IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 23RD SEPTEMBER 2008 / 1ST ASWINA 1930 W.A.No.1780 of 2008 ----------------------------------- AGAINST THE JUDGEMENT IN W.P.(C).108/2007, DATED 16/07/2008 .................... APPELLANTS/RESPONDENTS:- ---------------------------------------------- 1. THE DEPUTY TAHSILDAR (RR), MEENACHIL TALUK, PALA P.O., KOTTAYAM DISTRICT. 2. THE DISTRICT COLLECTOR, KOTTYAM. 3. THE ASST. EXCISE COMMISSIONER, EXCISE DEPARTMENT, IDUKKI AT THODUPUZHA. 4. THE ADDL. SECRETARY/JOINT SECRETARY, TAXES (A) DEPARTMENT, TRIVANDRUM. 5. THE STATE OF KERALA, REP. BY THE SECRETARY, TAXES (A), DEPARTMENT, TRIVANDRUM. 6. THE SECRETARY, EXCISE DEPARTMENT, TRIVANDRUM. BY SENIOR GOVERNMENT PLEADER SMT.K.MEERA RESPONDENTS/PETITIONERS:- ----------------------------------------------- 1. GEORGE JOSEPH, PARAYIL HOUSE, PLASSANAL POST, KOTTAYAM DISTRICT. 2. THOMAS JOSEPH, PARAYIL HOUSE, PLASSANAL POST, KOTTAYAM DISTRICT. BY ADV.SRI.JOHNSON MANAYANI THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- H.L.Dattu, C.J. & A.K.Basheer, J. ---------------------------------------------- W.A.No.1780 of 2008 ---------------------------------------------- Dated, this the 23rd September, 2008 JUDGMENT H.L.Dattu, C.J. State has filed this Writ Appeal, being aggrieved by the orders passed by the learned Single Judge in W.P.(C).No.108 of 2007, dated 16.07.2008. (2) The respondents herein had approached this Court, inter alia, calling in question the recovery notices issued to realise the abkari dues for the Excise Year 1993-1994. (3) This Court, while entertaining the writ petition, had granted an interim order of stay, staying the recovery proceedings for realisation of abkari dues, subject to the petitioners depositing a sum of Rupees Seven Lakhs. The Court had also observed, while passing that interim order, that, an appropriate order will be passed by the Court while disposing of the writ petition indicating how the deposit, that may be made by the petitioners pursuant to the interim orders, will be adjusted by the Excise Department. (4) Pursuant to the interim orders passed by this Court, the petitioners have deposited Rupees Seven Lakhs. (5) Now, the learned Single Judge has disposed of the writ petition, taking into consideration the amnesty scheme that is floated by the W.A.No.1780/2008. - 2 - State Government. The learned Single Judge has directed the respondents/Excise authorities to adjust the sum of Rupees Seven Lakhs that was deposited by the petitioners towards the principal amount and issue necessary notice for payment of balance amount, if any. (6) Being aggrieved by the observations and directions issued by the learned Single Judge, the State is before us in this appeal. (7) Smt.K.Meera, learned counsel appearing for the appellants/State would submit, that, in view of Rule 6(25) of the Kerala Abkari Shops (Disposal in Auction) Rules, the amount deposited by the abkari contractors should be first adjusted towards interest and, thereafter, towards the principal amount, if any. The learned Government Advocate also supports her thinking by referring to the decision of this Court, reported in the case of Joseph v. State of Kerala [2000 (3) KLT 377]. (8) Sri.Johnson Manayani, learned counsel appearing for the respondents/writ petitioners sought to justify the impugned order. (9) It is not in dispute, that, the writ petitioners were defaulters in paying abkari dues for the Excise Year 1993-1994. The Excise authorities had initiated proceedings to recover the amounts due from the petitioners by initiating proceedings under the Revenue Recovery Act. The action of the Excise authorities was called in question by the petitioners before this Court in W.P.(C).No.108 of 2007. This Court, while entertaining the writ petition, had granted an interim order, subject to the petitioners depositing a sum of Rupees W.A.No.1780/2008. - 3 - Seven Lakhs and, further, had observed that the appropriate orders will be passed indicating how to adjust the amount that may be deposited by the petitioners at the time of disposal of the writ petition. (10) Now, the writ petition has been disposed of by the learned Single Judge. The learned Single Judge has directed the authorities to adjust the amounts deposited by the petitioners, pursuant to the interim orders passed in the writ petition, firstly towards the principal amount and, thereafter, to issue necessary notice for payment of balance amount, if any, due by the petitioners. In our view, this direction of the learned Single Judge is contrary to the statutory provisions and also the observations made by a Division Bench of this Court in Joseph's case (supra). In that view of the matter, we cannot sustain the orders passed by the learned Single Judge. (11) We are informed by the learned counsel appearing for the contesting respondents that the respondents have already filed an application for the benefit under the amnesty scheme in terms of the directions issued by the learned Single Judge. (12) The learned Government Advocate, on instructions, would submit that the application so filed by the petitioners will be entertained and the same would be considered in accordance with the conditions stipulated in the amnesty scheme. The learned Government Advocate also states that the application will be processed and, thereafter, an appropriate notice will be issued to the applicants. Therefore, according to the learned Government W.A.No.1780/2008. - 4 - Advocate, the contesting respondents/writ petitioners will get at least a month's time for depositing whatever amount that may be demanded by the appellant authorities. (13) In the above view of the matter, we pass the following: Order (i) The Writ Appeal is allowed. (ii) The impugned order passed by the learned Single Judge is set aside. (iii) The contesting respondents/writ petitioners are permitted to make a fresh application if they so desire, for the benefit under the amnesty scheme, on or before 30th September, 2008. (iv) If such an application is filed, the appellants will consider the same in accordance with law and in accordance with the terms of the amnesty scheme, untrammelled by he observations made by the learned Single Judge while disposing of the writ petition. Ordered accordingly. H.L.Dattu Chief Justice A.K.Basheer vku/dk Judge