IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 20TH NOVEMBER 2009 / 29TH KARTHIKA 1931 WP(C).No. 28209 of 2009(U) -------------------------- PETITIONER: --------------- K.T.KURUVILA, AGED 64 YEARS, S/O.K.K.THOMAS, KADICHEENI HOUSE, KAVANAD ROAD, VADAMA VILLAGE, MALA P.O., THRISSUR DISTRICT. BY ADV. SRI.T.RAMPRASAD UNNI SMT.SMITHA GEORGE RESPONDENTS: --------------- 1. THE COMMISSIONER OF EXCISE, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE ASSISTANT EXCISE COMMISSIONER, THRISSUR. 3. THE DISTRICT COLLECTOR, THRISSUR. GOVERNMENT PLEADER, SRI.K.V.MANOJ KUMAR FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/11/2009, THE COURT ON 20/11/2009 DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXTS: EXT.P1: COPY OF THE JUDGMENT DT.26.2.2008 IN W.P.(C) NO.4681/2007 EXT.P2: COPY OF THE ORDER DT.22.2.2008 IN W.A.NO.434/2008. EXT.P3: COPY OF THE AFFIDAVIT DT.21.2.2008 FILED BY THE PETITIONER IN W.A.NO.434/2008. EXT.P4: COPY OF THE ORDER NO.LR.B7-53142/2007 DT.5.12.2007 PASSED BY THE COMMISSIONER OF LAND REVENUE. EXT.P5: COPY OF G.O.(MS)108/08/TD DT.26.5.2008 PASSED BY THE TAXES (G) DEPARTMENT, GOVERNMENT OF KERALA. EXT.P6: COPY OF THE APPLICATION DT.30.7.2008 SUBMITTED BY THE PETITIONER BEFORE THE ASSISTANT EXCISE COMMISSIONER, TRISSUR. EXT.P7: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE COMMISSIONER OF EXCISE, SEEKING THE BENEFIT OF AMNESTY SUGGESTED FOR ABKARI ARREARS. EXT.P8: COPY OF THE JUDGMENT DT.19.3.2009 IN W.P.(C) NO.5555/2009. EXT.P9: COPY OF THE ORDER NO.GO(RT) 485/09/TD DATED 25.5.2009. RESPONDENT'S EXTS: EXT.R1(a): COPY OF THE DEMAND, COLLECTION AND BALANCE STATEMENT IN RESPECT OF THE DUES OF THE PETITIONER. //TRUE COPY// PA TO JUDGE THOTTATHIL B. RADHAKRISHNAN, J. -------------------------------------- W.P.(C) No. 28209 OF 2009 -------------------------------------- Dated this the 20th day of November, 2009 J U D G M E N T ~~~~~~~~~~~~~ The petitioner along with others had bid in the abkari auction for different ranges in 1998. Later, on ground that he was entitled to remission in the matter of payment of kisth, he sought reliefs from different authorities, unsuccessfully. The revenue recovery proceedings were initiated. The petitioner's attempt to have liability apportioned among different persons also turned out to be unsuccessful. Later, the revenue sale of certain properties were cancelled. 2. The petitioner, thereafter, approached this Court by filing W.P.(C) 5229/2008 seeking a direction to the District Collector to allow the facility of payment in instalments. This Court decided that Writ Petition as per judgment dated 15.12.2008. It was noticed that the request of the petitioner was for payment by way of instalments and not to insist on payment at a stretch. Having regard to the fact that the money demanded from the petitioner was abkari dues for W.P.(C) No.28209/2009 2 the year 1980-81 and because the liability to pay the same is no more in dispute, the said Writ Petition was dismissed. It was held that the Government had not been able to realise the dues for 28 years. This Court took the view that the petitioner has successfully evaded payment and that in fact, there were several other Writ Petitions filed by erstwhile partners of the petitioner in the business, in which also no stay was granted. The petitioner carried W.A.No.434/2008 against that judgment. When the Writ Appeal came up on 21.2.2008, the Bench directed the appellant to show his bonafides by filing an affidavit indicating therein, in what manner, he is going to comply with the demand made in the notice. The Bench took up that Writ Appeal on the next day. The petitioner had filed an affidavit, which is extracted in the 2nd page of Ext.P2 judgment delivered in that Writ Appeal on that day. Before quoting that affidavit, the Bench had stated in paragraph 5 of that judgment as follows: “In paragraph 2 of the said affidavit, it is stated that the appellant shall deposit a sum of Rupees fifty lakhs on or before 23 rd February, 2008 and the balance of amount will be deposited by him as may be W.P.(C) No.28209/2009 3 directed by this Court. He has also stated that if for any reason the appellant fails to deposit the amount as agreed upon and as permitted by this Court, the proceedings initiated under Ext.P9 notice may go on.” 3. The Writ Appeal was accordingly ordered directing that the writ petitioner shall deposit a sum of Rupees Fifty lakhs on or before the 23rd February, 2008 and the balance amount shall be deposited on or before the 10th March, 2008. It was also directed that if there was failure to make payment, the distress action could follow. The directions were only to defer the distress action, if the petitioner satisfies the directions at Clauses (iii) and (iv) in paragraph 8 in Ext.P2 judgment. Obviously, the distress action was not quashed. 