IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 23RD JULY 2008 / 1ST SRAVANA 1930 WP(C).No. 27830 of 2007(K) -------------------------- PETITIONER: -------------- C.K.BALAN, CHATTIYATTIL HOUSE, LOKAMALESWARAM VILLAGE, KODUNGALLOR TALUK, THRISSUR DIST. BY ADV. SRI.M.P.ASHOK KUMAR RESPONDENTS: ----------------- 1. THE ASSISTANT EXCISE COMMISSIONER, PALAKKAD. 2. DEPUTY THASILDAR (REVENUE RECOVERY), KODUNGALLUR, THRISSUR DIST. 3. COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SMT.K.R.DEEPAFOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.27830/07 APPENDIX PETITIONER'S EXHIBITS EXT.P1: THE PHOTOCOPY OF THE APPLICATION DATED 16.11.1996. EXT.P2: THE PHOTOCOPY OF THE REVENUE RECOVERY NOTICE DT 5.1.1999. EXT.P3: THE PHOTOCOPY OF THE ORDER DT 18.10.99. EXT.P4: THE PHOTOCOPY OF the ORDER DT 27.3.2001 PASSED BY THE 3RD RESPONDENT. EXT.P5: THE PHOTOCOPY OF THE ORDER DT 3.5.2001 PASSED BY THE 3RD RESPONDENT. EXT.P6: THE PHTOCOPY OF the COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT IN OP 16502/01. EXT.P7: THE PHOTOCOPY OF THE JUDGMENT IN OP 16502/01. EXT.P8: THE PHOTOCOPY OF THE JUDGMENT IN WA 605/97. EXT.P9: THE PHOTOCOPY OF the JUDGMNT IN WA 1921/05. EXT.P10: THE PHOTOCOPY OFHTE PERMIT NO.1/1D/11/H.Y./96-97/1A DT 3.10.96. EXT.P11: THE PHOTOCOPY of the PERMIT NO.122/96-97-/1D/11 DT 9.10.1996. EXT.P12: THE PHOTOCOPY OF THE REVENUE RECOVERY NOTICE DT 4.4.2007. EXT.P13: THE PHOTOCOPY OF THE JUDGMENT IN RP NO.117/97. EXT.P14: THE PHOTOCOPY OF THE NOTICE DT 16.2.1998 ISSUED BY THE 1ST RSPONDENT. EXT.P15: THE PHOTOCOPY OF THE PERMIT NO.P5-1906/96 DT 3.4.1996. EXT.P16: THE PHOTOCOPY OF THE PERMIT NO.P5-1906/96(1) DT 3.4.1996. EXT.P17: THE PHOTOCOPY OF THE PERMITS NO.P5-1906/96(2) DT 3.4.1996. WPC NO.27830/07 -2- EXT.P18: THE PHOTOCOPY OF the PERMITS NO.P5-1906/96(3) DT 9.4.1996. EXT.P19: THE PHOTOCOPY OF THE PERMIT NO.146/96-97/1D/11/H.Y DT 18.10.1996. EXTS. OF R1 EXT.R1(a): TRUE COPY DEMAND COLLECTION AND BALANCE STATEMENT T.S.NOS. 1 TO 86/96-97, KODUNGALLUR RANGE. //TRUE COPY// P.A. TO JUDGE ANTONY DOMINIC, J. =============== W.P.(C) NO. 27830 OF 2007 K ==================== Dated this the 23rd day of July, 2008 J U D G M E N T The prayer sought in this writ petition is to quash Ext.P12, a notice issued calling upon the petitioner to remit arrears of Rs.30,49,002/- along with interest of Rs.13,14,225/-. Briefly stated, the petitioner. was the licencee of toddy shops in Kodungalloor Excise Range during the years 1994-97. On account of shortage of toddy in the Trichur District , he was granted several permits and in so far as this writ petition is concerned, the permits which are relevant are Exts. P10 and P11. 2. According to the petitioner, during the currency of the licence, he had submitted Ext.P1 application for cancellation of the licence, but however without passing orders thereon Ext.P2 recovery notice was issued demanding payment of Rs.10,07,400/- from him. That was challenged before this court in an original petition filed by him and that case was disposed of relegating the petitioner to pursue the statutory remedy of appeal before the departmental authorities. 3. Against Ext.P3, petitioner filed an appeal before the Government and that was rejected by Ext.P4. A review of Ext.P4 WPC 27830/07 :2 : attempted by the petitioner was also rejected by Ext.P5. Thereupon, the petitioner approached this court by filing OP No.16502/01 challenging the demand against him as confirmed by the appellate authorities. In that Original petition, Ext.P6 counter affidavit was filed indicating the liability of the petitioner. However, that OP was dismissed by Ext.P7 judgment following Ext.P8 judgment of the Division Bench in WA 605/97. Against Ext.P7, petitioner filed writ appeal No.1921/05 and that was dismissed by Ext.P9 judgment. Thereafter he sought review of Ext.P9 by filing RP 117/07 and the review was considered and by Ext.P13 order, the same was dismissed. However, dealing with the contention of the petitioner that by Ext.P12 demand issued for realisation of the dues from him, more amount than what was mentioned in Ext.P2 was sought to be recovered, the Division Bench held that the remedy of the petitioner is to challenge the fresh demand as not in accordance with the earlier demand, which was confirmed by this court in Exts. P7 and P9. It is thereupon that this writ petition is filed. 