IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 22ND MARCH 2010 / 1ST CHAITHRA 1932 WP(C).No. 37311 of 2009(H) -------------------------- PETITIONER(S): --------------- 1. DINESH,S/O.SURENDRAN, VILAYIL VEEDU, VAVARAMBALAM, POTHENCODE, THIRUVANANTHAPURAM DISTRICT. 2. SUJITH, S/O. SUKUMARAN, KUTTATHUVILA HOUSE, NARAN I DESOM, KUNNATHUKAL VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPRUAM DISTRICT. BY ADV. SRI.M.G.KARTHIKEYAN RESPONDENT(S): --------------- 1. STATE OF EKRALA REP.BY SECRETARY TAXES (A) DEPARTMENT, GOVT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE EXCISE COMMISSIONR, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM. 3. THE DEPUTY COMMISSIONR OF EXCISE, TURUVANANTHAPURAM 4. THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, CHIRAYINKEEZHU THIRUVANANTHAPURAM DISTRICT 5. THE ADDL.COMMISSIONR OF EXCISE, THIRUVANANTHAPURAM. 6. ALISON, PALATHINKAL HOUSE, MARKT P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT. GOVERNMENT PLEADER K..R.DEEPA SRI.P.A.AZIZ FOR R6 SRI.I.G.MANOHARAN FOR R6 SRI.N.N.PANKAJAKSHAN FOR R6 SMT.P.DHANYA FOR R6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 37311 of 2009 APPENDIX EXHIBITS EXT.P1- PHOTOCOPY OF THE AGREEMENT DATED 1.1.09 EXECUTED BETWEEN THE PETITIONERS EXT.P2- PHOTOCOPY OF THE CRIME AND OCCURRENCE REPORT IN CR.NO.13/09 REGISTERED BY THE 4TH RESPONDENT EXT.P3- PHOTOCOPY OF THE MAHAZAR DATED 18.3.09 PREPARED BY THE C.I. OF EXCISE ATTNGAL EXT.P4- PHOTOCOPY OF THE PETITION DATED 21.3.09 SUBMITTED BEFORE THE 3RD RESPONDENT EXT.P5- PHOTOCOPY OF THE TODDY TRANSPORT PERMIT NO.P5-376/09 DATED 19.2.09 ISSUED BY THE DEPUTY COMMISSIONER OF EXCISE, PALAKKAD EXT.P6- PHOTOCOPY OF THE TODDY TRANSPORT PERMIT NO.P5-111/09 DATED 20.1.09 ISSUED BY THE DEPUTY COMMISSIONER OF EXCISE, PALAKKAD EXT.P7- PHOTOCOPY OF THE TODDY TRANSPORT PERMIT NO.P5-110/2009 DATED 20.1.09 ISSUED BY THE DEPUTY COMMISSIONER OF EXCISE, PALAKKAD EXT.P8- PHOTOCOPY OF THE RECEIPT DATED 18.3.09 ISSUED BY MALI AUTO MOBILES, CHIRAYINKEEZHU EXT.P9- PHOTOCOPY OF THE BILL DATED 18.3.09 ISSUED BY CAR AUTOMOBILES, THYCAUD. EXT.P10- PHOTOCOPY OF THE SHOW CAUSE NOTICE DATED 26.5.09 ISSUED BY THE 3RD RESPONDENT EXT.P11- PHOTOCOPY OF THE PETITION DATED 18.12.09 SUBMITTED BEFORE THE 2ND RESPONDENT EXT.P12- PHOTOCOPY OF THE ORDER NO.T6-2120/2009 DATED 31.7.09 PASSED BY THE 3RD RESPONDENT EXT.P13- PHOTOCOPY OF THE APPEAL MEMORANDUM DATED 19.12.09 SENT TO THE 5TH RESPONDENT (TRUE COPY) P.A TO JUDGE ANTONY DOMINIC, J ------------------- W.P.(C).37311/2009 -------------------- Dated this the 22nd day of March, 2010 JUDGMENT 1st petitioner is the registered owner of a vehicle bearing registration No.KL-22/A-1649. 2nd petitioner claims to be the owner in possession. By Ext.P2 crime and occurrence report, C.R.No.13/2009 was registered by the 4th respondent on the allegation that the vehicle was used for carrying excess quantity of toddy. Accordingly, vehicle was seized and a case was registered under Section 55(a) of the Abkari Act (in short 'the Act'). 2. Pursuant thereto, proceedings under Section 67 of the Act were initiated and ultimately the vehicle was ordered to be confiscated by Ext.P12 order passed by the 3rd respondent. Based on Ext.P12, vehicle was auctioned on 10.12.2009 and the 6th respondent herein was the loan bidder who had offered Rs.2,91,000/- and he remitted 50% of the amount offered by him. According to the petitioners, only then they came to know of the proceedings and Ext.P11 request was filed by the 1st petitioner requesting for setting aside the auction. W.P.(C).37311/09 2 3. Thereafter, they filed Ext.P13 appeal under Section 67E of the Act against Ext.P12 before the 5th respondent and the 5th respondent passed an order staying confirmation of the auction in favour of the 6th respondent. It is during the pendency of the appeal, the writ petition is filed challenging the proceedings. 4. Pursuant to the interim order passed by this Court on 23.12.2009, 1st petitioner had deposited Rs.2,91,000/- as per Ext.P16. It would appear that during the pendency of the writ petition, against Ext.P2 crime and occurrence report, petitioners filed Crl.M.C.322/2010 which was disposed of by Ext.P14 order, quashing Ext.P2 and leaving it open to the official respondents to proceed under Section 56(b) of the Act. 5. In this writ petition, petitioners contend that they ought to have been given an opportunity to pay the fine and redeem the vehicle. It is also contended that in view of Ext.P14, there is no case pending to form the basis of which vehicle could be W.P.(C).37311/09 3 confiscated. It is also pointed out that having regard to the pendency of Ext.P13 appeal, before disposing of the appeal, vehicle should not be delivered to the 6th respondent who has only deposited 50% of the auction amount. 6. Heard the learned Government Pleader also. On behalf of the 6th respondent, arguments have been raised asserting the entitlement of the 6th respondent for release of the vehicle to him. 7. Having regarding to the pendency of Ext.P13 appeal filed by the petitioner before the 5th respondent invoking his right under Section 67E of the Act, I do not think it necessary that this Court should go into the merits of the contentions raised by both sides. In my view, in view of the pendency of the appeal and as the appellate authority has passed an interim order staying confirmation of the sale in favour of the 6th respondent, the appellate authority should dispose of the appeal with notice to the parties and till then, further proceedings for delivery of W.P.(C).37311/09 4 the vehicle to the 6th respondent should be kept in abeyance. Therefore the writ petition is disposed of with the following directions. 8. 5th respondent shall dispose of Ext.P13 appeal with notice to the petitioner and the 6th respondent. This shall be done as expeditiously as possible, at any rate, within four weeks of production of a copy of this judgment. It is directed that further proceedings in pursuance to the auction held in favour of the 6th respondent on 10.12.2009 shall await the outcome of the appeal to be disposed of. Petitioner and the 6th respondent may produce a copy of this judgment before the 5th respondent for compliance. ANTONY DOMINIC, Judge mrcs