4. Thereafter, the petitioner moved W.P.(C) No.5555/2009 and obtained Ext.P8 judgment directing the consideration a representation. While considering that representation, the Government issued Ext.P9 order rejecting the request of the W.P.(C) No.28209/2009 4 petitioner for the benefit of Ext.P5 Government order dated 25.5.2008, whereby an Amnesty scheme for one time settlement was introduced by the Government for speedy recovery of Abkari arrears. 5. The plea of the petitioner in this writ Petition is that by the recording of his undertaking in Ext.P2 judgment, the Government stood bound to extend to him the concessions under the Amensty scheme for those periods and his undertaking was, to that extent, conditional. He relies on the last sentence of the 2nd paragraph of his affidavit quoted in Ext.P2 judgment, which states that “this undertaking may be recorded, subject to the concessions offered under the new Abkari policy”. Accordingly, he says that, Ext.P5 Amnesty scheme is part of the Abkari policy and therefore, he should be given the benefit thereof. This plea is controverted by the Government on the ground that only a defaulter, as on the date of Ext.P5 Government Order, that is, 25.5.2008, to avail the benefit of that Amnesty scheme and the petitioner having cleared his dues on 25.5.2008, he was not a defaulter on 26.5.2008, the date of W.P.(C) No.28209/2009 5 commencement of the operation of Ext.P5 Government order and hence the Petitioner is not entitled to the benefit. 6. As already noticed, the petitioner's affidavit dated 21.2.2008 was quoted by the Division Bench. Ext.P2 judgment proceeded by taking specific note of the undertaking by the petitioner regarding the payments that he would make and his statement that if fails to make deposits as agreed, the proceeding initiated could go on. However, this Court, through Ext.P2, never bound or intended to bind the Government, to provide the petitioner with any concession under the new Abkari policy or otherwise. The presence of the sentence, “this undertaking may be recorded, subject to the concessions offered under the new Abkari policy” in the affidavit of the petitioner, which was quoted by the Division Bench of this Court in Ext.P2 judgment, cannot be construed in any manner binding the Government. No principle of estoppel or otherwise applies to the situation. Not only that, there is no direction; in paragraph 8 of Ext.P2 judgment which contains the orders; binding the Government to give the petitioner the benefit of any policy decision or to extend to him W.P.(C) No.28209/2009 6 any concession. 7. Had the petitioner not paid the amount in terms of the undertaking given by him before the Division Bench, his properties would have been sold. He saved his properties from distress action by making payments in terms of the undertaking. 8. As noticed above and also in the 2nd paragraph of Ext.P2 judgment, the case has chequered career. I have also called for and perused the contents of the judgment in W.P.(C) 5229/2008, which was carried in appeal that lead to Ext.P2 judgment. 9. In this context, the learned Government Pleader also made profitable reference to the decision of the Apex Court in N.C.Singhal v. D. General, Armed Forces [AIR 1972 SC 628], to buttress his submission that the executive decision of the Government as contained in Ext.P5 would operate only from the date of issuance of that order and cannot be applied retrospectively. Ext.P5 having been issued after the petitioner had cleared off his W.P.(C) No.28209/2009 7 liability, the petitioner was not a defaulter to be extended the benefit of that Government order, issued as a concession, but with the only object and motive to bring funds into the exchequer from out of the huge abkari arrears that stare at the State. The petitioner is not entitled to the benefit of Ext.P5 Government Order. Ends of justice do not call for any interference. Having regard to the totality of the facts and circumstances of the case, there is no legal or jurisdictional error in the impugned order. The Writ Petition fails and the same is accordingly dismissed. No costs. THOTTATHIL B. RADHAKRISHNAN, Judge ps