IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 26TH OCTOBER 2009 / 4TH KARTHIKA 1931 WA.No. 1005 of 2008() --------------------- AGAINST THE JUDGEMENT IN OP.3690/2001 .................... APPELLANT(S): RESPONDENTS ------------------------- 1. STATE OF KERALA, REP.BY SECRETARY TO GOVERNMENT, EXCISE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE EXCISE COMMISSIONER, THIRUVANANTHAPURAM. 3. THE ASSISTANT EXCISE COMMISSIONER, KANNUR. BY SR. GOVERNMENT PLEADER SRI.NOBLE MATHEW RESPONDENT(S): PETITIONERS -------------------------- 1. V.K.SREEDHARAN, S/O.KELAN, DEVI BHAVAN, RESIDING AT DEVI BHAVAN, THALIKKAVU, KANNUR DIST. 2. C.K.RAMACHANDRAN, S/O.RAMUNNY, RESIDING AT TALAP, KANNUR DISTRICT. 3. C.C.JAYARAM, S/O.DAMODARAN, RESIDING AT TALAP, KANNUR DISTRICT. ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE FOR R1 TO 3 SRI.MILLU DANDAPANI THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 26/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. Q.BARKATH ALI, JJ. ------------------------------ W.A.NO.1005 of 2008 ------------------------------ Dated this, the 26th day of October, 2009 JUDGMENT Balakrishnan Nair, J. The respondents in the Original Petition are the appellants. 2. The brief facts of the case are the following: The respondents/petitioners were in default to the State concerning abkari dues. They were the licensees of arrack shops in Kannur and Pappinisseri Excise Ranges during the year 1984-85. When the State took steps to recover the amount due from them, they filed O.P.No.7787/1991 before this Court. Finally, the said O.P. was dismissed on 6.6.1997. Thereafter they moved the Government, obtained instalment facility and paid 50% of the amount on 15.12.1997. The balance amount was paid in instalments and by 17.11.1998, they cleared the entire arrears. 3. While so, in the year 2000, the Government amended the Kerala Abkari Shops (Disposal in Auction) Rules, 1974, by WA 1005/08 2 introducing sub-rule 25A to Rule 6 of the said Rules. The said sub-rule provided that those who are in default to the Government in relation to payment of rentals, taxes, duties etc., will be permitted to pay the amount by waiving 75% of the interest accrued on that amount. It was also provided that the maximum interest that could be collected shall not exceed the principal amount. That means, the interest shall not exceed 100%. The amount has to be paid before 31.8.2000. The respondents/petitioners approached this Court, by filing the Original Petition, claiming the benefit of that Rule and praying refund of the excess amount paid by them. The Original Petition was preceded by a motion before the Excise Commissioner for refund of the excess amount paid by them. The said motion was dismissed by Ext.P12 order. So, in the Original Petition they challenged Ext.P12 also. 4. The appellants filed a counter affidavit resisting the prayers in the writ petition. According to them, the amendment introduced in the Rule was meant for those persons who continued to be defaulters even at the time of issuance of the WA 1005/08 3 notification amending the Rules. The learned Single Judge after hearing both sides, allowed the writ petition. The learned Single Judge took the view that sub-rule 25A was introduced having regard to the state of affairs on 31-3-1997. The respondents paid the amount only on 4-4-1998 i.e., after the cut off date on 31-3- 1997. Therefore, it was held that the respondents were entitled to get the benefit of sub-rule 25A of Rule 6. The appellants challenge the said finding of the learned Single Judge. 5. We heard Sri. Noble Mathew, learned Senior Government Pleader appearing for the appellants and Sri.K.P.Dandapani, learned Senior Advocate appearing for the respondents. 6. Going by sub-rule 25A (i), it is not clear whehter the benefit of the Rule is available to those who have already cleared their arrears between 31-3-1997 and 3-6-2000, the date on which the amendment was introduced. But reading of clauses (ii) and (iii) would make it clear that the Rule is meant to benefit only those persons who remained as defaulters as on 3-6-2000. WA 1005/08 4 There is nothing in the Rule to show that it is introduced for the benefit of the persons who have already cleared arrears. If that was the intention, there would have been specific provisions for filing application for refund and its processing. The amendment was introduced in the Rule to augment collection of abkari arrears. But, that could not be interpreted to mean that it is a Rule for refund of abkari arrears already collected. So, we find it difficult to agree with the view taken by the learned Single Judge, which is not in tune with the intention of the amendment. 7. In the result, the writ appeal is allowed. The judgment under appeal is reversed and the writ petition is dismissed. K. Balakrishnan Nair, Judge. P. Q. Barkath Ali, Judge. nkm.