Margaret Franco v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN MONDAY, THE 20[TH] DAY OF JUNE 2022 / 30TH JYAISHTA, 1944 WA NO. 727 OF 2022** **JUDGMENT IN WP(C) 38133/2016 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** MARGARET FRANCO AGED 82 YEARS MARIYALAM HOUSE, SAKTHIKULANGARA P.O, KOLLAM - 691581. BY ADVS. K.P.SATHEESAN (SR.) P.MOHANDAS (ERNAKULAM) K.SUDHINKUMAR S.VIBHEESHANAN ## **RESPONDENTS/RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001. 2 THE SECRETARY, TAXES (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001. 3 THE COMMISSIONER OF LAND REVENUE, OFFICE OF THE COMMISSIONER OF LAND REVENUE, PUBLIC OFFICE, THIRUVANANTHAPURAM - 695033. WA NO. 727 OF 2022 **==> picture [19 x 7] intentionally omitted <==** 4 THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM - 695033. 5 THE DISTRICT COLLECTOR, KOLLAM, CIVIL STATION, KOLLAM - 691013. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA NO. 727 OF 2022 ..3.. ## ALEXANDER THOMAS & SHOBA ANNAMMA EAPEN, JJ. --------------------------------------------------------------------WA No. 727 of 2022 _(arising out of the impugned judgment dated 02.06.2022 in WP(C).No.38133/2016)_ ---------------------------------------------------------------------- Dated this the 2oth day of June, 2022 ## J U D G M E N T The aforecaptioned writ appeal is directed against the impugned judgment dated 02.06.2022, rendered by the learned Single Judge, closing the instant writ petition, WP(C) No.38133/2016. 2. The appellant herein is the petitioner in the writ petition and the respondents herein are the respondents in the writ petition. 3. Heard Dr.K.P. Satheesan, learned Senior counsel, instructed by Sri.Sabu Pullan, learned counsel appearing for the appellant in the writ appeal and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents herein. 4. The prayers in the instant WP(C) No.38133/2016 are as WA NO. 727 OF 2022 ..4.. follows:- - _“i) to issue a Writ of Certiorari or such other appropriate writ, order or direction quashing Ext.P13 order G.O.(Rt) No.803/2016/TD dated 17-10-2016 issued by the 2[nd] respondent as it is arbitrary, illegal and void;_ - _ii) to issue a Writ of Mandamus or order or direction to the 2[nd] respondent to refund an amount of Rs.41,49,629/- forfeited from the security deposit of the petitioner with interest at the rate of 18% from the date of forfeiture till the date of payment;_ - _iii) to issue a Writ of Mandamus or order or direction to the respondents to release the property taken over from the petitioner under action through revenue recovery proceedings for rupee one as the property is not liable to be auctioned since the entire kist amount is realized by the Government;_ - _iv) to issue a Writ of Mandamus or order or direction to respondents 1 to 3 to see that the auction of the petitioner’s property made for recovery of arrears of kist is set aside since the entire kist is realized by the Government through departmental management;_ - _v) to issue such other appropriate Writ, Order or direction as is deemed just and necessary in the circumstances of the case.”_ 5. The writ petition was filed on 28.11.2016 and the same was finally disposed of as per the impugned judgment on 02.06.2022. The operative portion of the impugned judgment in the writ petition reads as follows; _“The Writ Petition is of the year 2016. There was no interim stay. In view of passage of time no cause of action survives. The Writ Petition is ordered to be closed with liberty to revive in case something survives.”_ 6. A reading of the said judgment would indicate that the learned Single Judge has closed the writ petition, but with liberty to WA NO. 727 OF 2022 ..5.. revive the writ proceedings, in case, the petitioner is able to convince the Court that something in the matter is really survives. 7. Dr.K.P. Satheesan, learned Senior counsel, instructed by Sri.Sabu Pullan, learned counsel appearing for the appellant, would submit that the instant writ proceedings were instituted challenging Ext.P13 G.O.