High Court of KeralaSingle Judge2019-12-19Writ petitions dismissed (no relief granted); c...

W.P.(C) No.22949/2008 & W.P.(C) No.3788/2015, High Court of Kerala at Ernakulam

Case / Petition Number:WP(C).No.22949/2008 & WP(C).No.3788/2015

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anu Sivaraman
Judgment Date: 2019-12-19
Court Decision / Holding: Dismissed. The writ petitions were dismissed, with the court noting that the issues are covered by the Division Bench decision in W.A. No.2485/2005 and that Ext.P6 Amnesty Scheme requires no alteration; no costs awarded.
Final Disposition: Writ petitions dismissed (no relief granted); costs: none

Parties to the Case

Appellants / Petitioners

Biju Thomas
Mary Thomas (expired)

Respondents

Secretary to Government Taxes, (G) Department, State of Kerala
Commissioner of Excise, State of Kerala
Deputy Excise Commissioner Pathanamthitta Division, Pathanamthitta
Circle Inspector of Excise, Pathanamthitta
District Collector, Ernakulam
Deputy Tahsildar (R.R), Muvattupuzha

Legal Representation & Advocates

Counsels for Petitioners

• SRI.K.REGHU KOTTAPPURAM
• SRI.R.MAHESH (KOTTAPPURAM)

Counsels for Respondents

• SRI.S.MANU, SENIOR GOVERNMENT PLEADER

Case Synopsis & Summary

Two writ petitions (WP(C).No.22949/2008 and WP(C).No.3788/2015) filed by Biju Thomas and Mary Thomas challenge recovery actions and the forfeiture of security deposits arising from cancellations of liquor licenses under the Abkari Shops (Disposal in Auction) Rules 1974, and the consequent revenue recovery. The petitions contend that the security deposit of Rs.39,80,000/- ought not to have been forfeited since cancellation under Rule 6(30) was not warranted in view of an acquittal in Sessions Case No.740/04 (District & Sessions Court, Pathanamthitta) finding them not guilty. They also challenge Rule 6(28) cancellation for default in October 2000, arguing that shops were closed and that the state had extended the period till 20.01.2001 only to replenish the security deposit for future conduct of the shop. Further, they seek to settle the outstanding liability for Toddy Shops Nos.1–35 (Pathanamthitta Range, 2000-01) under Exhibit P6 Amnesty Scheme, claiming entitlement to pay only 10% of interest under Clause 5 of the Amnesty Scheme due to remitted principal amounts. They also seek reduction of balance as on 01-04-2001 with credits. The respondents contend that the Division Bench in W.A. No.2485/2005 upheld the sanctity of Rule 6(28), Ext. P6 Amnesty Scheme requires no alteration, and the petition lacks merit; the court ultimately held the petitions to be covered by the Division Bench decision and dismissed them, with no costs.

Provisions of Law Cited

Rule 6(30) of Abkari Shops (Disposal in Auction) Rules 1974Rule 6(28) of Abkari Shops (Disposal in Auction) Rules 1974Abkari Shops (Disposal in Auction) Rules 1974

Legal Doctrines & Maxims

Ultra vires

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argued that (i) the security deposit forfeiture under Rule 6(30) was unwarranted in view of the acquittal in Sessions Court; (ii) cancellation under Rule 6(28) for default in October 2000 lacks sustenance since shops were closed and there was an opportunity to replenish until 20.01.2001; (iii) Ext.P6 Amnesty Scheme should be applied to settle outstanding liability, with Clause 5 permitting remittance of only 10% of interest where principal is remitted; (iv) the balance as on 01-04-2001 should be recalculated with credits for remitted amounts and security deposits.

Contentions of Respondents

The State counters that the challenge to Rule 6(28) was decided by the Division Bench in W.A. No.2485/2005 and held unsustainable; Ext.P6 Amnesty Scheme is not challenged; the petitions are covered by the Division Bench decision; no interference is warranted; the computation of arrears has been considered within the settled framework.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
All Manipur Pensioners Association by its Secretary v. State of Manipur and others	AIR (2019) SC 3338	Mentioned Only	Cited by counsel; court mentions the decision but does not apply its principles to grant relief.
W.A. No.2485/2005	—	Positive	Division Bench decision that challenged Rule 6(28) was unsustainable; the present judgment treats this as binding against the petitioner.
Judgment in W.P.(C) No. 7585/08	—	Mentioned Only	Exhibit reference; cited as part of the record, not as binding precedent.
Judgment dated 3.12.2001 in SC No.740/04, District & Sessions Court, Pathanamthitta	SC No. 740/04	Mentioned Only	Referenced as factual background (acquittal); not treated as binding authority in the decision.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against W.P.(C) No.22949/2008 & W.P.(C) No.3788/2015, High Court of Kerala at Ernakulam and instantly map out authorities that support, challenge, or govern your position.

