IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.06.2010 C O R A M THE HONOURABLE MRS.JUSTICE R. BANUMATHI AND THE HONOURABLE MR.JUSTICE B.RAJENDRAN Writ Appeal No.1396 of 2000 and CMP.No.7926 of 2001 1.The Taluk Excise Officer, Tiruchirappalli. 2.The District Collector, Tiruchirappalli. 3.The State of Tamil Nadu rep. by the Commissioner and Secretary to Government, Prohibition and Excise Department, Fort St.George, Madras-9. ..Appellants Vs S.U.A.Lathief ..Respondent Writ Appeal filed under Clause 15 of Letters Patent against the order dated 23.04.1998 made in W.P.No.8343 of 1989. W.P.No.8343 of 1989: Petition under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus, calling for the records of the respondents in Proceedings No.Na.Ka.B/767/83 dated 22.03.1989 on the file of the second respondent and quash the same as illegal arbitrary, and against all principles of natural justice and to direct the respondents to refund a sum of Rs.1,21,051/- owing to the petitioner by way of kist amount. For Appellants:- Mr.M.Dhandapani Special Govt.Pleader For Respondent:- Mr.V.Ayyadurai https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T (Judgment of the court was made by B.RAJENDRAN, J.) The Government has preferred the Writ Appeal challenging the order of the single Judge dated 23.04.1998 made in W.P.No.8343 of 1989. 2. The prayer in the writ petition was for certiorarified mandamus to quash the order dated 22.03.1989 in proceedings No.Na.Ka.P.767/83 of the second respondent. It is stated that the respondent in the writ appeal/writ petitioner originally participated in an auction for vending arrack on 20.06.1983 and one Palanivelu became a successful bidder and he offered for a higher rate, however, pursuant to the request of the writ petitioner/respondent herein, a re-auction was ordered on 02.07.1983, in which, the writ petitioner agreed to pay a Kist of Rs.30,150/- per month and became a successful bidder, which was confirmed on 13.07.1983. The writ petitioner also paid three months Kist on 04.08.1983 as contemplated under the Rule 17(1) of Tamil Nadu Toddy and Arrack Shop (Discipline Auction), Rules 1981. But, thereafter, he could not identify a correct place so as to conduct the business. The department once again called for re- auction on 16.09.1983, which was challenged by the writ petitioner erstwhile in W.P.No.8267 of 1983 and this Court by order dated 25.10.1983, granted stay in WPMP.No.12673 of 1983 on condition that the petitioner should identify a proper place for getting license on or before 07.11.1983. After identifying a place in S.F.No.28, Block No.29 of Ward 'D' of Thiruchirappalli Municipality, the writ petitioner applied on 7.11.1983 for a license. Pursuant to this, the department gave the license on 13.01.1984. But immediately thereafter, a 3rd party filed a suit in O.S.No.137 of 1984 and obtained interim injunction restraining him from continuing the business in I.A.59 of 1984 and aggrieved against the same, as he could not conduct the business, the petitioner would contend that he surrendered the license as early as on 23.01.1984. No further re- auction was called for. But on 31.01.1984, the Government issued a demand notice dated 25.01.1984 and the same was served on the petitioner on 16.02.1984 and was received by the petitioner on 17.02.1984 calling upon him to pay an amount of Rs.2,50,438.54. Since, he could not appear as stated so in the notice, as the notice itself was served on 17.02.1984, a subsequent notice was also issued and immediately thereafter, the present impugned order was passed without waiting for any reply or any explanation of the petitioner. 3. The only challenge made is that the petitioner was not given any opportunity and it is against the principles of natural justice and the order passed is an exparte order and if any chance would have been given, he would have proved before the authorities concerned. https://hcservices.ecourts.gov.in/hcservices/ 4. The learned Special Government Pleader would contend that as the writ petitioner did not participate inspite of the show cause notice duly served on him, the order was passed on merits. The non- reply to the show cause notice is fatal and it is within the jurisdiction of the Officer to pass a final order. 5. Challenging the order dated 22.03.1989, the writ petition was filed and the learned Single Judge, while considering the same has taken into consideration that Kist amount though paid, the Government did not supply the arrack and that there was a delay in issuing license, ultimately, allowed the writ petition including the refund of Kist amount along with interest, though, it was not actually prayed for in the writ petition. Aggrieved against the same, the Government has filed the present writ appeal. 6. We have heard Mr.M.Dhandapani, learned Special Government Pleader for the appellant and Mr.V.Ayyadurai, learned counsel for the respondent. 7. The short point for consideration in this appeal is as to whether the writ petitioner was given an opportunity in respect of the demand made for recovery of the amount alleged to be payable by him. 8. At the outset, in the impugned order dated 22.3.1989 itself, it is stated in paragraph 3 as follows:- "3. In the reference cited the Ex-licencee was requested to offer his explanation as to why the Kist arrears amounting to Rs.2,50,438.54 could not be recovered from him. Though he acknowledged the receipt of the notice on 17.02.1989, he has not offered any explanation till date." 9. In the impugned order, it was very clearly stated that even though notice was given, he has not replied and no explanation was forthcoming. Even otherwise, as rightly pointed out by Mr.V.Ayyadurai, learned counsel for the respondent that show cause notice was originally issued on 31.03.1984, calling upon him to give explanation within 7 days, while notice was issued on 07.02.1984 after 7 days. The impugned order was passed on 22.03.1989 i.e., without even giving an opportunity of hearing to the respondent to appear before the authorities and no notice subsequently was given specifying the actual hearing date and no personal hearing was also given. 10. In these circumstances, without going into the merits, without making any observation with regard to the contentions of both the parties, we feel it suffice to direct the second respondent to enquire into the matter afresh after giving notice to the petitioner and a personal enquiry, if need be by the petitioners herein and https://hcservices.ecourts.gov.in/hcservices/ enquire into the fact whether at all the respondent herein is liable to pay the amount as claimed in the show cause notice dated 31.03.1984. The second respondent shall complete the exercise of further enquiry and passing orders within a period of six months from the date of receipt of a copy of this order. So far as the order of the Single Judge dated 23.04.1998 directing to refund the amount to the respondent herein with interest, we feel it that at this juncture, it is unwarranted. The said order is set aside and the writ appeal is partly allowed. While setting aside the order dated 23.04.1998 so far as refund of Kist amount is concerned, the matter is remitted back to the second respondent for reconsidering the entire matter afresh after giving opportunity to both sides concerned. Connected CMP.No.7926 of 2001 is closed. No costs. sd/- Asst.Registrar /True copy/ Sub.Asst.Registrar nvsri To 1. The Taluk Excise Officer, Tiruchirappalli, Tiruchirappalli. 2. The District Collector, Tiruchirappalli. 3. The Commissioner and Secretary to Government, State of Tamil Nadu Prohibition and Excise Department, Fort St.George, Madras-9. + 1 c.c. to Mr. V. Ayyadurai, Advocate. S.R.No.45908. + 1 c.c. to The Government Pleader. S.R.No.46012. Writ Appeal No.1396 of 2000 KLT (CO) GSK 06.07.2010. https://hcservices.ecourts.gov.in/hcservices/