IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 28TH MARCH 2008 / 8TH CHAITHRA 1930 WP(C).No. 5015 of 2008(V) ------------------------------------- PETITIONER: ------------------- K.ASOKAN, AERAL VEEDU,PRALAYAGIRI THOKKAD P.O., VARKALA. BY ADV. SRI.N.DHARMADAN (SR.), ADV. SMT.D.P.RENU. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT (TAXES) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. COMMISSIONER OF EXCISE, OFFICE OF THE COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. 3. ASSISTANT EXCISE COMMISSIONER, OFFICE OF THE COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. 4. VANCHU KAMAL, MANJU BHAVAN KADAKKAL VILLAGE, VARKALA. R1 TO R3 BY SR. GOVT. PLEADER SRI. P.K. RAVIKRISHNAN, ADV. SRI.P.R.RAMACHANDRA MENON. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/03/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.5015/2008-V: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE POWER ATTORNEY DTD. 23/03/1999. EXT.P.2: COPY OF THE ORDER DTD. 16/06/2000 ISSUED BY EXCISE COMMR., EXT.P.2.A: COPY OF THE ORDER DTD. 28/03/2001 ISSUED BY ASST. EXCISE COMMR. EXT.P.3: COPY OF THE JUDGMENT IN O.P. 12975/2002 DT. 07/02/2003 OF THIS HONOURABLE COURT. EXT.P.4: COPY OF THE ORDER IN I.A. 2628/03 IN W.A. 380/03 DT. 23/03/2004 OF THIS HONOURABLE COURT. EXT.P.4.A: COPY OF THE JUDGMENT IN W.A. 580/03 DT. 11/10/2004 OF THIS HONOURABLE COURT. EXT.P.5: COPY OF THE JUDGMENT IN R.P. 175/05 DT. 28/09/2007 OF THIS HONOURABLE COURT. EXT.P.6: COPY OF THE PETITION DT. 18/12/2007 BY PETITIONER BEFORE THE R.2. EXT.P.7: COPY OF THE JUDGMENT IN O.P. 5571/1998 DT. 17/06/1998 OF THIS HONOURABLE COURT. EXT.P.8: COPY OF THE JUDGMENT IN W.A. 1458/98 DT. 27/08/2003 OF THIS HONOURABLE COURT. EXT.P.9: COPY OF THE COUNTER AFFIDAVIT IN O.P. 5427/98 FILED BY GOVT. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE prv. THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = WP(C).No.5015 of 2008-V = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 28th day of March, 2008. JUDGMENT 1. The petitioner owned a building and an FL3 licence. He, thereafter, executed a power of attorney in favour of the fourth respondent. Utilizing that power of attorney, the fourth respondent transferred the property in his name and obtained the FL3 licence also to be transferred in his name. It is, in its gist, the allegation of the petitioner. 2. On disputes being raised on the aforesaid issue, the parties are before the Sub Court, Kottarakkara contesting O.S.14/2003, which is still pending for trial. WP(C)5015/2008 -: 2 :- 3. In the interregnum, the petitioner objected to the further renewal of FL3 licence in the name of the fourth respondent. He filed a writ petition. That ended up in Ext.P3 judgment. He filed a writ appeal in which Ext.P4 order was issued directing that licence need not be renewed in favour of either of the parties. Later, that writ appeal ended as per Ext.P4(a) judgment holding, among other things, that it would not be appropriate to pass restraint orders regarding issuance of FL3 licence. At the instance of the petitioner, Ext.P5 order was issued in a review petition whereby the petitioner was given the opportunity to raise all issues before the appropriate court, authorities etc. in accordance with law. Thereafter, there was yet another writ petition and a writ appeal judgment was also issued. 4. With the passage of time, the civil suit is still pending consideration and the petitioner WP(C)5015/2008 -: 3 :- is challenging the decisions of the statutory authorities under the Abkari laws. 5. The learned senior counsel appearing for the petitioner contended that in view of the statutory embargo contained in the Abkari laws, it would not be possible for the petitioner to challenge the licence before the civil court because that would amount to a challenge to the statutory function of the authorities under the excise law. It is also pointed out that the inordinate delay in the adjudication of the suit has put the petitioner to peril. 6. Per contra, the learned counsel appearing for the contesting fourth respondent points out that his client is in no way responsible for the delay in disposing of the suit and as of now, as observed by the Division Bench in Ext.P4(a) judgment, there could be no interdictory orders interfering with the WP(C)5015/2008 -: 4 :- renewal of FL3 licence in favour of the fourth respondent. As stated in Ext.P3 judgment and EXt.P4(a) judgment, the parties have necessarily to work out their remedies before the civil court. As rightly noticed in Ext.P3 with which I am in complete agreement, even a declaration in relation to the right over the licence in question is a matter that can be adjudicated before a civil court. Whatever that be, as noticed in Ext.P4(a) judgment, it would not be possible for this Court to injunct the grant or renewal of licence in favour of the fourth respondent. Though the learned senior counsel for the petitioner wanted me to do so, I am not persuaded to follow Ext.P4 interlocutory order issued by the Division Bench for two reasons. Firstly, it has emerged in Ext.P4(a) judgment. Secondly, it gives reason why Ext.P4 order cannot continue to hold. 7. For the foregoing reasons, while dismissing WP(C)5015/2008 -: 5 :- this writ petition leaving open all the contentions of the rival parties, the Sub Court, Kottarakkara, on production of a copy of this judgment, will make an endeavour to expedite the final disposal of O.S.14/2003. It is further clarified that the suit shall be decided uninfluenced and untrammelled by anything contained in any of the judgments which are produced in this writ petition and also in any statement in this judgment. No costs. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/080408