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** **THURSDAY, THE 19TH DAY OF DECEMBER 2019/28TH AGRAHAYANA, 1941** ## **WP(C).No.22949 OF 2008(F)** ## **PETITIONERS:** |**1**||**BIJU THOMAS**| |---|---|---| |||**S/O. THOMAS, KAKKANATTUPARAMBIL HOUSE,**| |||**KIZHAKOMBU KARA, KOOTHATTUKULAM VILLAGE,**| |||**MUVATTUPUZHA TALUK, DIST.ERNAKULAM.**| |**2**||**MARY THOMAS (EXPIRED)**| |||**W/O.THOMAS**| |||**KAKKANATTUPARAMBIL HOUSE,**| |||**KIZHAKOMBU KARA, KOOTHATTUKULAM VILLAGE,**| |||**MUVATTUPUZHA TALUK, DIST.ERNAKULAM.**| |||**BY ADV. SRI.K.REGHU KOTTAPPURAM**| |**RESPONDENTS**<br>**:**||| |**1**||**THE SECRETARY TO GOVERNMENT**| |||**TAXES, (G) DEPARTMENT, STATE OF KERALA,**| |||**THIRUVANANTHAPURAM - 695 001**| |**2**||**THE COMMISSIONER OF EXCISE**| |||**STATE OF KERALA, THIRUVANANTHAPURAM - 695 001**| |**3**||**THE ASSISTANT EXCISE COMMISSIONER**| |||**PATHANAMTHITTA DIVISION, PATHANAMTHITTA.**| |**4**||**THE CIRCLE INSPECTOR OF EXCISE**| |||**EXCISE CIRCLE OFFICE, PATHANAMTHITTA - 689 645**| |**5**||**THE DISTRICT COLLECTOR, ERNAKULAM**| |||**DISTRICT. CIVIL STATION, ERNAKULAM - 682 030**| |**6**||**THE DEPUTY TAHSILDAR (R.R)**| |||**MUVATTUPUZHA, DIST.ERNAKULAM - 686 661**| |||**SR. GP. SHRI. S. MANU**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.12.2019, ALONG WITH WP(C).3788/2015(W), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C)No.22949/2008 & WP(C)No.3788/2015 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 19TH DAY OF DECEMBER 2019/28TH AGRAHAYANA, 1941** ## **WP(C).No.3788 OF 2015(W)** ## **PETITIONER:** **BIJU THOMAS, S/O.THOMAS, KAKKANATTUPARAMBIL HOUSE, KIZHAKOMBU KARA, KOOTHATTUKULAM VILLAGE, MUVATTUPUZHA TALUK, DIST. ERNAKULAM.** **BY ADVS. SRI.K.REGHU KOTTAPPURAM SRI.R.MAHESH (KOTTAPPURAM)** ## **RESPONDENTS:** **1 THE SECRETARY TO GOVERNMENT TAXES, (G) DEPARTMENT, STATE OF KERALA, THIRUVANANTHAPURAM - 695 001.** **2 THE COMMISSIONER OF EXCISE STATE OF KERALA, THIRUVANANTHAPURAM - 695 001. 3 THE DEPUTY EXCISE COMMISSIONER PATHANAMTHITTA DIVISION, PATHANAMTHITTA - 689 645. 4 THE DEPUTY TAHASILDAR (RR) MUVATTUPUZHA, DIST. ERNAKULAM** **BY SRI.S.MANU, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.12.2019, ALONG WITH WP(C).22949/2008(F), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C)No.22949/2008 & WP(C)No.3788/2015 3 ## **JUDGMENT** ## **Dated this the 19th day of December 2019** ## W.P.(C) No.22949/2008 is filed seeking for the following prayers: - “(i) Issue appropriate writ declaring that the security amount of Rs.39,80,000/- ought to have been not forfeited to the govt. in the case of the petitioners as the cancellation of licence under Rule 6(30) of Abkari Shops (Disposal in Auction) Rules 1974 was not warranted in view of the order of acquittal passed by the Sessions Judge finding that the petitioners were not guilty of the offences charged against them in the judgment dated 3.12.2001 in SC No.740/04 of District and Sessions Court, Pathanamthitta. - (ii) Issue appropriate Writ declaring that the cancellation of licence vide Exhibit P1 under Rule 6(28) of Abkari Shops (Disposal in Auction) Rules 1974 for default in payment of kist amount for October 2000 has no sustenance as the shops were closed and Abkari case booked on 30.11.2000 even before the expiry of period granted by this court till 20.1.2001 allowing to replenish the security deposit by