Vasanthakumari Amma Kollantazhikathathu Padinjattathil v. Commissioner of Excise, Kerala State, Thiruvananthapuram; The Assistant Excise Commissioner, Kollam; State of Kerala represented by the Secretary to Govt., Exise Department, Secretariat, Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 15TH DAY OF MARCH 2016/25TH PHALGUNA, 1937** **WA.No. 475 of 2016 () --------------------WP(C) 10418/2010 of THIS HONOURABLE COURT --------** **APPELLANT(S)/PETITIONER:** **-----------------------** **VASANTHAKUMARI AMMA KOLLANTAZHIKATHU PADINJATTATHIL, VADAKKEVILA VILLAGE, KOLLAM DISTRICT** **BY ADVS.SRI.N.DHARMADAN (SR.) SMT.D.P.RENU** **RESPONDENT(S)/RESPONDENTS:** **--------------------------** **1. THE COMMISSIONER OF EXCISE KERALA STATE, THIRUVANANTHAPURAM 695001** **2. THE ASSISTANT EXCISE COMMISSIONER, KOLLAM 691001** **3. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVT., EXCISE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695001** **RR1 TO R3 BY SENIOR GOVERNMENT PLEADER SRI. K.C. VINCENT** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 15-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** ## K. SURENDRA MOHAN & P.V.ASHA, JJ. ======================== ## W.A.No.475 of 2016 ================= Dated this the 15[th] day of March, 2016 ## JUDGMENT ## Surendra Mohan, J. The petitioner in W.P.(C) No.10418 of 2010 is in appeal before us against the judgment dated 21-10-2015 of the learned Single Judge for timely disposal of the petition. 2. The petitioner was a licencee of Toddy Shop Nos.1 to 34 of Pathanapuram Excise Range during the year 2000-2001. She had filed the Writ Petition challenging Ext.P8 order of the Deputy Excise Commissioner, Kollam directing her to pay the amounts demanded therein, in accordance with the Amnesty Scheme in force. The appellant sought for the issue of a writ of mandamus commanding the respondents to reconsider Ext.P8 after deducting the amount collected by way of Revenue Recovery proceedings and also the amount that was forfeited as per Rule 6(28) of the Kerala Abkari Shops (Disposal in Auction) Rules, 1974. The appellant also sought for a declaration that the W.A.No.475 of 2016 2 amount forfeited as per Rule 6(28) of the said Rules was liable to be deducted from the total dues outstanding to the Government and to refund the excess amount collected from her. 3. The claim of the appellant was contested by respondents 1 to 3 who filed a counter affidavit. According to them, the amount that had been forfeited invoking Rule 6(28) of the Rules had been the subject matter of challenge at the instance of the appellant before this Court. This Court in Writ Appeal had found the action of the respondents to be proper. The judgment in Writ Appeal was confirmed by the Apex Court which dismissed a special leave petition filed by the appellant. Therefore, the said issue having been concluded was not available to be reagitated in this appeal. The other amounts that had been recovered, were also, according to the respondents, given credit to. Therefore, it was contended that, the appellant was not entitled to any of the reliefs claimed. 4. The learned Single Judge considered the contentions of the respective parties. It was found that the appellant was not entitled to reagitate the contentions that were impugned in the previous proceedings. Therefore, the learned Single Judge has directed the appellant to pay off the amounts demanded in W.A.No.475 of 2016 3 monthly instalments. The appellant is aggrieved by the said direction. 5. According to the learned Senior Counsel, Sri.N.Dharmadan, who appears for the appellant, though it is true that the appellant had earlier filed O.P.No.3527 of 2002 before this Court challenging the forfeiture of the amount of security deposit made by her under Rule 6(28) of the Rules, the said O.P. was disposed of directing the 2[nd] respondent to look into the matter. The said judgment was challenged by the State in Writ Appeal No.2253 of 2005. The said Writ Appeal along with other connected cases was allowed by the Division Bench upholding the action of the State. The said judgment was confirmed by the Apex court by order dated 10-12-2007 in SLP (Civil) No.23107 of 2007. However, according to the learned counsel, later the Supreme Court has in V.V.Ashokan v. Assistant Excise Commissioner and others [2009 (14) SCC 85] held that the security deposits should be adjusted towards arrears while calculating the liability. Since other similarly placed defaulters have been given the benefit of adjustment of the amount of security deposit it is contended by the learned Senior Counsel that the appellant is also entitled to the benefit of said judgment. W.A.No.475 of 2016 4 The learned Senior Counsel also places reliance on the decision of a learned Single Judge of this Court dated 10-12-2015 in W.P.(C) No. 13955/2010. It is pointed out by the learned Senior Counsel that despite having suffered judgments of the Apex Court that were binding inter parties, the defaulters in those cases have been given the benefit of the dictum of the Supreme Court in the subsequent cases. For the above reasons, it is contended that the petitioner in the present case is also entitled to a similar relief. The learned Single Judge according to the counsel, went wrong in not extending the benefit of the dictum of the judgment of the Supreme Court to the appellant herein also. 6. This appeal comes up before us for admission. 