4. Counsel for the petitioner contends that now liability that is now sought to be enforced against the petitioner is as indicated in Annexure R1(a), which is enclosed to the statement filed by the 1st respondent in this case. In Annexure R1(a), in so far as Ext.P10 permit is WPC 27830/07 :3 : concerned, his liability is indicated as Rs.2,70,000/-. It is stated that this quantification is on the basis that the permit authorised him to transport 1500 litres toddy for 180 days. Similarly, counsel points out that in so far as Ext.P11 permit is concerned, the liability indicated is Rs.3,65,400/- on the basis that the permit authorised him to transport 2100 litres of toddy for 174 days. 5. Referring to Ext.P10, it is submitted that the said permit was issued only on 3/10/96 and that it was valid only till 31/10/96, authorising the petitioner to transport 1500 litres on each of those days. Counsel submits that while in Annexure R1(a) it is mentioned that the permit authorised him to transport toddy on 180 days, in effect the permit only authorised him to transport toddy during the period 3/10/96 to 31/10/96 that is 28 days. Similarly, in so far as Ext.P11 permit is concerned, it is stated that the permit was issued on 9/10/96 and was valid only till 31/10/96. As against this, counsel points out that in Annexure R1(a), it is stated that the petitioner was authorised to transport toddy for 174 days. These permits, it is submitted were issued in terms of Section 11 of the Abkari Act, which interalia provides that such permits shall be either general or for definite periods. 6. Though a statement has been filed by the 1st respondent as WPC 27830/07 :4 : stated above, there is absolutely no explanation forthcoming nor is the contradiction in the number of days indicated in Exts. P10 and P11 on the one side and Annexure R1(a) on the other explained in any manner. Going by Exts. P10 and P11, I should accept the plea of the learned counsel for the petitioner that the authorisation was confined to 28 days and 22 days alone. However, the learned Government Pleader has made available before me the register of Inter District Permits maintained by the respondents during the year 1996-97. In so far as Ext.P10 is concerned, it is mentioned in the said register that pursuant to the order passed by this court, in CMP 28733/96 in OP No.16083/96, the validity of the permit was extended upto 31/3/97. Similarly, in so far as Ext.P11 is concerned, it is mentioned in the register that pursuant to the order in CMP No.29611/1996 in OP 16511/96, the validity of the permit was extended upto 31/3/97. The learned Government Pleader has also made available before me the interim order in OP 16083/96 from which it is seen that the petitioner herein was the 5th petitioner and this court passed an order dated 14th of October 1996 directing the Assistant Excise Commissioner, Palakkad to issue toddy transport permit to the petitioner for the period upto 31/3/1997 without insisting on additional tax. It is stated that similar order was passed in so far as OP 16083/96, in which again the petitioner WPC 27830/07 :5 : was the 5th petitioner. It is now seen that by a common judgment rendered on 19th of March, 1997, a batch of original petitions including the aforesaid two original petitions were dismissed by this court. 7. From the facts as noticed above, it is therefore clear that though the original period of Exts. P10 and P11 permits was 28 days and 22 days respectively as contended by the petitioner, pursuant to the interim orders passed by this court in Original petitions filed by the contractors including the petitioner, the period of the permits were extended till 31/3/97 and this fact has not been disclosed by the petitioner. If that be so, the quantification done by the respondents in Annexure R1 (a), the details of which has been extracted in the earlier part of this judgment cannot be said to be incorrect for any reason. Therefore, the proceedings impugned in this writ petition are liable to be upheld and I do so. The writ petition merits only to be dismissed and I do so. ANTONY DOMINIC, JUDGE Rp