paying the defaulted installment of kist for future conduct of shop thereafter. - (iii). Issue appropriate Writ declaring that the outstanding liability in respect of the toddy shop Nos. 1 to 35 in Pathanamthitta Range for the year 2000-01 can be settled under Exhibit P6 Amnesty Scheme by making the petitioner liable only to pay 10% of Rs.55,95,581/- allegedly demanded towards interest vide Exhibit P12 by placing the petitioners under clause 5 of Exhibit P6 Amnesty Scheme as the petitioners have remitted excess amount of Rs.2,47,718/towards principal already. WP(C)No.22949/2008 & WP(C)No.3788/2015 4 - (iv) Issue appropriate Writ declaring that the balance liability of the petitioners in respect of T.S.Nos. 1 to 35 under Pathanamthitta Range as on 1-4-2001 was the sum of Rs.8,20,800/- after taking into credit of the amount of kist paid and the security deposit of the petitioner available.” 2. W.P.(C) No.3788/2015 is filed challenging Ext.P11 notice of sale of property pursuant to the revenue recovery proceedings initiated in respect of the amounts due from the petitioner, which is the subject matter of W.P.(C) No.22949/2008. It is the contention of the petitioner that if the benefit of clause 5 of Ext.P3 Amnesty Scheme was granted to the petitioner, the amounts as stated in Ext.P11 would not be due from the petitioner and that therefore, no proceedings are liable to be taken against him. 3. Heard the learned counsel for the petitioner and the learned Government Pleader. 4. Though elaborate arguments are raised, I notice that an earlier writ petition had been filed by petitioner as W.P.(C) No.26492/2001, where the revenue recovery proceedings initiated against the petitioner had been challenged. A declaration was also sought for in that writ petition that rule 6(28) of Abkari Shops (Disposal in Auction) Rules 1974 is ultra vires and unsustainable. The said writ petition had been allowed. The State had taken the matter WP(C)No.22949/2008 & WP(C)No.3788/2015 5 in appeal by filing W.A. No.2485/2005. The writ appeal filed by the State was allowed and the judgment of the learned Single Judge was set aside. It was found by the Division Bench that the challenge raised by the petitioner as against rule 6(28) of Abkari Shops (Disposal in Auction) Rules was unsustainable. 5. The learned counsel for the petitioner submits that there are further prayers in W.P.(C) No.22949/2008. Prayer No.(iii) is with regard to a declaration that the petitioner is entitled to the benefit of clause 5 of Ext.P6 Amnesty Scheme. Ext.P6 is an Amnesty Scheme dated 26.05.2008. The petitioner admittedly is not a person who had remitted the entire principal amount due from him. Ext.P6 Amnesty Scheme provides that in cases where principal amount have already been remitted and only interest remains, 10% of the interest only need be remitted. Though the learned counsel for the petitioner states that the provisions of the Scheme are discriminatory and places reliance on the decisions of the Apex Court in **All Manipur Pensioners Association by its Secretary** v. **State of Manipur and others** [AIR (2019) SC 3338], I find that there is no challenge in the writ petition against Ext.P6 Amnesty Scheme. 