7. We have heard learned Senior Counsel and the Government Pleader who appears for the respondents, at length. 8. The petitioner was the licencee in respect of the Toddy Shop Nos.1 to 34 of Pathanapuram Excise Range during the year 2000-2001. It is her case that, the shops were conducted by one C.K.Saji who was her power of Attorney Holder. He had met with an accident on 14-08-2000 and died. Therefore, the Toddy Shops could not be conducted for some time. The appellant had therefore executed a Power of Attorney in favour of another W.A.No.475 of 2016 5 person one Sri.K.Mohanlal. However, the department did not permit the said person to conduct the shop. 9. She was issued with a notice directing to pay the kist amount that was remaining in arrears. 10. The petitioner filed objections to the same and also challenged the inaction in O.P.No.1566/2001 before this Court. The Original Petition was admitted and an interim order directing the maintenance of status quo was also issued. However, during the pendency of the Original Petition the 2[nd] respondent invoked the power under Rule 6(28) of the Rules and cancelled the licence of the appellant. Thereafter, the Original Petition was disposed of by this Court permitting the appellant to pay the amount of kist that was remaining in arrears and directing that the licence would not be cancelled if the amount was paid. The appellant did not pay the said amount and therefore, her licence was cancelled and her security deposit was forfeited. The appellant thereupon challenged the cancellation of her licence before this Court in Original Petition No.3887/2001. The said Original Petition was allowed. The impugned order was set aside and this Court directed that a speaking order be passed, after considering the objections of the appellant. Thereafter, the matter was W.A.No.475 of 2016 6 reconsidered and a fresh order was passed cancelling the appellant's licence. She was also granted time by keeping the order in abeyance, in deference to the directions issued by this Court, to remit the amount that was remaining in arrears. However, the appellant did not pay the amount and therefore her licence was cancelled. 11. The appellant thereafter challenged the order in revision before the Government. Meanwhile, Revenue Recovery proceedings were initiated against her property. The appellant had challenged the said action in W.P.(C) No.3527/2002. It was the said writ petition that was carried by the appellant up to the Apex Court. The judgment of this Court upholding the action of the State in forfeiting the security deposit of the petitioner was thus confirmed. It is necessary to notice here that the said judgment rendered inter parties is binding on the appellant. In other words, in the case of the appellant, her challenge against forfeiture of the security deposit was considered by this court as well as the Supreme Court and was rejected. Therefore, any subsequent claim that she is entitled to claim adjustment of the said amount towards the dues payable by her cannot be countenanced. W.A.No.475 of 2016 7 12. The appellant has raised a further contention that she is entitled to the benefit of the amount deposited by her power of attorney for adjustment towards the kist arrears demanded from her. However, it is not clear whether the petitioner has got any right to claim the benefit of the said amount which was admittedly not deposited by her. We notice that the learned Single Judge has considered the matter in detail. The learned Senior Counsel draws our attention to the judgment of a learned Single Judge of this Court dated 10-12-2015 in W.P.(C) No.13955/2010. It is pointed out that, in similar circumstances, defaulters who had suffered judgments that had become concluded by decisions rendered inter parties by the Apex Court had been given the benefit of the subsequent judgment of the Supreme Court. We notice that the learned Single Judge has granted relief in the said case, in the light of an observation made by the Apex Court, that the facts in the said cases were same and that the Writ Appeal had to be disposed of on the basis of the judgment in the aforementioned case. It was only because the facts were similar, as observed by the Supreme Court, that the learned Single Judge has extended the benefits of the latter judgment to the parties therein. W.A.No.475 of 2016 8 13. The learned Single Judge has permitted the appellant to clear the arrears in monthly instalments, despite finding that the reliefs sought for could not be granted. Therefore, we are satisfied that the appellant has been granted the maximum relief that is permissible, in the circumstances of the case. We are not satisfied that the Writ Appeal requires to be admitted or that any of the reliefs prayed for herein should be granted. The Writ Appeal is dismissed. Sd/- K. SURENDRA MOHAN, JUDGE Sd/- P.V.ASHA, JUDGE MJL