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2002 DIGILAW 700 (KER)

Vijayamma v. State of Kerala

2002-10-29

M.RAMACHANDRAN

body2002
Judgment :- 1. By notification dated 30.3.2002, amendments had been made to the Kerala Abkari Shops Departmental Management Rules, 1972 and the new policy provided for a system of running toddy shops by vending the shops by public sale, shop by shop, for a fixed annual rental as licence fee. The second respondent had notified the details of shops of Trivandrum Excise Division. The new rules, by R.5(2)(a) provided for a preference to applicants who had previous experience in conducting shops between 1996-2001. The petitioner had previous experience which could have been accounted as per the rules and being the lone applicant for toddy shop No. 4 Pravachambalam of Neyyattinkara Range, had been provisionally declared as grantee of the privilege on the sale conducted on 20.4.2002. The averments in the Original Petition indicate that towards the annual rental, welfare fund contribution and other deposits she had paid a total amount of Rs. 4 lakhs by Demand Draft. 2. But, on the same day, a re-sale of the above shop was conducted by the District Collector, noticing an objection that the petitioner had not remitted 50% of the arrears pending against her as on the date of sale notification, as contemplated under R.5 of the general conditions. R.5(3)(iii) for the purpose of reference have the following effect: "No individual is eligible for the privilege of any shop, if he is a defaulter of Abkari arrears, Sales Tax arrears or any other arrears due to the Kerala Toddy Workers Welfare Fund or the Kerala Abkari Workers Welfare Fund unless he produces from the Circle Inspector of Excise, Sales Tax Officer, the Authority of the said Welfare Fund Board or any other officer authorised in this behalf as the case may be a certificate to the effect that no dues are outstanding against him or that he has remitted before the date of sale of the shop 50% of the arrears pending against him as on the date of sale notification". 3. Ext. P3 is the certificate issued by the Assistant Excise Commissioner dated 9.4.2002 and it was worded as following: "Certified that Smt. M. Vijayamma, D/o. Neelakanda Pillai, Smitha Bhavan, Nattakam Village, Kottayam Thaluk had remitted Rs. 29475/- (Rs. 1836/- as per Receipt No. 49, Book No. 120 dated 9.4.2002 and Rs. 3. Ext. P3 is the certificate issued by the Assistant Excise Commissioner dated 9.4.2002 and it was worded as following: "Certified that Smt. M. Vijayamma, D/o. Neelakanda Pillai, Smitha Bhavan, Nattakam Village, Kottayam Thaluk had remitted Rs. 29475/- (Rs. 1836/- as per Receipt No. 49, Book No. 120 dated 9.4.2002 and Rs. 27639/- as per Receipt No. 53, Book No. 120 dated 9.4.2002 at Taluk Office (R.R.), Kottayam) being the 50% of the arrears amount shown as Sl. No. 311 in the defaulters list received from the Asst. Excise Commissioner, Thiruvananthapuram in connection with the sale of Toddy Shop for the year 2002-03. (Arrear of Tax on Toddy Transport for the year 96-97 Rs. 58950/- shown in the list)". As referred to earlier, noticing the objections cancelling the sale made in favour of the petitioner, the shop had been allotted in the name of K. Sudarsanan (5th respondent herein) on the same day. The petitioner had filed O.P. No. 11007 of 2002 challenging the above, pointing out that the petitioner came within the proviso to the rule on the strength of Ext. P3 certificate. Inter alia she had also attempted to substantiate her contentions that there was no disability as far as she is concerned. The new grantee had got himself impleaded in the proceedings. Finding that there was a prima facie case projected by the petitioner, this Court, by judgment dated 29.5.2002, had directed the Excise Commissioner to decide the matter taking into account the remittances that had been claimed. Consequential order passed by the said officer is Ext. P2 and the action taken by the District Collector cancelling the shop has been upheld thereby. The officer had also confirmed forfeiture of the licence fee remitted by the petitioner as ordered by the District Collector. It is aggrieved by the above order, that this Original Petition had been filed. 4. Though it is filed on 10.7.2002, for one reason or other, it was not heard earlier. On behalf of the petitioner, Sri. Vakkom N. Vijayan appeared, the Government Pleader appeared on behalf of respondents 1 to 4 and Sri. C.C. Thomas appeared on behalf of the 5th respondent. 5. The petitioner refers to Ext. 4. Though it is filed on 10.7.2002, for one reason or other, it was not heard earlier. On behalf of the petitioner, Sri. Vakkom N. Vijayan appeared, the Government Pleader appeared on behalf of respondents 1 to 4 and Sri. C.C. Thomas appeared on behalf of the 5th respondent. 5. The petitioner refers to Ext. P2 and submits that there was a failure of jurisdiction on the part of the Excise Commissioner in coming to the conclusion that the District Collector acted properly in the matter of cancellation of the sale and forfeiture. 6. The learned Government Pleader had submitted that the petitioner was not entitled to the benefit of R.5(3)(iii) of the Rules as there was failure to remit 50% of the amount that was in arrears and this automatically led to a position that she was to be subjected to disabilities including forfeiture. Counsel for the 5th respondent submitted that he had entered the scene bona fide and had made all remittances and was conducting the shop from 20.4.2002 onwards and as the Abkari year has crossed midway, there was no justification for making any rearrangement and it may end up in a colossal loss to him. 7. The question is whether the petitioner is entitled to the benefits arising from the statutory prescription of R.5(3)(iii). On going through Ext. P2, it is seen that the Excise Commissioner has heavily relied on the report of the Tahsildar (RR), Kottayam stating that the petitioner was in arrears of Rs. 79,476/- as on 2.4.2002 (the date of sale notification). The certificate issued by the Assistant Excise Commissioner, though referred to arrears of Rs. 58,950/-, according to the Excise Commissioner, since another major debt was there to be discharged, the petitioner was even guilty of suppression and there was no justification for any review of the orders that had already been passed on the subject. The order thereafter referred to the consequences which were to automatically follow and had upheld the order of the District Collector. 