IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 WP(C).No. 10740 of 2008(C) -------------------------------------- PETITIONER(S): ---------------------- T.M. MOHANAN, AGED 49 YEARS, S/O.MANICKAN (LATE), THEKKOOTTUVALUPARAMBIL, CHELOOR, IRINJALAKKUDA, THRISSUR DISTRICT. BY ADV. MR.M.G.KARTHIKEYAN RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY, TAXES (A) DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE EXCISE COMMISSIONER, THIRUVANANTHAPURAM. 3. THE ASSISTANT EXCISE COMMISSIONER, THRISSUR. 4. THE CIRCLE INSPECTOR OF EXCISE, VATANAPPALLY, THRISSUR DISTRICT. 5. THE DISTRICT COLLECTOR, THRISSUR. 6. N.S. SAJEEVAN, S/O.SREENIVASAN, NEDUMPARAMBIL HOUSE, MALA, PALLIPPURAM, THRISSUR DISTRICT. 7. THE WELFARE FUND INSPECTOR-II, KERALA TODDY WORKERS WELFARE FUND BOARD, THRISSUR. R1 TO R5 BY GOVERNMENT PLEADER SMT.K.R DEEPA R6 BY ADV. MR.S.SREEKUMAR R7 BY ADV. MR.RENIL ANTO THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 10740/2008-C APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PETITION DATED 28/03/2008 SUBMITTED TO THE 2ND RESPONDENT. EXT.P2: COPY OF THE INTERIM ORDER DATED 24/03/2008 IN W.P.(C). NO. 9574/2008 OF THIS HONOURABLE COURT. EXT.P3: COPY OF THE ORDER NO.R5-5149/2007 PASSED BY THE 5TH RESPONDENT. EXT.P4 TO P7: NIL EXT.P8: COPY OF THE RELEVANT PAGES OF THE REGISTER OF RENEWAL OF 95 TODDY SHOPS IN INRINJALAKKUDA EXCISE RANGE FOR THE YEARS 2005-06. EXT.P9: COPY OF THE RELEVANT PAGES OF THE REGISTER OF RENEWAL OF 95 TODDY SHOPS IN IRINJALAKKUDA EXCISE RANGE FOR THE YEARS 2006-07. RESPONDENT'S EXHIBITS: EXT.R3(a): COPY OF THE ARREARS LIST PREPARED BY CIRCLE INSPECTOR OF EXCISE, IRINJALAKKUDA FOR THE YEAR 2002-03 TO 2006-07. EXT.R3(b): COPY OF THE APPLICATION DATED NIL FROM THE PETITIONER. EXT.R3(c): COPY OF THE SALE NOTICE. EXT.R3(d): COPY OF THE DEMAND NOTICE DATED 03/01/2008 ISSUED BY CIRCLE INSPECTOR OF EXCISE, IRINJALAKKUDA TO THE PETITIONER. //TRUE COPY// P.S. TO JUDGE Rs/ THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.10740 of 2008-C = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 9th day of June, 2009. JUDGMENT 1.In the Thrissur district, samithies were permitted to conduct toddy shops in two ranges. The petitioner states that he was a member of such samathi and that the samithies are exempted from payment of tree tax and that he has not conducted any abkari shop otherwise than as a member of a samithi. He accordingly states that it was illegal on the part of the State to have treated him as a defaulter on tree tax and in having denied him the privilege in terms of the Abkari Policy for the year 2008-2009. That abkari year has already ended. 2.The question now is as to whether the petitioner should be continued to be treated as a defaulter to exclude him from the opportunity to WP(C)10740/2008 -: 2 :- participate and to be considered for allotment of shop in the Abkari year 2009-2010. If there is no arrear of tree tax, the petitioner is entitled to participate. There is nothing on record demonstrating that the petitioner is liable to pay tree tax either on account of his having had any individual transaction or group transaction. The allegation of the petitioner that he was party only to samithies in Thrissur, therefore, prima facie, stands. Accordingly, it is ordered that the petitioner would not be treated as a defaulter for the purpose of the ensuing auction for the abkari year 2009-2010. 3.The petitioner has also a claim that he be refunded the amount which has been forfeited as per Ext.P4. This is an issue that the petitioner can raise before the Excise Commissioner on appropriate representation and if it is found that he had no individual liability and was party only to samithies which were exempted from payment of tree tax, the forfeiture order would be considered WP(C)10740/2008 -: 3 :- for release of funds. Any request of the petitioner in that regard will be considered and disposed of within three months from the date of receipt of a copy of this judgment and a representation requesting for such refund. The writ petition is ordered accordingly. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/110609