IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 16TH FEBRUARY 2009 / 27TH MAGHA 1930 WP(C).No. 30348 of 2008(K) -------------------------- PETITIONER(S): --------------- P.SIDHARTHAN, AGED 63 YEARS, S/O. PADMANABHAN, THEKKEYIL HOUSE, ARIKUZHA P.O., THODUPUZHA. BY ADV. MR.RENJITH B.MARAR MR.L.RAJESH NARAYAN MS.LAKSHMI.N.KAIMAL RESPONDENT(S): -------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, EXCISE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. ASSISTANT EXCISE COMMISSIONER, EXCISE DIVISION OFFICE, PALAKKAD. 3. ASSISTANT EXCISE COMMISSIONER, EXCISE DIVISION OFFICE, IDUKKI. 4. DEPUTY TAHSILDAR (RR), TALUK OFFICE, THODUPUZHA. GOVERNMENT PLEADER MS. K.R. DEEPA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 30348 of 2008 APPENDIX EXT.P1: COPY OF PERMIT NO.64/ID/MY/9697. EXT.P2: COPY OF THE COMMUNICATION NO.ID2-9034/96/LD DTD. 16.12.1996 BY R3 TO R2. EXT.P3: COPY OF NOTICE DTD 30.1.1997. EXT.P4: COPY OF CERTIFICATE DTD 31.1.1997. EXT.P5: COPY OF NOTICE DTD 16.2.1998. EXT.P6: COPY OF REPRESENTATION DTD 30.4.1998. EXT.P7; COPY OF REPRESENTATION DTD 18.9.1998. EXT.P8: COPY OF DEMAND NOTICE NO.B7-917/99. EXT.P9: COPY OF JUDGMENT DTD 12.2.1999 IN O.P.NO.3672/99. EXT.P10: COPY OF ORDER DTD 11.9.1999 BEARING NO.P7/2544/98. EXT.P11: COPY OF DEMAND NOTICE DTD 7.2.2006. EXT.P12: COPY OF NOTICE UNDER SECTION 34 OF THE REVENUE RECOVERY ACT DTD 1.9.2006. EXT.P13: COPY OF THE NOTICE UNDER SECTION 7 OF THE REVENUE RECOVERY ACT. EXT.P14: COPY OF THE SCHME DTD 26.5.2008 BEARING NO.GO(MS) 108/ 2008/TD. EXT.P15: COPY OF REPRESENTATION DTD 17.7.2008. EXT.P16; COPY OF JUDGMENT DTD 7.8.2008 IN W.P.(C) NO.30834/06. EXT.P17: COPY OF THE ORDER BEARING NUMBER P7-2544/98 RECEIVED BY THE PETITIONER ON 25.9.2008. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.30348 OF 2008 ---------------------------------------- Dated this the 16th day of February, 2009 JUDGMENT The petitioner is a defaulter in re-payment of abkari dues to the Government. Earlier, he approached this Court by filing W.P.(C) No.30834/2006, in which there was an interim order directing the petitioner to pay some amounts. Pursuant thereto, the petitioner claims to have deposited Rs.55,221/- and Rs.1 lakh. During the pendency of that writ petition, the petitioner decided to take advantage of the Amnesty Scheme declared by the Government. Accordingly, he applied to the Government for the benefit of the Amnesty Scheme. In view of the same, on the request of the petitioner, the writ petition was disposed of directing the Asst. Excise Commissioner, Palakkad to consider the petitioner's application under the Amnesty Scheme, after adjusting the amounts already paid pursuant to the interim orders. Thereafter, Ext.P17 order was passed by the Asst. Excise Commissioner, Palakkad directing the petitioner to pay an amount of Rs.2,04,292/-. According to the petitioner, W.P.(c)No.30348/08 2 the said amount was fixed without adjusting the amounts already paid by the petitioner in compliance with the interim orders of this Court, as directed in Ext.P16 judgment. The petitioner, therefore, seeks the following reliefs: “i. issue a Writ in the nature of Certiorari or any other appropriate Writ, Order or Direction calling for the records leading to Ext.P17 and quash the same. ii. issue a Writ in the nature of Mandamus or any other appropriate Writ, Order or Direction directing the 2nd respondent to pass fresh orders after affording an opportunity of being heard to the petitioner. iii. issue a Writ in the nature of Mandamus or any other appropriate Writ, Order or Direction commanding the 2nd respondent to consider and pass fresh orders on Ext.P15 representation after hearing the petitioner, within a time limit to be fixed by this Hon'ble Court. iv. Declare that the petitioner is eligible to be considered for the benefit of Ext.P14 scheme formulated by the 1st respondent”. 2. A statement has been filed by the Circle Inspector of Excise, Chittur specifically stating that all payments made by the petitioner have been given credit to. A detailed statement of calculation has also been filed. A reply affidavit has been filed by the petitioner, in which, although the adjustment of the payment has been admitted, the petitioner would contend that, that adjustment was not against the W.P.(c)No.30348/08 3 principal, but against the interest and therefore, that adjustment is wrong. 3. I have considered the rival contentions in detail. 4. Admittedly, in the interim orders or in the final judgment, there is no specific direction regarding adjustment of the amounts. Therefore, such adjustment can only be in accordance with the law of contract regarding appropriation, which requires that the payments shall be appropriated first against costs, then against interest and finally against principal. In the above circumstances, when payments were made by the petitioner, that had to be first credited towards interest first, which had already been done. Therefore, there is no merit in the contentions raised by the petitioner in this writ petition. Accordingly, the writ petition is dismissed. However, if the petitioner has already paid the amounts as per Ext.P17 within the stipulated time, the petitioner shall be allowed to close the account in accordance with the Scheme. S. SIRI JAGAN, JUDGE Acd W.P.(c)No.30348/08 4