(Rt) No.803/2016/TD dated 17.10.2016, issued by the 2[nd] respondent – the competent authority of the State Government in the Taxes Department, and for a mandamus to the respondents to refund an amount of ₹41,49,629/- (Rupees Forty one lakhs forty nine thousand six hundred and twenty nine only) forfeited from the security deposit, made by the appellant and also to release the property auctioned as ‘bought in land’ along with the incidental reliefs. 8. According to the appellant, in the very nature of the reliefs sought for in the writ proceedings, there is no scope for any interim stay and the pleadings were completed and the writ petition was listed for final hearing. The learned Single Judge has held that since there is no interim stay in the writ proceedings filed in the year 2016 and that due to passage of time, no cause of action may survive. However, the learned Single Judge has also observed that the closure WA NO. 727 OF 2022 ..6.. of the writ proceedings will be with liberty to the petitioner to seek revival of the writ proceedings if she could convince the Court that something survives etc. 9. Sri.K.P.Satheesan, learned Senior Counsel, would submit, on behalf of the appellant, that the writ proceedings have disclosed a strong case on merits and that, for a similar defaulter under the Abkari Act and the Rules framed thereuder, the Apex Court has intervened, as per Ext.p9 judgment dated 05.03.2009, in the case in _**VK Ashokan v. Asst. Excise Commissioner & Others**_ [Civil Appeal No.1541/2009 - arising out of SLP(C) No.25060/2005] and connected civil appeals. Further that, the benefit as per Ext.P9 judgment has been granted by the State Government as per Ext.P10 Government letter and that, the orders and directions issued by the Apex Court in Ext.P9 judgment have been followed by this Court in the case of other similar defaulters as per Ext.P11 common judgment dated 10.12.2015 in WP(C) Nos.13570, 13571 & 13955 of 2010. Still further that, the orders and directions of the Apex Court in Ext.P9 judgment and that of this Court in Ext.P11 judgment have also been followed in the case of none other than the present appellant as per Ext.P12 judgment dated 06.10.2015 in WP(C) No.6421/2012. That, WA NO. 727 OF 2022 ..7.. none of these aspects has been considered in the impugned judgment and that, if the appellant is given an opportunity to urge these matters before the learned Single Judge, then, she would be able to convince the Court about the merits of this case and that at least her pleas and contentions could be considered by this Court on merits instead of dismissing it in the manner ordered as above. 10. We are of the view that the appellant has got a case that in the very nature of the main relief sought for in the writ petition, there was no scope for getting any interim order and that therefore, grant of interim order by itself may not be the basis to treat this case as infructuous. Further, the appellant also raised the contentions on merits based on Ext.P9 judgment of the Apex Court and Exts.P10 & P11 judgments of this Court, in which Ext.P11 judgment has been rendered in the case of the appellant and Ext.P10 is the Government proceedings wherein the very same benefit covered by Exts.P9 & P11 are stated to have been granted in the case of other similarly placed persons. We are only holding that the appellant has such a plea that she has got valid grounds on merits to urge in the writ petition. Solely on this ground, we are of the view that the dismissal of writ petition on the premise that it has become infructuous would require WA NO. 727 OF 2022 ..8.. interdiction so that the matter could be remitted for consideration and decision afresh. 11. For effectuating such a remit, it is ordered that the impugned judgment dated 02.06.2022 rendered by the learned Single Judge, dismissing WP(C) No.38133/2016 is set aside. Consequently, WP(C) No.38133/2016 will stand restored to the file of this Court to enable the learned Single Judge concerned to hear both sides and take a decision thereon afresh. 12. Accordingly, the Registry is requested to list WP(C) No.38133/2016 before the appropriate court concerned, preferably, a court dealing with hearing matters so that the main matter in the writ petition could be heard and disposed of without much delay. With these observations and directions, the above writ appeal will stand disposed of. Sd/ALEXANDER THOMAS, JUDGE Sd/SHOBA ANNAMMA EAPEN, JUDGE skk/bka