DAT PETHE Vs. DISTRICT COLLECTOR ERNAKULAM
LAWS(KER)-1974-8-16
HIGH COURT OF KERALA
Decided on August 20,1974

DAT PETHE Appellant
VERSUS
DISTRICT COLLECTOR, ERNAKULAM Respondents

JUDGEMENT

K.Bhaskaran, J. - (1.) On inducement of incentive to industrial enterpreneurs, who were willing to start industries in the Corlim Industrial Estate established by the 4th respsondent, Industrial Development Corporation, Goa, (for short the Corporation), the 1st petitioner, an industrialist in Cochin, ventured to start an industrial unit by name 'Datta Metal Works' by taking five sheds belonging to the Corporation between 14-12-1968 and 5-2-1970; but had to close it down on 18-12-1970 having realised that it was impossible for him to continue it as an economically viable unit.
(2.) The facts leading to the filing of this writ petition can be summed up as follows:-- Having known that incentive was being offered by the Corporation to enter-preneurs for starting industrial units in the Corlim Industrial Estate, the 1st petitioner took on rent shed Nos. 16 and 19 on 14-12-1968. No. 17 ma 236- 1969, No. 23 on 18-9-1989 and No. 22 on 5-2-1970. While this eoncern belonging to the first petitioner was functioning there arose difficulties for the first petitioner in carrying on the working of the undertaking due to various difficulties primarily that of financial stringency and labour trouble. Matters moved to a crisis, and after giving due notice to the Corpora-boil, the first petitioner bad to close down the industry altogether and leave Goa, selling the machineries there itself. He had for the period of his occupation of the five sheds, paid a sum of Rs. 16,357,01 towards rent due. besides having made a deposit of Rupees 7000/-. His case is that at the time when he undertook to start the industry he was told by the Chief Executive Officer of the Corporation that a subsidy of rent to the tune of 50% would be given for the first five years. The rent calculated at the full rate would come to Rs. 39,250.01. After having adjusted the payments, the Corporation found that a sum of Rs. 16,952.17, inclusive of a sum of Rs. 396/- towards the repair charges of the office room in shed No. C-23, was due from the petitioners, and sought to recover the same by resorting to Revenue Recovery proceedings. The contention of the petitioners on the correctness of the amount claimed is that after crediting the amounts paid towards the rent and adjusting the amount in deposit, a sum of Rs. 3750/-would be due to the first petitioner from the Corporation on the basis that he was entitled to subsidy at the rate of 50% as promised at the time of the starting of the industry. Apart from challenging the correctness of this amount sought to be recovered, the petitioners have raised mainly three contentions: (1) the proceedings initiated for recovery of the amount has no legal basis inasmuch as neither Section 3 nor Section 5 of the Revenue Recovery Act, 1890, for short the Act, has application to the case; (2) the certificate not having been issued in the name of the defaulter, namely the first petitioner, the respondents cannot proceed against him for want of certificate; nor could the 2nd petitioner be proceeded against as he was not a defaulter, even assuming that the first petitioner was a defaulter; and (3) the first petitioner is entitled to raise the plea of equitable estoppel in view of the promise of subsidy to the extent of 50% of the rent for the first five years made by the Corporation at the time of his undertaking to Start the industry.
(3.) Section 3 of the Act reads as follows:-- "3 Recovery of public demands by enforcement of process in other districts than those in which they become payable.-- (1) Where an arrear of land-revenue, or a sum recoverable as an arrear of land- revenue is payable to a Collector by a defaulter being or having property in a district other than that in which the arrear accrued or the sum is payable, the Collector may send to the Collector of that other district a certificate in the form as nearly as may be of the Schedule, stating- (a) the name of the defaulter and such other particulars as may be necessary for his identification, and (b) the amount payable by him and the account on which it is due. (2) The certificate shall be signed by the Collector making it or by any officer to whom such Collector may, by order in writing, delegate this duty, and, save as otherwise provided by this Act, shall be conclusive proof of the matters therein stated. (3) The Collector of the other district shall, on receiving the certificate, proceed to recover the amount stated therein as if it were an arrear of land revenue which had accrued in his own district." We may also notice the definitions of "Collector" and "defaulter" given in Sub sections (2) and (3) of Section 2 of the Act. "(2) "Collector" means the chief officer in charge of the land-revenue administration of a district; and (3) "defaulter" means a person from whom an arrear of land-revenue, or a sum recoverable as an arrear of land-revenue, is due, and includes a person who is responsible as surety for the payment of any such arrear or sum." Sri V. Sivaraman Nair, the counsel for the petitioners, contends that the amount alleged to be due to the Coropration cannot be equated to an amount due either to the Collector of the District or to the Government, and in that view on the basis of the certificate alleged to have been issued by the 5th respondent (Collector of Goa), respondents 1 to 3 cannot legally proceed against the petitioners for collecting the amount by coercive methods under the provisions of the Act. Sri N. Dharmadan, the Government Pleader appearing for respondents 1 to 5, submits that the amount due to the Corporation virtually is due to the Government and in that way the Collector of Goa, on intimation from the Chief Executive Officer of the Corporation, is entitled to seek recovery through the machinery provided under the Act. It has to be noted in this context that the certificate issued by the Collector of Goa, the 3th respondent, is stated to be under Section 3 of the Act. In the counter-affidavit on behalf of respondents 4 and 5 it has been stated that the proceedings are initiated under Section 3 of the Act. The last sentence in paragraph 9 of the counter-affidavit reads as follows: "..... But the liability in this case is a statutory liability covering within the purview of Section 38 of the Act referred to above and this respondent can make the use of Section 3 of the Indian Revenue Recovery Act 1890 for recovering the amount as arrears of land revenue". Counsel for the respondents has also no case that the matter would fail within Section 5 of the Act. His argument is confined to the application of Section 3 of the Act, though at certain stages he has also attempted to submit that on information having been received from the Corporation, the 5th respondent Collector was competent to issue the certificate against the defaulter tinder Section 5 also. The decision in this writ petition depends on the decision of the question whether the amount could be considered to be one due to the Government, as evidently it is not shown to he due to the Collector. This naturally involves a consideration of the question whether what is due to the Corporation is equal to what is due to the Government. Sri Dharmadan has drawn my attention to the Constitution of the Corporation, and the various provisions governing its working, and in particular to Section 38 of the Goa, Daman and Diu Industrial Development Act, 1965, which reads as follows:-- "38. Recovery of sums due to the Corporation as arrears of land revenue.