High Court of KeralaSingle Judge2021-11-03Writ petition disposed of in part; allowed inst...

Ashique Ali v. State of Kerala & Others

Case / Petition Number:WP(C) No. 23157 of 2021

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anu Sivaraman
Judgment Date: 2021-11-03
Court Decision / Holding: Writ petition disposed in part. The reduction effected by Exhibit P4 is held to be prospective, not retrospective. The petitioner is not entitled to retrospective relief. However, due to ambiguity about the date of application of Exhibit P4, the government is directed to allow the petitioner to pay the arrears in 12 equal monthly instalments, commencing 01.12.2021, with no coercive action if payments are timely made; default may invite coercive steps in accordance with law.
Final Disposition: Writ petition disposed of in part; allowed instalment payment plan and rejected retrospective relief; no coercive action if instalments paid on time.

Parties to the Case

Appellants / Petitioners

Ashique Ali

Respondents

State of Kerala represented by Secretary, Revenue Department, Secretariat, Thiruvananthapuram, PIN-695001
The Tahsildar, Aluva Taluk, Mini Civil Station, Aluva, Ernakulam District, PIN-683101
District Geologist, Ernakulam District, Civil Station, Kakkanad, PIN-682030

Legal Representation & Advocates

Counsels for Petitioners

• M. A. Abdul Hakhim
• Joseph George

Counsels for Respondents

• HanilKumar M. H - Special Government Pleader

Case Synopsis & Summary

This writ petition challenges the fixation of seigniorage on granite building stones under the Kerala Land Conservancy Act, 1957. The petitioner, Ashique Ali, a granite quarry operator, challenges Exhibit P3 (02.02.2015) which fixed the seigniorage at Rs 200 per metric ton and Exhibit P4 (18.02.2016) which substituted the rate at Rs 50. The petitioner contends that the substitution by Exhibit P4 should have retrospective effect from the date of Exhibit P3, and therefore no additional amount could be collected for the intervening period. Exhibits P5 (21.06.2021) and P6 (10.12.2019) are invoked to argue that retroactive relief should follow and that the government acted unlawfully by imposing collections at the higher rate. Counsel for the government submits that Exhibit P3 raised the rate to Rs 200, and that the later reduction was a concessional, prospective measure, clearly stating there was no intention of retrospective operation. The court agrees that the reduction was prospective and not retroactive, and therefore rejects the petitioner's plea for retrospective relief. However, given the petitioner’s longstanding compliance and the confusion over the date of application of Exhibit P4, the court orders instalment payment of the arrears in 12 equal monthly instalments beginning 01 December 2021, with no coercive action if timely paid. If instalments are defaulted, further action is allowed. The learned judge also cites a Division Bench decision in a related matter (The Commercial Tax Officer v. S. Najeem) as persuasive, but treats it as guidance rather than binding. The petition is disposed accordingly.

Provisions of Law Cited

Kerala Land Conservancy Act, 1957

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Exhibit P3 raised the seigniorage to Rs 200 per metric ton in 2015, and Exhibit P4 reduced it to Rs 50 in 2016. He argues that the reduction should operate retrospectively from the date of Exhibit P3 and that Exhibits P5 and P6 should not defeat relief. He relies on a Division Bench decision in The Commercial Tax Officer v. S. Najeem to support retrospective relief. The petitioner seeks writs to set aside Exhibits P5 and P6 and requests time to pay the arrears.

