IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 3RD SEPTEMBER 2008 / 12TH BHADRA 1930 OP.No. 14111 of 2002(E) --------------------------------- PETITIONERS: --------------------- 1. T.N.SUDHAKARAN, AGED 74 YEARS, S/O.LATE NARAYANAN,THACHANGATTU HOUSE, EDAVANAKKADU P.O.,ERNAKULAM -682 502. 2. V.A.AYYAPPAN,AGED 80 YEARS, S/O.AYYAPPANKUTTY,VADAKKEDATH HOUSE, EDAVANAKKADU P.O.,ERNAKULAM -682 502. *SUPPLEMENTAL PETITIONERS IMPLEADED: 3. AMBIKA, AGED 64 YEARS, W/O. LATE T.N. SUDHAKARAN, RESIDING AT THACHANGATTU HOUSE, EDAVANAKKADU.P.O., ERNAKULAM - 682 502. 4. SEENA, D/O. LATE T.N. SUDHAKARAN, AGED 42 YEARS, -DO- -DO-. 5. SHINY, D/O. LATE T.N. SUDHAKARAN, AGED 40 YEARS, -DO- -DO-. 6. BEENA, D/O. LATE T.N. SUDHAKARAN, AGED 38 YEARS, -DO- -DO-. 7. SINDHU, D/O. LATE T.N. SUDHAKARAN, AGED 36 YEARS, -DO- -DO-. 8. MINI, D/O. LATE T.N. SUDHAKARAN, AGED 34 YEARS, -DO- -DO-. O.P. NO. 14111/2002-E: 9. BINU, D/O. LATE T.N. SUDHAKARAN, AGED 32 YEARS, -DO- -DO-. *SUPPLEMENTAL PETITIONERS 3 TO 9 ARE IMPLEADED AS PER ORDER DATED 03/09/2008 IN I.A. NO. 8737/2003. BY ADV. SRI.PAUL MATHEW (PERUMPILLIL). RESPONDENTS: ----------------------- 1. THE ASSISTANT EXCISE COMMISSIONER, ERNAKULAM. 2. THE CIRCLE INSPECTOR OF EXCISE, EXCISE CIRCLE OFFICE, KOCHI. 3. THE DEPUTY TAHSILDAR (REVENUE RECOVERY), TALUK OFFICE,KOCHI. 4. SHRI K.K.VIJAYAN, KAITHAVALAPPIL HOUSE, NAYARAMBALAM P.O.,ERNAKULAM. 5. SHRI E.K.CHANDRASENAN, HOUSE NO.28/206, PANAMPILLY NAGAR,KOCHI. 6. SHRI M.P.PAUL,MENACHERY HOUSE, NAYARAMBALAM P.O.,ERNAKULAM. 7. SHRI R.A.PARAMESWARAN,RAMANKULATHU HOUSE KODUNGALLOOR P.O.,EDAVILANGU,THRISSUR. 8. SMT.KOCHY PARAMESWARAN RAMANKULATHU HOUSE, KODUNGALLOOR P.O.,EDAVILANGU,THRISSUR. 9. SMT.SANTHA KUMARAN KAITHAVALAPPIL HOUSE, NAYARAMBALAM P.O.,ERNAKULAM. GOVERNMENT PLEADER SRI. K.V. MANOJ KUMAR FOR R1 TO R3, ADV. SRI.SAIGI JACOB PALATTY FOR R6. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 03/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 14111/2002-E: ORDER ON C.M.P. NO. 23711/2002 & I.A. NO. 14914/2004 IN O.P. NO. 14111/2002 DISMISSED 03/09/2008. SD/- ANTONY DOMINIC, JUDGE. APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE NOTICE DTD. 06/03/2002 ISSUED BY THE R.2. TO THE PETITIONERS. EXT.P.2: COPY OF THE REPLY SUBMITTED BY THE PETITIONERS BEFORE THE R.2. ON 11/03/2002. EXT.P.3: COPY OF THE LETTER NO. CC-13/96 DTD. 20/03/2002 OF THE R.2. ISSUED TO THE PETITIONERS. EXT.P.4: COPY OF THE REPLY SUBMITTED BY THE PETITIONERS BEFORE THE R.2. ON 23/03/2002. EXT.P.5: COPY OF THE DEMAND NOTICE NO. A2-378/2002 ISSUED BY THE R.3. TO THE PETITIONERS DTD. 8TH MAY 2002. EXT.P.6: COPY OF THE ORDER G.O. (MS).NO.108/08/TD DTD. 26/05/2008 ISSUED BY THE SECRETARY TO GOVERNMENT. EXT.P.7: COPY OF THE NOTICE ISSUED BY THE R.2. TO THE PETITIONERS VIDE NO. CC. DTD. 09/06/2008. EXT.P.8: COPY OF THE RECEIPT NO. 4854662 OF BOOK NO. 48547 OF VILLAGE OFFICE, EDAVANAKKADU, EVIDENCING REMITTANCE OF RS.17,000/- BY THE PETITIONERS ON 30/11/2004. EXT.P.9: COPY OF THE RECEIPT NO. 4859930 OF BOOK NO. 48800 OF VILLAGE OFFICE, EDAVANAKKADU, EVIDENCING REMITTANCE OF RS.15,000/- BY THE PETITIONERS ON 31/12/2004. EXT.P.9.A: COPY OF THE RECEIPT NO. 4859933 OF BOOK NO. 48600 OF VILLAGE OFFICE, EDAVANAKKADU, EVIDENCING REMITTANCE OF RS.1,000/-BY THE PETITIONERS ON 01/01/2005. O.P. NO. 14111/2002-E: EXT.P.10: COPY OF THE RECEIPT NO. 4953318 OF BOOK NO. 49534 OF VILLAGE OFFICE, EDAVANAKKADU, EVIDENCING REMITTANCE OF RS.20,450/- BY THE PETITIONERS ON 31/01/2005. EXT.P.11: COPY OF THE ACKNOWLEDGMENT ENDORSED FROM THE OFFICE OF THE R.1. ON THE COVERING LETTER SUBMITTED BY SMT. AMBIKA ON 24/07/2008. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. prv. ANTONY DOMINIC, J. = = = = = = = = = = = = = = = = = O.P. No. 14111 OF 2002 E = = = = = = = = = = = = = = = = = Dated this the 3rd day of September 2008 J U D G M E N T The petitioners were contractors of Arrack Shop Nos. 17 to 30 of Narakkal Excise Range. It is stated that default was committed and at a stage when revenue recovery proceedings were initiated they had approached this Court by filing this Original Petition. By an interim order passed by this Court, the petitioners were directed to deposit an amount of Rs.89,000/- and on that basis, stay was granted. 2. Now following the Govt. order dated 26.5.2008 the petitioners have availed of the benefit of Amnesty Scheme. According to the petitioners, the amount due in terms thereof has also been deposited. What is now prayed for is that the amount deposited following the interim order in this case being excess, should be refunded to them. It is contended that going by the statement filed by the 2nd respondent, the remitted amount was O.P. No. 14111 OF 2002 -2- appropriated towards the liability of other contractors for the year 1981-82 during which period the petitioners were not even contractors. 3. Learned Govt. Pleader on the other hand making reference to the statement filed, submits that the petitioners were contractors in the abkari year 1980-81 alone. According to him, the dues for the year 1981-82 was also indicated in the statement for the reason that one Shri. K.K. Vijayan was himself a contractor along with the petitioners and power of attorney holder for others, for 1980-81 and he was also a contractor for the year 1981-82. According to the learned Govt. Pleader it was Shri. Vijayan's property that was sold in revenue recovery proceedings and the amount was appropriated towards the liability for both the years. It is in that context the liability of the contractors for the subsequent year was also shown. It is reiterated before me that since the petitioners were the contractors only for the year 1980-81, the amount deposited by them following the interim order was appropriated towards the liability of that year alone. 4. If as stated by the learned Govt. Pleader, the amount deposited by the petitioners was appropriated towards the year O.P. No. 14111 OF 2002 -3- 1980-81, since the petitioners were the contractors and as default was committed, such appropriation cannot be faulted. It is after such appropriation that the amount payable in terms of the amnesty scheme was quantified. If that be so, once the amount has been appropriated and credit has been given while quantifying the liability, it is not possible for the petitioners to contend that the amount should be refunded. For the aforesaid reason I do not find any error in the appropriation made or in the stand taken by the respondents that no amount is liable to be refunded to the petitioner. 5. Original petition fails and is dismissed. 6. According to the counsel for the petitioners, going by the statement filed, pendency of this original petition was the reason for not finalising the proceedings in relation to the amnesty scheme for the benefit of which the petitioners had submitted an application. Now that the original petition is dismissed the respondents shall finalise the proceedings on the production of a copy of this judgment. ANTONY DOMINIC JUDGE jan/- O.P. No. 14111 OF 2002 -4- ANTONY DOMINIC, J. = = = = = = = = = = = = = = O.P. No. 14111 OF 2002 E = = = = = = = = = = = = = = J U D G M E N T 3--9--2008.