6. The substantial prayers of the petitioner with regard to the arrears due from him stand covered by the decision of the Division WP(C)No.22949/2008 & WP(C)No.3788/2015 6 Bench in W.A.No.2485/2005. If that be so, there can be no illegality in the calculation of amounts due by the respondents. The petitioner does not challenge the Amnesty Scheme and no reason is forthcoming with regard to the claim made by him for the benefit of clause 5 of the Scheme, since the petitioner has not remitted the entire principal amount. In the above circumstances, the prayers sought for in these writ petitions cannot be allowed. The issue stands covered against the petitioner by the judgment of the Division Bench in W.A. No.2485/2005. The writ petitions fail and the same are accordingly, dismissed. Though the petitioner had been required to show cause why the fact of filing of the earlier writ petition had not been disclosed in the later writ petitions filed seeking substantially the same reliefs, in view of the fact that no relief is being granted to the petitioner in these writ petitions, I refrain from imposing costs in these writ petitions. **Sd/ANU SIVARAMAN JUDGE** Jvt/3.1.2020 WP(C)No.22949/2008 & WP(C)No.3788/2015 7 ## **APPENDIX OF WP(C) 3788/2015** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A PHOTOCOPY OF REPRESENTATION DT.4.9.2001. EXHIBIT P2 A PHOTOCOPY OF INTERIM ORDER DT. 21.5.08. EXHIBIT P3 A PHOTOCOPY OF ORDER NO.GO(MS) 108/08/TD DT. 26.5.08. EXHIBIT P4 A PHOTOCOPY OF THE LETTER NO. B2 - 8359/01 DT. 02.7.08 WITH TRANSLATION. EXHIBIT P5 A PHOTOCOPY OF RECEIPT DT. 30.5.08. EXHIBIT P6 A PHOTOCOPY OF LETTER NO. 30/08 DT. 09.6.08 WITH TRANSLATION. EXHIBIT P7 A PHOTOCOPY OF PETITION DT. 09.7.08. EXHIBIT P8 A PHOTOCOPY OF ORDER NO. DP 6-2043/06 DT. 19.7.08 WITH TRANSLATION. EXHIBIT P9 A PHOTOCOPY OF OBJECTION DT. 23.7.08. EXHIBIT P10 A PHOTOCOPY OF JUDGMENT DT. 18.7.08 IN WPC 7585/08. EXHIBIT P11 A PHOTOCOPY OF RECOVERY NOTICE NO. B2-8359/01 DT. 20.12.14.** ## **APPENDIX OF WP(C)22949/2008** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF ORDER No.DPI-3528/2000 DATED 22.1.2001 ISSUED BY 3RD RESPONDENT. EXHIBIT P2 TRUE COPY OF ORDER No.XA1-3097/01 DATED 6.2.2001. EXHIBIT P3 TRUE COPY OF NOTICE VIDE No.B2-8359/01 (DN 869/01) DATED 25.8.01 WITH ENGLISH TRANSLATION. EXHIBIT P4 TRUE COPY OF REPRESENTATION DATED 4.9.01 TO 2ND RESPONDENT. EXHIBIT P5 TRUE COPY OF THE INTERIM ORDER DATED 21.5.08 IN W.P.(C)No.7585/08.** WP(C)No.22949/2008 & WP(C)No.3788/2015 8 **EXHIBIT P6 TRUE COPY OF ORDER VIDE G.O.(MS)No.108/08/TD DATED 26.5.08.** **EXHIBIT P7 TRUE COPY OF THE LETTER No.B2.8359/01 DATED 2.7.08 WITH ENGLISH TRANSLATION.** - **EXHIBIT P8 TRUE COPY OF RECEIPT DATED 30.5.08. EXHIBIT P9 TRUE COPY OF LETTER No.30/08 DATED 9.6.08 ISSUED BY CIRCLE INSPECTOR WITH ENGLISH TRANSLATION.** - **EXHIBIT P10 TRUE COPY OF PETITION DATED 9.7.08. EXHIBIT P11 TRUE COPY OF JUDGMENT IN W.P.(C)No.20414/08 DATED 15.7.08.** - **EXHIBIT P12 TRUE COPY OF ORDER No.DP-6-2043/06 DATED 19.7.08 ISSUED BY 3RD RESPONDENT WITH ENGLISH TRANSLATION.** - **EXHIBIT P13 TRUE COPY OF OBJECTION DATED 23.7.08 SENT BY PETITIONERS.** - **EXHIBIT P14 TRUE COPY OF JUDGMENT DATED 18.7.2008 IN W.P. (C)No.7585/08.** - **EXHIBIT P15 A PHOTOCOPY OF THE COMMUNICATION No.XM-1-25 757/2001 DATED 6.1.2016 WITH ENGLISH TRANSLATION.** - **EXHIBIT P15 THE PHOTOSTAT COPY OF THE ORIGINAL PETITION No.26942/2001.** - **EXHIBIT P16 THE PHOTOSTAT COPY OF THE JUDGMENT DATED 24.8.2005 IN O.P.No.26942/2001.** //TRUE COPY// P.A. TO JUDGE