IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 OP.No. 2366 of 2003(F) -------------------------------- PETITIONER: ------------------- SRI.M.SUNDERESAN, PAIVILLA VEEDU, CHERUKULAM P.O., ANCHAL. BY ADV.SRI.E.K.NANDAKUMAR, SRI.A.K.JAYASANKAR NAMBIAR, SMT.PRIYA MAHESH, SMT.PRIYA MANJOORAN. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, TRIVANDRUM. 2. COMMISSIONER OF EXCISE, COMMISSIONERATE OF EXCISE, TRIVANDRUM. 3. THE TAHASILDAR, KOTTARAKKARA. BY GOVERNMENT PLEADER SRI. TEKCHAND. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 19/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P. NO. 4166/2003 IN O.P. NO. 2366/2003-F DISMISSED 19/03/2008. SD/- P.R.RAMAN, JUDGE. APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE DEMAND NOTICE SERVED ON THE PETITIONER. EXT.P.2: COPY OF THE SALE NOTICE DTD. 21/12/2002, OF THE R.3. TO THE PETITIONER. EXT.P.3: COPY OF THE REPRESENTATION TO THE R.3. BY THE PETITIONER. EXT.P.3A: COPY OF THE ACKNOWLEDGEMENT CARD EVIDENCING THE RECEIPT OF THE REPRESENTATION BY THE R.3. RESPONDENT'S EXHIBITS: EXT.R2.A: COPY OF THE DEMAND NOTICE DTD. 01/09/98 OF THE ASST. EXCISE COMMISSIONER, PALAKKAD FOR RS. 1,39,200/-. EXT.R2.B: COPY OF THE OF THE REQUISITION IN FORM 24 DTD. 25/11/99 OF THE ASST. EXCISE COMMISSIONER, PALAKKAD FOR RS.1,39,200/-. EXT.R2.C: COPY OF THE DEMAND NOTICE DTD. 25/11/99 OF THE ASST. EXCISE COMMISSIONER, PALAKKAD FOR RS. 3,600/-. EXT.R2.D: COPY OF THE REQUISITION IN FORM 24 DTD. 06/01/2000 OF THE ASST. EXCISE COMMISSIONER, PALAKKAD FOR RS. 3,600/-. //TRUE COPY// prv. P.R.RAMAN, J. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ O.P.No.2366 of 2003-F ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 19th day of March, 2008 J U D G M E N T The petitioner is a licensee for the running of a toddy shop at Chathayamangalam during the year 1998-99. The petitioner is aggrieved by Ext.P1 demand for an amount of Rs.1,39,200/- being arrears of Inter District Toddy Transport Permit fees. According to the petitioner, he has paid all legal dues under the Abkari Act and Rules and, as such, he is not liable to pay any amount as demanded in Ext.P1. According to the petitioner, he has sought for clarification but nothing is produced in support thereof. Since the petitioner did not pay the amount as per Ext.P1, Ext.P2 was issued informing that his property was being sold for realisation of the amount demanded in Ext.P1. Subsequently, the petitioner preferred Ext.P3 representation. According to him, it was not replied and he apprehends that the respondents would sell the property. It was at that time that the petitioner has approached this Court. O.P.No.2366/2003-F -: 2 :- 2. In the counter affidavit filed by the Joint Excise Commissioner, it is averred that the petitioner has taken out an Inter District Toddy Transport Permit from Chittur Range to Chathayamangalam Range as detailed in the affidavit. In the counter affidavit he has given the permit number and date, number of trees tapped, quantity of toddy transported per day, amount due by way of fee, amount remitted and the balance amount. As per the counter affidavit, imposition of fee at the rate of Re.1/- per bulk litres of toddy per permit per day was introduced as per G.O.(P) No.71/96/TD, dated 29/03/1996. But, that notification was challenged before this Court by filing original petitions and writ appeals. Interim order of stay granted in those petitions/appeals was not enforced and after the cases were decided in favour of the State, they sought to recover the amount of Rs.1,39,200/- from the petitioner. Ext.R2(a) produced is a notice addressed to the petitioner wherein it is stated that he has taken a transport permit on 16/11/1996 and towards the balance fee due on I.D.T Rs.1,39,200/- is due. Ext.R2(a) is dated 16/02/1998. Ext.R2(b) is another notice from the Excise Division which is a requisition issued under Section 69(2) of the Revenue Recovery Act for O.P.No.2366/2003-F -: 3 :- recovery of Rs.1,39,200/-. Ext.R2(c) is yet another intimation given to the petitioner demanding an amount of Rs.3,600/- towards the arrears of balance fee. All the details are furnished in said notice also. Ext.R2(d) is another requisition made for recovery of the said amount covered by Ext.R2(c). It is averred in the counter affidavit that all these notices were duly served on the petitioner. It has not been denied by filing any reply affidavit. Further, atleast when details are furnished in the counter affidavit nothing prevented the petitioner from disputing the correctness of the averments by filing reply affidavit even if he has not received any such notice earlier if there is any factual dispute regarding the amount payable. The amount payable is as per the notification which was the subject of challenge before this Court, admittedly, which was upheld, and so no relief can be granted to the petitioner, invoking the discretionary power under Article 226 of the Constitution of India. But, considering the fact that the original petition was pending before this Court all these years and there was a stay, it is only appropriate that if the petitioner pays the demanded amount of Rs.1,39,200/- in three equal monthly instalments, there shall be no further proceedings pursuant to Ext.P2. The stay granted by this O.P.No.2366/2003-F -: 4 :- Court will be kept in abeyance so as to enable the petitioner to comply with this order. The first instalment shall be paid on or before 19/04/2008 and thereafter, on the 19th of the succeeding months. In case of failure to pay any one of the instalments as aforesaid, the petitioner will lose the benefit of this order and it will be open to the respondents to proceed in accordance with law. The original petition is disposed of as above. P.R.RAMAN, Judge ms O.P.No.2366/2003-F -: 5 :- P.R.RAMAN, J. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ O.P.No.2366 of 2003-F ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ J U D G M E N T 19th March, 2008