IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 WP(C).No. 6824 of 2009(W) --------------------------------------- PETITIONER(S): -------------------------- 1. GOPACHANDRAN NAIR, ONATU HOUSE, PERIYAPURAM.P.O, PAMPAKUDA VIA, ERNAKULAM DISTRICT. 2. GEORGE KOCHUPARAMBIL ALIAS ANISH, KOCHUPARAMBIL HOUSE, VAZHITHALA.P.O, THODUPUZHA. BY ADV. MR.RAJU JOSEPH RESPONDENT(S): ---------------------------- 1. THE COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. 2. THE ASSISTANT EXCISE COMMISSIONER, EXCISE DIVISION OFFICE, KASARAGOD. R1 & R2 BY GOVERNMENT PLEADER MR.V. MANU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.6824/2009 W APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER OF THE SECRETARY BOARD OF REVENUE (EXCISE), THIRUVANANTHAPURAM DTD. 16/10/1992. P2: COPY OF THE STATEMENT ISSUED BY THE 2ND RESPONDENT DTD. 05/08/2005. P3: COPY OF THE ORDER G.O.(MS) 108/08/TD DTD. 26/05/2008. P4: COPY OF THE NOTICE DTD. 03/06/2008. P5: COPY OF THE APPLICATION DTD. 26/06/08. P6: COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DTD.23/07/2008. P7: COPY OF THE ORDER OF THE 1ST RESPONDENT NO.XM3-19634/93 DTD. 22/02/2000 IS RESPECT OF KOTTAYAM EXCISE RANGE. P8: COPY OF THE JUDGMENT IN WPC.NO.23521/2008 DTD. 07/08/2008. P9: COPY OF THE REPRESENTATION DTD. 13/08/2008. P10: COPY OF THE LETTER DTD. 16/02/2008 ISSUED BY THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOTTATHIL B. RADHAKRISHNAN, J ........................................... WP(C).NO. 6824 OF 2009 ............................................ DATED THIS THE 17TH DAY OF SEPTEMBER, 2009 JUDGMENT The petitioners' grand father, George K George was an Abkari licencee for the abkari year 1989-1990. Three months after commencement of that licence period, the shop was taken over for departmental management. Going by Ext.P1, an amount of Rs.24,24,520/- was collected by way of departmental management fee. By virtue of Rule 13, the amount collected as departmental management fee could be given credit towards the dues of original contractor provided the security has been completed. The collected amount washed off the security deficit George K George applied to the Board of Revenue for adjustment and credit. That was granted on 16.10.1992. That order states that the licencee had submitted a representation requesting orders to adjust the amount. It also noticed that the shops were placed under departmental management and an amount of Rs.24,24,520/- was collected for the period ending 31.3.1990. The accrued amount recommended for revenue recovery action Wpc 6824/2009 2 as on 31.3.1990 was Rs.49,15,511/-. The Board of Revenue, taking into consideration the recommendation of the Assistant Excise Commissioner Kozhikode, granted the request and accorded sanction to adjust the amount of Rs.24,24,520/- collected by way of departmental management fee from 1.11.1989 to 31.3.1990, towards the dues to the licencee for that period. 2. The petitioners are aggrieved by the fact that in giving effect to Ext.P1, subordinate officials have reckoned the accounts with reference to 16.10.1992, the date of Ext.P1. The statutory provisions contained in Rule 13 of the departmental management Rules enjoin adjustment on satisfaction of certain conditions. Therefore a fair application of those rules has to be made by taking that on satisfaction of the conditions prescribed for the application of a rule relating to adjustment, the entitlement to such adjustment starts to operate. Therefore, when it is the admitted situation that on 31.3.1990, an amount of Rs.24,24,520/- was available for adjustment in terms of Rule 13 of DM Rules, I am unable to read Ext.P1 decision of the Board of Revenue as providing any condition for such adjustment being Wpc 6824/2009 3 made only from the date on which Ext.P1 order is issued. Firstly, Ext.P1 order does not expressly state anything to that effect. Secondly, if it were so, it cannot be an unintelligible yardstick in as much as the rationale to fix a cut off date for any purpose, including accounting, cannot be made depending on the date on which the order is issued unless, of course, the order is a purely discretionary one. Learned Government Pleader is right in pointing out that the application of the petitioner was on 24.9.1992 and Board of Revenue has issued orders within the shortest possible time. But that in no way improves the entitlement of the revenue to make adjustment only from 16.10.1992 because the principle of fairness stand to instruct that adjustment was due as on 31.3.1990 and that would flow subject to the satisfaction of the conditions enumerated in Rule 13. May be a decision in that regard is to be triggered by the making of an application. There is no issue of any grant involved in the matter. It is only relatable to the settlement of accounts on funds collected. For the aforesaid reasons, this writ petition is ordered directing that the impugned orders will stand modified and the Wpc 6824/2009 4 departmental authorities will refix the total outstandings due from the estate of George K George making the adjustment of Rs.24,24,520/- as on 31.3.1990. Writ petition ordered accordingly. No costs. THOTTATHIL B RADHAKRISHNAN, JUDGE lgk/18/9