K. Karunakaran and P. Ambika Devi v. The Assistant Excise Commissioner Kollam, The Excise Commissioner, State of Kerala represented by its Secretary to Government (Taxes) Department, The Mayyanad Regional Service Co-Operative Bank Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 14TH DAY OF JUNE 2017/24TH JYAISHTA, 1939** ## **WP(C).No. 3414 of 2016 (B) ---------------------------** - **PETITIONER(S): -------------** **1. K.KARUNAKARAN** **KOZHITHODATHU VEEDU, PANTHRANDUMURI TAGAR, THATTAMALA P.O., KOLLAM - 20.** **2. P.AMBIKA DEVI, W/O.K.KARUNAKARAN, KOZHITHODATHU VEEDU,** **PANTHRANDUMURI NAGAR, THATTAMALA P.O., KOLLAM - 20.** ## **BY ADV. SRI.S.MUHAMMED HANEEFF** **RESPONDENT(S):** - **--------------** **1. THE ASSISTANT EXCISE COMMISSIONER KOLLAM - 691 001.** **2. THE EXCISE COMMISSIONER, THIRUVANANTHAPURAM - 695 001.** **3. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO THE GOVERNMENT (TAXES)(A)** **DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **4. THE MAYYANAD REGIONAL SERVICE CO-OPERATIVE BANK LTD.NO.94, REPRESENTED BY ITS SECRETARY, MAYYANAD, KOLLAM - 691 524.** **R4 BY ADVS. SRI.P.MARTIN JOSE** **SRI.P.PRIJITH SRI.A.JANI(KOLLAM) R3 BY ADV. SENIOR GOVERNMENT PLEADER SRI. SANTHOSH PETER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 3414 of 2016 (B)** **---------------------------** ## **APPENDIX =========** **PETITIONER(S)' EXHIBITS** **----------------------EXT.P1: A TRUE COPY OF THE ORDER NO.04-2898/99 OF THE 1ST RESPONDENT.** **EXT.P2: A TRUE COPY OF THE RECEIPT DT.21.11.2008 ISSUED BY THE 1ST RESPONDENT.** - **EXT.P2(A): A TRUE COPY OF THE RECEIPT DT.22-11-2008 ISSUED BY THE 1ST RESPONDENT.** - **EXT.P2(B): A TRUE COPY OF THE RECEIPT DT.20-11-2008 ISSUED BY THE 1ST RESPONDENT.** - **EXT.P3: A TRUE COPY OF THE JUDGMENT DT.18-02-2015 IN W.P.(C) NO.10987/2014 OF THIS HON'BLE COURT.** - **EXT.P4: A TRUE COPY OF THE G.O.(RT) NO.824/2015/TAX DEPT. DT.06-11-2015 ISSUED BY THE 3RD RESPONDENT.** - **EXT.P5: A TRUE COPY OF THE JUDGMENT DT.21.03.2012 IN WP(C) NO.27400/2009 OF THIS HON'BLE COURT.** - **EXT.P6: A TRUE COPY OF THE PETITION FILED BY THE 4TH RESPONDENT BEFORE THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, KOLLAM DT.13-06-2015.** - **EXT.P7: A TRUE COPY OF THE DEMAND NOTICE IN THE EXECUTING PROCEEDINGS DT.08.01.2016 ISSUED BY SALE OFFICER ALONG WITH ITS ENGLISH TRANSLATION.** **RESPONDENT(S)' EXHIBITS: NIL** **-----------------------** **//TRUE COPY//** **P.A. TO JUDGE** ## **DST** ## **DEVAN RAMACHANDRAN,J.** **= = = = = = = = = = = = = = = = =** **W.P.(C) No. 3414 of 2016** **- - - - - - -- - - - - - - - - - - - - -** Dated this the 14[th] day of June, 2017 ## **J U D G M E N T** The petitioners along with their son one Sri. K.K. Binu and a certain Sri. Omanakuttan are stated to be the licensee of an FL-1 licensed shop in the Chathannur Range under the provisions of the Kerala Abkari Act, 1077. The petitioners assert that the shop was auctioned in their favour for an annual rent of `61,61,611/- and that they have deposited an amount of `18,48,483/- towards security deposit as early as in the year 1999. 2. They say that even though they began the business after executing the agreement, they were not able to pay an instalment of _kist,_ which was an amount of `6,71,614/-, within the time granted to them. This led to the adjustment of the _kist_ amount from the amounts deposited by them as _**W.P.(C) No. 3414 of 2016**_ ## **-: 2 :-** security and the Authorities thereafter directed the petitioners to replenish this amount that was adjusted from the security deposit. The petitioners allege that when they were unable to do so, Ext.P1 order was issued forfeiting the entire security deposit remitted by them and cancelling the licence. The petitioners challenged Ext.P1 before this Court which led to Ext.P3 judgment which was dismissed and proceedings were initiated against them under the provisions of the Kerala Abkari Shops (Disposal in Auction) Rules, 1974 ( _hereinafter referred to as 'the Rules')_ . 3. The petitioners subsequently applied for compounding of the offence under the Rules in terms of a Government Order, namely G.O.(MS) No.108/08/TD dated 26.05.2008 and according to them, they were allowed to compound the offence on payment of `19,75,028/-. ## _**W.P.