-- AH sums payable by any persop to the Corporation or recoverable by it by or under this Act and all charges or expenses incurred in connection therewith shall, without prejudice to any other mode of recovery, be recoverable as arrears of land revenue on the application of the Corporation." The other provisions in the Act to which my attention was drawn by the Government Pleader during the course of his argument, are Sections 3, 12, 16, 24 (4), 25 (4), 36. 44 and 45. Section 3 of the above Act lays down- "3. Establishment and incorporation.--(1) For the purposes of securing and assisting in the rapid and orderly establishment and organisation of industries in industrial areas and industrial estates in the Goa, Daman and Din. there shall be established by the State Government by noti-fication in the official Gazette a Corporation by the name of the Goa, Daman and Diu Industrial Development Corporation. (2) The said Corporation shall be a body corporate with perpetual succession and a common seal, and may sue and be sued in its corporate name, and shall be competent to acquire, hold and dispose of property both movable and immovable, and to contract, and do all things necessary for the purposes of this Act" Section 12, inter alia, provides that the State Government shall appoint a Chief Executive Officer, and a Chief Accounts Officer of the Corporation, Section 16 is to the effect that the State Government may issue to the Corporation such general or special directions at to policy as it may think necessary or expedient for the purpose of carrying out the purposes of the said Act, and the Corporation shall be bound to follow and act upon such directions. Sub-section (4) of Section 24 and Sub-section (4) of Section 25 read as follows:-- Section 24 (4): "A copy each of the annual financial statement and the programme of work and the supplementary financial statement, if any, shall be placed before the Legislative Assembly as soon as may be after their receipt by the State Government". Section 25 (4): "The State Government shall cause the accounts of the Corporation together with the audit report thereon forwarded to it under Subsection (3) to be laid annually before the Legislative Assembly." Section 36 vests in the State Government the authority to nominate any officer of the Corporation to be a controller or licensing authority under any law for the time being in force relating to the procurement or distribution of any commodity in respect of the industrial undertakings established or to be established in the industrial estates or industrial areas entrusted to or developed by the Corporation and no such nomination shall be called into question merely on the ground that such officer is not an officer of the State Government. Section 44 reads as fallows:-- "44. Default in performance of duty.--(1) If the State Government is satisfied that the Corporation has made a default in performing of any duty or obligation imposed or cast on it by or under this Act, the State Government may fix a period for the performance of that duty or obligation and give notice to the Corporation, accordingly. (2) If in the opinion of the State Government, the Corporation fails or neglects to perform such duty or obligation within the period so fixed for its performance, it shall be lawful for the State Government to supersede and reconstitute the Corporation, as ft deems fit. (3) After the supersession of the Corporation and until it is reconstituted in the manner laid down in chapter II, the powers, duties and functions of the Corporation under this Act shall be carried on by the State Government or by such officer or officers or body of officers as the State Government may appoint for this propose from time-to time. (4) AD property vested in the Corpora-tion shall, during the period of supersession, vest in the Slate Government". Sub-section (2) of Section 45 is to the following effect: "(2) From the said date-- (from the date of dissolution) (a) all properties, funds and dues which are vested in, or realisable by the Corporation shall vert in, or be realisable by, the State Government; (b) all liabilities which are enforceable against the Corporation shall bo enforceable against the Government". Along with the above provisions counsel for the respondents has also brought to my notice the following condition incorporated in the lease deed executed by the first petitioner while taking the sheds: "Any dues of the Lessor in respect of the shed shall without prejudice to any ether rights, remedies of the Lessors be recoverable from the Lessee as arrears of land revenue". The contention of the counsel for the respondents is that in view of the above provisions which clothe the Corporation practically with all the powers of a Government the amount due to the 4th respondent should be deemed to be amount due to the Government In support of his argument he relies on the decision of the Supreme Court in Electricity Board, Rajasthan v. Mohan Lal (AIR 1967 SC 1857) wherein in paragraph 6 it has been held that the Electricity Board would fall within "other authorities" in Article 12 of the Constitution, The decisions in Bulu Rani v. Member, Board of -Revenue (AIR 1962 Cal 499) and Manohar Lal v. State (AIR 1956 Pepsu 14) are also relied on by the counsel for the respondents in this behalf. The other decisions cited are K. L. Mathew v. Union of India (AIR 1974 Ker 4) and George v. Coffee Board 0972 Ker LT 367) = (1972 Lab IC 921). The above decisions are relied on for the proposition that because the establishments or organisations considered in those cases were found to have public functions, as enjoined by the statute, to be discharged, they fall within the ambit of Article 12 of the Constitution, the 4th respondent having almost identical characteristics should be deemed to have the status of Government for the purpose of the application of the provisions of the Act. Besides the above decisions, one other decision strongly relied upon on behalf of the respondents is the one reported in K.N. Gupta v. Collector of Dehradun (1959 All LJ 789) pointing out that that case has dealt with a question of revenue recovery under Section 3 of the Central Act 1890 and that that has direct bearing to the question involved in this case.;


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