The Trivandrum Permanent Fund Ltd. Vs. State of Travancore-cochIn and ors. - Court Judgment

M.S. Menon, J.

1. The Government of Travancore-Cochin adjusted a sum of Rs. 10,037 from the amount payable by them to their contractor, the Organic Fertilisers and Chemicals, Cochin, under Exhibit A, an agreement with the said firm for the supply of bone-meal, towards the sales tax due to the State from that firm. That the adjustment has been completed is clear from the letter of the Comptroller to the Director of Agriculture, No. D.A. 15/6/5/56-57/131 dated the 6th July, 1956.

I am to inform you that the amount of Rs. 10,037 due to Messrs. Organic Fertilisers and Chemicals, Mattancherry, has been adjusted towards arrears of sales tax in the accounts of this office for 3/56 final.

2. The petitioner has no doubt sufficient interest to question the adjustment. This is clear from Exhibit B, an agreement between the firm and the petitioner dated the 8th September, 1955, and Exhibit C, the power-of-attorney dated the 10th September, 1955, which were forwarded to the Government along with the covering letter, Exhibit D, dated the 13th September, 1955. Exhibit D reads as follows :

Sub : Bone-meal supply to Government-2000 tons under tender -Account Messrs. Organic Fertilisers and Chemicals, Mattancherry.

I beg to enclose herewith a power-of-attorney and a copy of the agreement executed by the above firm in this bank's favour in consideration for our financing them for their contract for supply of bone-meal to Government. I request your honour be pleased to acknowledge receipt of the documents and arrange to pay our bank the proceeds of the party's bills on the department that may be submitted through us from time to time.

The entire quantity of bone-meal imported for supply to Government is being paid for and taken delivery of by the bank and the same is released to the contractor on trust for supply to the various Government Depots. As such the bank's charge over the goods supplied to Government from time to time may kindly be noted and payments on the contractor's bills may be ordered in favour of this bank for credit of the contractor's account with us.

Thanking you, Sir, and requesting the favour of an acknowledgement.

The acknowledgement is Exhibit E dated 28th September, 1955 :

I write to acknowledge receipt of the power-of-attorney and the copy of the agreement forwarded along with your letter No. 4712 dated I3th September, 1955.

3. Paragraph 4 (ii), (iii) and (iv) of Exhibit B indicates the procedure followed in supplying the bone-meal to the State :

(ii) The 'borrowers' hereby authorise 'the bank' to take delivery of the goods on the basis of the documents of title endorsed in 'the bank's' favour and store the said goods under their lock and key in a godown to be arranged by the 'borrowers' at their expense. The 'borrowers' hereby agree to pay to the 'bank' all expenses and incidental charges for the transport of the goods from warehouse to warehouse.

(iii) Whenever a request is made by the 'borrowers' to the 'bank' for releasing the goods for the purpose of sending them to the various Government Depots in Travancore-Cochin State, it is hereby agreed that on obtaining a 'trust receipt' from the 'borrowers' the 'bank' should release the goods in trust to the 'borrowers' who will surrender the goods to the Government at the Government Depots.

(iv) The 'borrowers' hereby agree that after the receipt and supply of every lot of one hundred tons or above of the bone-meal from the possession of the 'bank', bills will be drawn by the 'borrowers' for the price of the said one hundred tons or more as mentioned in their agreement with the Government of Travancore-Cochin and the 'borrowers' further agree that they will get those bills certified by the officers in charge of the said Government Depots and that the said bills will be receipted and endorsed for payment in favour of the 'bank.' The 'bank' agrees to discount bills of the 'borrowers' and the head office of the bank will present the bills for collection and receive the proceeds for credit of the 'borrowers'' dues from time to time.

4. From the fact that the petitioner has sufficient interest to file this petition, however, it does not follow that the petitioner is entitled to any relief as prayed therein. The maximum that can be said is that the Government have violated an undertaking implied in their acknowledgement of Exhibits B and C when they adjusted a portion of the amount due under Exhibit A to the contractor towards the sales tax due from the contractor to the State and paid the balance alone to the petitioner. This is certainly a matter which should be agitated by an ordinary suit and not in proceedings like this under Article 226 of the Constitution. Learned counsel for the petitioner tried to get over the difficulty by saying that the effecting of an adjustment like the one made by the State is not within the power of the Government under the Travancore-Cochin General Sales Tax Act, 1125, or under the general law. According to him the Government should follow one or other of three courses :

(1) Recovery as an arrear of land revenue under the Travancore-Cochin Revenue Recovery Act, 1951, as provided by Section 13 of the Travancore-Cochin General Sales Tax Act, 1125;

(2) Recovery under Section 19 of the Travancore-Cochin General Sales Tax Act, 1125, by proceedings before a Magistrate of the First Class; or

(3) Recovery by a regular suit.

I see no reason to confine the courses open to the State to the three mentioned above and thus deny the State the ordinary right of adjustment available to its citizens under similar circumstances.

5. An attempt was made to give different legal personalities to the Agricultural Department from which the amount was due and the Sales Tax Department to which the tax was payable. Such an attempt must naturally fail as the various Departments of the Government have no legal personality apart from that of the Government itself.

6. In the light of what is stated above the petition has to be dismissed and is hereby dismissed with costs. Advocate's fee Rs.