State of Kerala v. Joseph Francis

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **MONDAY, THE 14[TH] DAY OF NOVEMBER 2022 / 23RD KARTHIKA, 1944** ## **RSA NO. 948 OF 2008** **AGAINST THE JUDGMENT IN AS 114/2003 OF III ADDITIONAL DISTRICT COURT,** ## **TRIVANDRUM** ## **OS 37/2000 OF SUB COURT, NEYYATTINKARA** ## **-----** ## **APPELLANTS/RESPONDENTS/DEFENDANTS:** 1 STATE OF KERALA, REP. BY THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 2 THE ASSISTANT EXCISE COMMISSIONER THIRUVANANTHAPURAM. 3 THE TAHSILDAR, NEYYATTINKARA TALUK OFFICE, NEYYATTINKARA. BY SR. GOVERNMENT PLEADER SMT.REKHA C. NAIR ## **RESPONDENT/APPELLANT/PLAINTIFF:** JOSEPH FRANCIS, S/O JOSEPH, AGED 56 YEARS, RESIDING AT JOSE VILLA, POOVAR DESOM, THIRUPPURAM VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADV SRI.K.B.PRADEEP THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14.11.2022, ALONG WITH RSA.838/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **MONDAY, THE 14[TH] DAY OF NOVEMBER 2022 / 23RD KARTHIKA, 1944** **RSA NO. 838 OF 2010** **AGAINST THE JUDGMENT IN AS 371/2005 OF III ADDITIONAL DISTRICT COURT,** ## **TRIVANDRUM** **OS 37/2000 OF SUB COURT, NEYYATTINKARA** ## **-----** ## **APPELLANTS/APPELLANTS IN AS/DEFENDANTS IN OS:** 1 STATE OF KERALA, REP. BY DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 2 THE ASSISTANT EXCISE COMMISSIONER THIRUVANANTHAPURAM. 3 THE TAHSILDAR NEYYATTINKARA TALUK OFFICE, NEYYATTINKARA. BY SR. GOVERNMENT PLEADER SMT.REKHA C. NAIR ## **RESPONDENT/APPELLANT IN AS/PLAINTIFF IN OS:** JOSEPH FRANCIS, S/O JOSEPH, AGED 56 YEARS, RESIDING AT JOSE VILLA, POOVAR DESOM, THIRUPPURAM VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADV SRI.K.B.PRADEEP THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14.11.2022, ALONG WITH RSA.948/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = =** **R. S. A. Nos.948 of 2008 & 838 of 2010 = = = = = = = = = = = = = = = = = = Dated this the 14[th] day of November, 2022** ## **J U D G M E N T** The defendants are the appellants. The suit was filed seeking two reliefs, (i) for recovery of money, being security deposit and, (ii) for injunction restraining revenue recovery proceedings. The trial court granted the second relief alone. The plaintiff succeeded in obtaining both reliefs in appeal. The defendants are in Second Appeal. 2. The plaintiff was the successful bidder in the auction of Toddy Shop No.21/96-97 at Kallumukku in Thiruppuram Excise Range, for the period 01.04.1996 to 31.03.1997. The annual rental was ` 3,15,000/-. 60% of the bid amount viz. ` 1,89,000/- was deposited towards security. The plaintiff was required to remit the rental in instalments at the rate of ` 31,500/-. Kist payable **RSA Nos.948/08 & 838/10** -: 2 :- for the month of April, May and June, 1996 were paid. However, thereafter, due to objections by the people, the plaintiff could not conduct the toddy shop for the remaining period. He failed to pay the balance kist amount. The defendants appropriated the security towards arrears of kist and initiated steps for recovery of the balance. It is thereupon that the suit was filed for refund of the advance amount, and also for prohibitory injunction against recovery proceedings for the balance kist amount. 3. The trial court, though refused to grant recovery of the advance amount, granted a decree for prohibitory injunction against revenue recovery. Challenging the decree, the plaintiff filed AS 114/2003, and the defendants filed AS 371/2005, in so far as it went against them. The first appellate court proceeded to consider both the appeals separately. The appeal filed by the plaintiff as AS 114/2003 was allowed decreeing the suit by directing refund of the advance ## **RSA Nos.948/08 & 838/10** -: 3 :- amount and confirming the decree for prohibitory injunction. The appeal filed by the defendants as AS 371/2005 was dismissed since the appeal AS 114/2003 was already disposed of. It is challenging the same that these Regular Second Appeals have been filed. 