8. The complaint of the petitioner is that there is no advertence made to Ext. P3 or Ext. P4 while the order has been passed. They were certificates issued by the Assistant Excise Commissioner, Kottayam dated 9.4.2002 and 2.5.2002. 9. The criticism as voiced by the petitioner appears to be justified. The department maintains defaulter lists and Ext. 8. The complaint of the petitioner is that there is no advertence made to Ext. P3 or Ext. P4 while the order has been passed. They were certificates issued by the Assistant Excise Commissioner, Kottayam dated 9.4.2002 and 2.5.2002. 9. The criticism as voiced by the petitioner appears to be justified. The department maintains defaulter lists and Ext. P5 is the extract of defaulters, prepared for the year 2002. The petitioner is shown as item No. 311 therein. It is with reference to this list the Asst. Excise Commissioner had passed Ext. P3 certificate showing that there has been a remittance of 50% of the arrears amount. The petitioner could not have been found fault with a wrong entry in the defaulters list and therefore could not also have been subjected to any disability arising because of any alleged mistake therein. Even as at present the respondents have not filed a counter affidavit showing that the petitioner is a defaulter to the Department or Government of any particular sum. As I could see from Ext. P2, there is only a jugglery of figures and it is not explained as to how the figure was incorporated in Ext. P5 as the amount of default. 10. The sale effected on 20.4.2002 had been cancelled on the very day. The petitioner had been cleared on the basis of Ext. P3 certificate and without any convincing materials, it is a mystery as to what prompted the District Collector to cancel the privilege. He was bound to rely on Ext. P3, and evidently tables were turned against the petitioner in the most suspicious manner. 11. Counsel for the petitioner is justified in contending that as far as his client is concerned, before participating in the sale proceedings, in a prudent manner the arrears which were payable has been enquired into and 50% of the arrears had been paid. According to him, such amount alone is payable and reference to yet another larger amount as stated in Ext. P2 is non existing. Ext. P2 shows that the calculations were always made to the advantage of the Department, and interest for more than the principal was being levied. Only the Department was aware as to what were the dues at a particular point of time, and the possible and safe reliance could only be made on the official defaulters' list. Ext. P2 shows that the calculations were always made to the advantage of the Department, and interest for more than the principal was being levied. Only the Department was aware as to what were the dues at a particular point of time, and the possible and safe reliance could only be made on the official defaulters' list. For want of a counter affidavit, I am also at a loss to see whether any such amounts are indeed payable. In any case, so far as the sale is concerned, on principles of estoppel, at least the petitioner is entitled to succeed. There is no explanation as to why a wrong figure was there in the list when it is presumed that it is authentic and was the piece of document which was intended to be acted upon by the officers concerned, while conducting auction. By making a substantial payment, before the date of sale, the petitioner ought to have been treated as come out of the mischief of disability. 12. It is submitted by the respondents that an appeal is provided under the statute to the Government in the matter. But, I do not think that it will be proper on my part to drive the petitioner away, with a direction to resort to the appeal provision and await the results, since now every day counts. Ext. P3 ought to have been acted upon and the District Collector was in error to rely on imaginary figures and to arrive at a finding that the petitioner was a defaulter especially behind her back. The rule referred to possession of a certificate issued by the Excise Department and this has been made available. The petitioner could not have been faulted at all since she had discharged her part of the duty. The resultant position is that I have to hold that the cancellation of sale in favour of the petitioner had been done arbitrarily and she has to be restored with the privilege. I, therefore, set aside Ext. P2. Appropriate orders should be passed by the Excise Commissioner allotting Toddy Shop No. 4 of Neyyattinkara Range to the petitioner within a period of two weeks from today. 13. I, therefore, set aside Ext. P2. Appropriate orders should be passed by the Excise Commissioner allotting Toddy Shop No. 4 of Neyyattinkara Range to the petitioner within a period of two weeks from today. 13. However, it is made clear that if as a matter of fact larger amounts are due from the petitioner, this judgment will not stand in the way of the department from demanding payment thereof as this judgment is rested on principles of estoppel, and predominantly for technical reasons. The Department also should see that the 5th respondent is not subjected to any disability, and he will be entitled to get back the remittances made by him after adjusting for the periods he was in actual occupation of the premises on the strength of privilege granted to him. The Original Petition is disposed of as above. Parties will suffer their respective costs.