(C) No. 3414 of 2016**_ ## **-: 3 :-** 4. Once the offence was thus compounded, the petitioners again applied to the authorities for refund of the security deposit on the ground that the amounts remitted by them under the Amnesty Scheme would be sufficient to cover the entire liability fastened against them. When this representation was not considered, the petitioners moved this Court again, which culminated in Ext.P3 judgment under which the 3[rd] respondent therein, who is also the 3[rd] respondent herein, was directed to consider the representation of the petitioners, shown as Ext.P6 therein, within a period of two weeks. 5. The competent respondents appear who have considered the representation in terms of the directions contained in Ext.P3 judgment and have issued Ext.P4, declining the request of the petitioners to refund of the security deposit. The ## _**W.P.(C) No. 3414 of 2016**_ ## **-: 4 :-** petitioners have challenged Ext.P4 in this writ petition on various grounds. 6. I have heard Sri. S. Muhammed Haneef, the learned counsel for the petitioners, and the learned Senior Government Pleader appearing for the respondents. 7. The petitioners concede that they were in default of the _kist_ amount. They admit that proceedings against them, initiated under the Rules, was compounded or settled by them under the terms of the applicable Government Order by remitting an amount of `19,75,028/-. They, therefore, assert that once the offence was thus allowed to be compounded and the amounts having been remitted by them under the Scheme, no further action could have been taken to recover any further amounts from them. They therefore, claim that the amount that was deposited by them as security _**W.P.(C) No. 3414 of 2016**_ ## **-: 5 :-** deposit are to be refunded to them. This is the underpinning of all their claims in this writ petition. 8. I have considered the order impugned in this writ petition, namely, Ext.P4 in extenso. Even though in Ext.P3 judgment, the competent authority was directed to consider the representation of the petitioners, adverting specifically to the ratio in _**V.K. Asokan and Others v. Assistant Excise Commissioner and Others**_ [(2009) 5 SCJ 783], I do not see that the Authority has specifically mentioned anything with respect to the ration of the said judgment in Ext.P4. All that is stated in Ext.P4, after referring to the judgment afore, is that it relates to different persons and that it has been delivered in different circumstances, because the petitioners in the said judgment were acquitted by the trial court. In the ## _**W.P.(C) No. 3414 of 2016**_ ## **-: 6 :-** case at hand, the petitioners were not acquitted; but were allowed to compound the offence under the terms of a valid Government Order. Ext.P4 does not say how this one circumstance would materially alter the way in which the law would apply in the case of the petitioners. It is also pertinent that Ext.P4 does not refer to the order issued by the authorities permitting the petitioners to compound the offence. This is pertinent because, under the scheme for compounding, the petitioners have remitted an amount of `19,75,028/- towards the arrears that were found due against them and therefore, the petitioners may be justified in contending that once the liability against them, that was earlier determined and adjudicated, were remitted by them the security deposit need not have been forfeited by the authorities. 9. I am cognisant that as per Ext.P1 order, ## _**W.P.(C) No. 3414 of 2016**_ ## **-: 7 :-** the security deposit was forfeited by the authority as early as in the year 2000. However, the matter does not end there because as per Ext.P3 judgment, the forfeiture of the security deposit was the sole issue that was directed to be considered by this Court. In such view of the matter, it would have been only appropriate that the competent authority had considered the specific contentions of the petitioners that they have remitted the entire amount under the scheme of amnesty and, therefore, that the forfeiture was unnecessary and illegal in terms of the ratio in _**V.K. Asokan's** case (Supra)._ 7. For the reasons that I have stated above and in a summation of my observations above, I deem it only apposite that I quash Ext.P4 to pave way for a fresh consideration of the petitioners' representation in terms of the directions contained in Ext.P3 judgment. I therefore, quash Ext.P4 and _**W.P.(C) No. 3414 of 2016**_ ## **-: 8 :-** direct the competent Secretary of the 3[rd] respondent to reconsider the representation of the petitioners, which led to Ext.P4 order, after affording an opportunity of being heard to the petitioners, as expeditiously as possible, but not later than two months from the date of receipt of a copy of this judgment. This writ petition is thus ordered. Sd/- **DEVAN RAMACHANDRAN, JUDGE** DST //True copy// P.A. To Judge