IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 WP(C).No. 23850 of 2009(A) ------------------------------------ PETITIONER(S): ------------------------ 1. K.C.RAJAN, S/O.KUNNIYARA CHENNAN KUTTY, SREE NARAYANAPURAM VILLAGE, KODUNGALLUR TALUK. 2. T.P.SALEEM, S/O.THRISHNATH PUSHPANGADAN, EDATHIRUTHY VILLAGE, KODUNGALLUR TALUK. 3. M.G.SADANANDAN, S/O.GOPALAN, MOTHAYIL HOUSE, NADAMA VILLAGE,MUKUNDAPURAM TALUK. BY ADVS.MR.T.A.SHAJI SMT.S.SHEEJA KUMARY(AYOOR) RESPONDENT(S): ---------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. THE DEPUTY EXCISE COMMISSIONER, THRISSUR. R1 – R3 BY GOVERNMENT PLEADER MR./K.V.MANOJ KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.23850/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE COMMON JUDGMENT 17.10.05 IN OP.10276/98 OF THIS HONOURABLE COURT. P2:- COPY OF THE COMMON JUDGMENT 5.3.09 OF THE SUPREME COURT. P3:- COPY OF THE G.O.(MS) 108/08/TD DTD. 26.5.08. P4:- COPY OF THE REQUEST DTD. 9.3.09 SUBMITTED BY THE PETITIONER AND THE OTHER LICENCESS/ THEIR LEGAL HEIRS IN RESPECT OF TODDY SHOPS IN VATANAPPALLY EXCISE RANGE BEFORE THE 3RD RESPONDENT. P5:- COPY OF THE REQUEST DTD. 9.3.09 SUBMITTED BY THE PETITIONER TO REFUND THE EXCESS AMOUNT AND TO RETURN THE TITLE DEEDS OF THE PROPERTIES AND OTHER DOCUMENTS DEPOSITED. P6:- COPY OF THE REQUEST DTD. 9.3.09 SUBMITTED BY THE PETITIONER FOR ADJUSTMENT OF THE AMOUNT AS AGAINST THE BALANCE LIABILITY TOWARDS THE KISTH ARREARS IN RESPECT OF TODDY SHOPS IN VATANAPPALLY RANGE. P7:- COPY OF THE JUDGMENT DTD. 26.6.09 IN WP.C. NO.17359/09 OF THIS HONOURABLE COURT. P8:- COPY OF THE ORDER NO.R6-254/1998 DTD. 7.8.09 ISSUED BY THE 3RD RESPONDENT. P9:- COPY OF THE ORDER NO.R6-314/1998 DTD. 7.8.09 ISSUED BY THE 3RD RESPONDENT. P10:- COPY OF THE STATEMENT SHOWING THE AMOUNT PAYABLE BY THE PETITIONERS IN TERMS OF EXT.P2 JUDGMENT AND EXT.P3 GOVERNMENT ORDER CONCERNING THE VATANAPPALLY EXCISE RANGE. P11:- COPY OF THE STATEMENT OF ACCOUNT SHOWING THE DETAILS. TRUE COPY P.S. TO JUDGE tss THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.23850 of 2009-A = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 23rd day of November, 2009. JUDGMENT 1.The petitioners were licensees of toddy shops for the year 1997-98. They continued as licensees for subsequent years also. Ultimately, by Ext.P2 judgment, the Hon'ble Supreme Court of India laid a decision on the issue as to whether the licences were separate and distinct, year-wise. It was specifically held that the licence for 1997-98 is a unit by itself and the licences for the subsequent years, if at all, could not be treated as a continuation of what was granted in 1997-98. This finding was rendered by the Apex Court holding that after 1997-98, there were no licences granted to the contractors who were parties to Ext.P2 batch of matters. 2.As regards the question of forfeiture of security WPC23850/09 -: 2 :- deposit, the Apex Court held that the question of forfeiture, adjustment etc. from the security deposit is relevant only for the year 1997-98 more particularly because, in none of the cases steps could be taken under Rule 6(28) of the Abkari Shops (Disposal in Auction) Rules as they stood at the relevant time. Following Ext.P2 judgment, the petitioners who are parties to that judgment, moved the Government for orders to settle the transaction and release funds that may be found due. The impugned orders have been issued granting the benefit of the Amnesty Scheme that is in force but, in so far as it related to 1997-98, refusing relief on the ground that the security amount had to be adjusted and forfeited towards the State. Though not specifically stated in the impugned orders, the respondents attempt to support those orders by further stating that they have filed applications for leave to appeal against the orders of acquittal passed by the different criminal courts on charges of adulteration of toddy with Diazepam. WPC23850/09 -: 3 :- 3.With the aforesaid, it needs to be noted that sub-rules 17 and 19 of Rule 5 of the aforesaid Rules provide that the auction purchaser shall be liable to penalties for any of the breach of the conditions and that his estate would also be bound for such liability and still further that the deposits made under Rule 5(10) shall be taken as security for the due performance of the conditions of licence and shall be credited towards kist or amount or instalments unless previously appropriated. The application of rule 6(28) being totally unavailable in the light of Ext.P2 judgment, there could not be recourse to Rule 5(19) of the Rules also since that is not relatable to the breach of any condition of the grant of licence. But sub-rule 19 of Rule 5 deals with the adjustment of security by giving due credit towards unpaid kist. Therefore, the respondents' stand in the impugned order that the security amount for 1997-98 has been appropriated, does not stand. WPC23850/09 -: 4 :- In the result, this writ petition is allowed quashing Exts.P8 and P9 to the extent aforesaid and the respondents will recalculate the amounts due by treating the security deposits furnished by the petitioners as not forfeited for the year 1997-98. The amounts so found due shall be released to the petitioners within 45 days from the date of receipt of a copy of this judgment. This judgment is issued only because the petitioners were parties to Ext.P2 judgment and the anxiety expressed by the learned Government Pleader in this regard does not stand. THOTTATHIL B.RADHAKRISHNAN, JUDGE. Sha/3011