Contentions of Respondents

The Government Pleader submits that Exhibit P3 fixed the rate at Rs 200 and that the reduction to Rs 50 via Exhibit P4 was a prospective concession with no intention of retroactive operation. It is argued that Exhibits P5 and P6 are legal and clarify the position; the petitioner is liable to pay the enhanced rate for the period between P3 and P4.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
The Commercial Tax Officer, Anchal, Kollam District & Others v. S. Najeem, Thiruvananthapuram & Another	2018 (4) KHC 666	Mentioned Only	Cited by the petitioner as persuasive authority; the present judgment does not adopt or distinguish its reasoning beyond noting the related precedent.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 3[RD] DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943** ## **WP(C) NO. 23157 OF 2021** ## **PETITIONER:** ASHIQUE ALI AGED 36 YEARS S/O.A.A.ALI, ANDETH HOUSE, MEKKALADY, KALADY. BY ADVS. M.A.ABDUL HAKHIM JOSEPH GEORGE ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001. 2 THE TAHSILDAR, ALUVA TALUK, MINI CIVIL STATION, ALUVA, ERNAKULAM DISTRICT, PIN-683101. 3 DISTRICT GEOLOGIST ERNAKULAM DISTRICT, CIVIL STATION, KAKKANAD, PIN-682030. HANILKUMAR.M.H-SPECIAL GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.23157 OF 2021 2 ## **JUDGMENT** ## **Dated this the 3[rd] day of November 2021** This Writ Petition is filed seeking the following reliefs. _(a)Declare that Ext.P4 substituting the rate of 'Rs.200/-' per Metric Ton for Granite Building Stone in Ext.P3 with 'Rs.50/-' per Metric Ton for Granite Building stone shall have retrospective operation with effect from the date of Ext.P3 dated 02.02.2015,_ _(b)Issue a writ of certiorari such other writ order or direction setting aside Ext.P5 order issued by the 2[nd] respondent,_ _(c)Issue a writ of certiorari, such other writ, order or direction setting aside Ext.P6 order issued by the 1[st] respondent to the extent to which it authorizes collection of Seniorage @ Rs.200/- per Metric Ton for Granite Building Stone._ 2. Heard the learned counsel for the petitioner and the learned Government Pleader appearing for the respondents. 3. It is submitted by the learned counsel for the petitioner that the petitioner had been conducting a Granite Building Stone Quarry and Stoner Crusher Unit. WP(C).No.23157 OF 2021 3 It is submitted that, by Exhibit P3 notification dated 02.02.2015, the seigniorage of granite building stones under the Kerala Land Conservancy Act, 1957 had been revised from Rs.2.50/- per Metric Ton to Rs.200/- per Metric Ton. The quarry owners and affected parties had submitted representations before the Government and by Exhibit P4 Notification dated 18.02.2016, the rate of seigniorage was substituted as Rs.50/- instead of Rs.200/-. 4. The learned counsel for the petitioner submits that since Exhibit P4 effects a substitution, the said substitution should have effect from the date of Exhibit P3 order itself and therefore, no additional amount is liable to be collected as seigniorage from the petitioner. Exhibits P5 and P6 orders which state that no remission is liable to be granted with regard to the seigniorage between the dates of Exhibits P3 and P4 are therefore, under challenge. Learned counsel for the petitioner WP(C).No.23157 OF 2021 4 also relies on the decision of the Division Bench of this Court in **The Commercial Tax Officer, Anchal, Kollam District & Others v. S. Najeem, Thiruvananthapuram & Another** [ **2018 (4) KHC 666].** 4. The learned Government Pleader, on instructions, submits that the decision in Exhibit P3 was specifically to raise the seigniorage to Rs.200/-. When representations were submitted with regard to the rate of seigniorage, a decision had been taken, as a concessional measure, to reduce the rate to Rs.50/-. It is stated that Exhibit P4 would make it amply clear that the said reduction of the rate was specifically prospective in operation and that there was absolutely no intention to confer any retrospective operation to Exhibit P4 order, which reduces the seigniorage. It is submitted that thereafter also, representations had been received from affected parties and those representations had been specifically considered by the WP(C).No.23157 OF 2021 5 Government and it had been clarified that there was no intention for any retrospective operation to the reduction of the seigniorage by Exhibit P4. It is submitted that in the above circumstances, Exhibits P5 and P6, which considers the issue, are perfectly legal and valid and that the petitioner is liable to pay the enhanced rate of seigniorage from the date of Exhibit P3 to the date of Exhibit P4. 5. Having considered the contentions advanced and in view of the fact that the Government has specifically clarified that the reduction of the rate by Exhibit P4 was prospective in operation, I am of the opinion that the contention of the petitioner that the reduction has to be given retrospective effect from the date of Exhibit P3 cannot be accepted. The learned counsel for the petitioner therefore, submits that the petitioner may be granted time to pay off the additional seigniorage in accordance with Exhibits P5 and P6 WP(C).No.23157 OF 2021 6 orders. In the above facts and circumstances of the case, there will be a direction to the respondents to grant time to the petitioner to pay off the amounts due in instalments. In view of the fact that it is not disputed that the petitioner has been paying the seigniorage due from him promptly, and it is only because of the confusion with regard to the date on which Exhibit P4 is to be applied, that the amounts remain unpaid, there will be a direction to the respondents to permit the petitioner to pay off the amounts in 12 equal monthly instalments. The first of such instalment shall be due on 01.12.2021 and the remaining instalments shall be due on the corresponding dates of the subsequent months. In case the petitioner makes the payment without default, no coercive proceedings shall be initiated against the petitioner. However, it is made clear that in case the WP(C).No.23157 OF 2021 7 instalments, as directed herein are not paid by the petitioner, further coercive steps can be taken in accordance with law. This writ petition is ordered accordingly. **Sd/ANU SIVARAMAN JUDGE** SSK/3/11 WP(C).No.23157 OF 2021 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** A PHOTOSTAT COPY OF THE NO OBJECTION Exhibit P1 CERTIFICATE DATED 12.01.2011 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. A PHOTOSTAT COPY OF THE NOTIFICATION DATED Exhibit P2 30.08.1977 ISSUED BY THE 1ST RESPONDENT. A PHOTOSTAT COPY OF THE NOTIFICATION DATED Exhibit P3 02.02.2015 ISSUED BY THE 1ST RESPONDENT. A PHOTOSTAT COPY OF THE NOTIFICATION DATED Exhibit P4 18.02.2016 ISSUED BY THE 1ST RESPONDENT. A PHOTOSTAT COPY OF THE ORDER DATED 21.06.2021 Exhibit P5 ISSUED BY THE 2ND RESPONDENT. A PHOTOSTAT COPY OF GOVERNMENT ORDER NO. Exhibit P6 (P)3691/2019 DATED 10.12.2019 ISSUED BY THE 1ST RESPONDENT. ## **RESPONDENTS' EXHIBITS: NIL** **SSK //TRUE COPY// PA TO JUDGE**