IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 19TH OCTOBER 2011 / 27TH ASWINA 1933 WP(C).No. 29759 of 2004(P) -------------------------- PETITIONER: -------------- K.P.SIVADASAN S/O. ANANTHAN, AGED 62 YEARS, SIVASANTHA VILASOM, THIRUVANGAD AMSOM DESOM, THALASSERY -3, KANNUR DISTRICT. BY ADV. SRI.V.RAJAGOPAL SRI.K.N.CHATHUKUTTY RESPONDENTS: ----------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT.SECRETARIATE, TRIVANDRUM. 2. THE SPECIAL DEPUTY TAHSILDAR FOR ARREAR COLLECTION, KANNUR. 3. THE ASST.COMMISSIONER, EXCISE DEPARTMENT KANNUR. 4. THE COLLECTOR OF KANNUR, KANNUR. R1 TO R4 BY SENIOR GOVERNMENT PLEADER SRI.SHIBU JOSEPH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 29759 of 2004(P) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE JUDSGMENT IN OP NO.179/75 OF THE HIGH COURT OF KERALA DATED 18.11.1975. EXT.P2 : TRUE COPY OF THE REPRESENTATION DATED 24.03.1972 FILED BEFORE THE 4TH RESPONDENT. EXT.P3 : TRUE COPY OF THE STATEMENT OF ACCOUNT FOR THE ARREARS AS ON 01.4.2003. EXT.P4 : TRUE COPY OF THE JUDGMENT IN OP NO.497/82 DATED 21.01.1982 OF THE HIGH COURT OF KERALA. EXT.P5 : TRUE COPY OF THE CHALLAN RECEIPT DATED 23.01.1982. EXT.P6 : TRUE COPY OF THE JUDGMENT IN WA. NO.703 OF 1997 OF THE HIGH COURT OF KERALA DATED 02.04.2004. EXT.P7 : TRUE COPY OF ORDER DATED 08.09.2004 ISSUED BY SECRETARY(TAXES), GOVERNMENT OF KERALA. RESPONDENT'S EXHIBITS: EXT.R3(A) : TRUE COPY OF THE JUDGMENT IN OP No.7710/90 DATED 24.01.1997. /TRUE COPY/ PA TO JUDGE P.R.RAMACHANDRA MENON,J - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 29759 OF 2004 - - - - - - - - - - - - - -- - - - - - - - - - - - Dated this the 19th day of October, 2011 JUDGMENT The short question that arises for consideration in this case is whether Ext.P7 order passed by the 1st respondent/Government is in conformity with the directions given by this Court to have the claim for remission considered as per judgment in W.A. No.703 of 1997(Ext.P6) and if not, what amount the petitioner is entitled to. 2. The case has got a long history. The petitioner and one T.K. Kunhikannan were running 22 toddy shops during the year 1971-72. The toddy shops had to be closed for 5 days from 29.12.1971 to 02.01.1972 because of some communal riots in Thalassery. The 'Kist amount' for the shops amounted to `1,316/- per day and as such, the petitioner pointed out that he was entitled to have a remission of `6,580/- in respect of the closure of the shops for the five days as aforesaid. 3. When there occurred some default on the part of the petitioner in satisfying the dues towards Kist arrears, the WP(C) No. 29759 of 2004 -:2:- petitioner put forth the above contention; which however was not considered. Then he approached this Court by filing O.P. No.179 of 1975. It was disposed of directing the claim to be considered. Contending that the judgment was not complied with, the petitioner approached this Court again by filing O.P. No.497 of 1982 challenging the recovery proceedings and as to the claim in respect of the remission, where the Government took the stand that the recovery sought to be pursued was in respect of the Abkari Welfare Fund Arrears. Later, in the course of further proceedings, the petitioner approached this Court by filing O.P. No.7710 of 1990, wherein interference was declined, which was subjected to challenge by filing W.A. No.703 of 1997 culminating in Ext.P6 judgment. It is observed in the said verdict in paragraph 2 as follows: “2. In the counter affidavit it is stated that Government has not remitted Rs.6,580/-. But no where it is stated that Government has disposed of Ext.P1 representation in O.P. No.179 of 1975. Therefore, first respondent has to decide whether petitioner was entitled to remission of Rs.6,580/-. Only after taking a decision regarding the same, further demand, if any, can be made. Petitioner should file along with a copy of this judgment a WP(C) No. 29759 of 2004 -:3:- copy of Ext.P1 representation filed in O.P. No.179 of 1975 within two months from today. If such a representation is filed within two months from today, the Government shall dispose of that representation as directed earlier and only after disposal of the representation and communication of the order, further recovery proceedings can be taken against the petitioner. We make it clear that if no representation is filed within two months, Government can proceed with recovery proceedings without further notice.” It was pursuant to Ext.P6, that the 1st respondent turned down the claim leading to Ext.P7, which is under challenge in this Original Petition. 4. The learned counsel for the petitioner submits that there is total non-application of mind in Ext.P7 order and that no reason is stated to decline the relief sought for. The stand that no record is available with the Government after expiry of 27 years, is not a legally sustainable ground, more so, in view of the directions given by this Court earlier, including by way of Ext.P6; submits the learned counsel. 5. The learned Government Pleader appearing on behalf of the Government submits on the other hand that, the idea and understand of the petitioner is quite wrong and WP(C) No. 29759 of 2004 -:4:- misconceived. Separate counter affidavits have been filed by the 3rd respondent as well as the 1st respondent narrating the sequence of events and the nature of law involved. 6. Referring to paragraph 3 of the counter affidavit filed by the 1st respondent the learned Government Pleader submits that the petitioner is not entitled to have any remission in view of the relevant rules and also the specific terms of the relevant notification. The contents of paragraph 3, which is more relevant to the issue reads as follows: “It is humbly submitted that the petitioner was the contractor of in respect of Toddy shops bearing numbers TsNos.1, 2, 4, 5, 7, 11, 12, 14,18, 22,23, 25 and 28/71-73 (13 Nos.) along with one late Sri.T.K.Kunhikannan. They had defaulted an amount of Rs.22,659.62 as on 01.04.1973. As per Rules the Department have taken steps to realize the arrear under Revenue Recovery Action. The petitioner cannot claim any remission of Kist on the grounds set forth by him since the notification of the Abkari Shops for 1971-73 it was specifically stated that every shop keeper on his own notice will close his shops when there is riots or disturbances in the neighbourhood. It was also specifically stated in condition 26 part II of the general condition of sale notification that no remission or abatement of the rental shall be claimed by the licensee on any account. Therefore the petitioner's claim for remission of Kist cannot be considered.” WP(C) No. 29759 of 2004 -:5:- 7. After hearing the learned counsel for the petitioner as well as the learned Government Pleader appearing for the respondents, this Court finds that the claim put forth by the petitioner seeking for remission is not supported by any provisions of law; nor is it enforceable by virtue of any specific terms agreed in between or by virtue of any clause in the notification issued. It is also stated that even though indulgence was shown by this Court earlier, with regard to the mode of satisfying the outstanding liability, the petitioner did not make use of the same by effecting the payment on time as ordered. In that view of the matter, since the petitioner has failed to point out any enabling the provision for remission, this Court finds it difficult to accept the proposition mooted by the petitioner. The Writ Petition fails and the same is dismissed accordingly. P.R.RAMACHANDRA MENON, JUDGE ttb