4. Heard Sri.Rekha C. Nair, learned Senior Government Pleader for the appellants-defendants, and Sri.K.B.Pradeep, the learned counsel for the respondentplaintiff on the following substantial question of law :- “ _In the light of Rule 6(2) of the Abkari Shops (Disposal in Auction) Rules, 1974 [herein after referred to as “the Rules”], read with Rule 6(26) of the Rules, were the courts right in having decreed the suit ?”_ 5. Though the plaintiff bid the toddy shop for a period of one year from 01.04.1996, he could conduct the shop only for a period of three months. The same is evidenced by Exts.A1 to A4 proceedings of the District Collector which restrained the conduct of the shop **RSA Nos.948/08 & 838/10** -: 4 :- consequent to mass agitation. Under such circumstances, are the defendants entitled to realise kist amount for the period during which the shop remained closed, is the short question. 6. Rule 6(26) of the Rules reads thus:- - _“(26) No remission or abatement of the rental shall be claimable by the licensee on any account whatsoever.”_ 7. The Rule stipulates that there cannot be any remission of kist on any account. Rule 6(2) of the Rules reads thus:- _“(2) No toddy, arrack or foreign liquor shop (other than a toddy or arrack sub-shop) shall be located outside the limits notified in the Gazette under rule 4, but with the previous sanction of Assistant Excise Commissioner it may be removed_ _from one place to another within such limits. But no shop other than a Foreign Liquor Wholesale shop shall be located in, or removed to a place-_ - _(a) within an area declared as a project area; or_ - _(b) within 400 metres from any Educational_ **RSA Nos.948/08 & 838/10** -: 5 :- ## _institutions, Temples, Church, Mosque or burial ground :_ _Provided that the Board of Revenue may, for sufficient_ _reasons, permit any shop to be located in or removed to a place referred to in clause (a) or clause (b) subject to such restrictions and conditions, if any, as may be imposed.”_ It provides that, even during the currency of contract a shop can be shifted from one site to another but within the notified limit. 8. While it is true that by virtue of Exts.A1 to A4 orders, the plaintiff could not conduct the shop at the premises where it was located, he could have sought for shifting of the shop in terms of Rule 6(2) mentioned above. 9. As noticed above, Rule 6 (26) prohibits remission of kist. Rule 6 (39) stipulates that a licensee shall be bound by the Rules under the Abkari Rules. In _**Mary v. State of Kerala and Ors., 2014 (14) SCC 272**_ , referring to a contract entered under the Abkari Act, the Apex Court held thus, **RSA Nos.948/08 & 838/10** -: 6 :- _“Accordingly, we are of the opinion that in a contract under the Abkari Act and the Rules made thereunder, the licensee undertakes to abide by the terms and conditions of the Act and the Rules made thereunder which are statutory and in such a situation, the licensee cannot invoke the doctrine of fairness or reasonableness.”_ 10. In the case at hand, all the more, when the plaintiff could have sought for transfer of the shop to any other site, he having failed to do so, cannot seek for any remission of kist. The Courts could not have granted the reliefs sought for by the plaintiff. Substantial question of law is answered accordingly. The decree and judgment of the Courts are liable to be interfered with and the suit is bound to fail. 11. Since the suit, in so far as it relates to revenue recovery, was decreed by the trial court and the appellate court, I do not think it appropriate to saddle the plaintiff with interest during pendency of the suit. The defendants shall not be entitled to recover interest **RSA Nos.948/08 & 838/10** -: 7 :- from the date of suit till this day. 12. Resultantly, the decree and judgment of the Courts below are set aside. The suit OS 37/2000 will stand dismissed. However, as stated in the preceding paragraph, the plaintiff shall not be made liable for interest for the period from the date of suit ie. 01.04.2000 till the date of this judgment ie. 14.11.2022. These Regular Second Appeals are allowed as above. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge