for certiorari to quash Exts. P2 to P6 orders. A detailed counter-affidavit has been filed by the District Collector, Quilon and the 1st respondent. Paragraph 2 of the counter-affidavit has stated in a tabular form the various amounts which were advised for recovery against the deceased Padmanabhan for arrears of abkari revenue, The amount includes arrears towards the toddy workers welfare fund. The total amount advised for recovery was Rs. 80,077. 30. Out of this an amount of Rs. 59,643. 84 was collected, The counter-affidavits states that for realisation of the arrears demand notices were issued to the defaulter on 18. 7. 1969, 26. 7. 1969, 25. 7. 1970, 28. 7. 1970, 11. 11. 1971, 8. 12. 1971, 28. 12. 1971 and 24. 12. 1971, to recover items shown in the tabular statement. Notice under Sections 34 and 36 of the Kerala Revenue Recovery Act are also stated to have been served on the late Sri Padmanabhan on 22. 7. 1969 and 24. 9. 1969. Notice of attachment under Section 36 was published in the Gazette dated 16. 9. 1969. After all these formalities, 5 acres and 55. 855 cents of land of the defaulter in Karunagappally Taluk were attached under the Revenue Recovery Act, 1968. In addition, 95 cents of land in Sy. Nos. 610/7, 610/8 and 610/178 in Adoor Village, were also attached for the realisation of arrears. Notice under Section 34 of the Revenue Recovery Act was served on the legal heirs of the defaulter and they remitted Rs. 2,000 towards the arrears due; but did not pay up the balance. One of them filed O. P. 485 of 1976 to quash the Revenue Recovery Proceedings. In paragraph 3 of the counter-affidavit, it is stated that the Welfare Fund Inspector took action to realise the amounts under Section 9 of the Act and the certificates were issued by the Collector on the basis of the requisition from the Welfare Fund Inspector. The counter-affidavit has stated that the partition referred to by the petitioners was effected after the demand notice under Sections 34 and 36 of the Revenue Recovery Act. (The implication probably is that the same would not bind the Government under Section 44 of the Act ). The rest of the averments in the counter-affidavit will be referred to, if necessary, at the appropriate stage.

(3.) THE contentions urged by the counsel for the petitioners are that the legal representatives of the deceased Krishnan Padmanabhan would not satisfy the definition of "employer" under Section 2 (c) of the Toddy Workers Welfare Fund Act, 1969, and the amount due from the deceased Padmanabhan cannot be recovered from the legal representatives; nor would the legal representatives fall within the term "defaulter" as defined in Section 2 (e) of the Revenue Recovery Act, and for that reason again, the recovery proceedings taken against them should fail. It was also contended that the properties conveyed to the petitioners under the partition of 19. 3. 1972 cannot be proceeded against for arrears due from Krishnan Padmanabhan.