{"id":94759,"date":"2010-09-28T00:00:00","date_gmt":"2010-09-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/k-v-aravindan-vs-the-deputy-excise-commissioner-on-28-september-2010"},"modified":"2017-03-29T19:51:48","modified_gmt":"2017-03-29T14:21:48","slug":"k-v-aravindan-vs-the-deputy-excise-commissioner-on-28-september-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/k-v-aravindan-vs-the-deputy-excise-commissioner-on-28-september-2010","title":{"rendered":"K.V.Aravindan vs The Deputy Excise Commissioner on 28 September, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
K.V.Aravindan vs The Deputy Excise Commissioner on 28 September, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C).No. 13181 of 2010(W)\n\n\n1. K.V.ARAVINDAN, S\/O.KOLLARA VELAYUDHAN,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. THE DEPUTY EXCISE COMMISSIONER,\n                       ...       Respondent\n\n2. THE EXCISE COMMISSIONER,\n\n3. STATE OF KERALA REPRESENTED\n\n                For Petitioner  :SRI.T.A.SHAJI\n\n                For Respondent  :GOVERNMENT PLEADER\n\nThe Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR\n\n Dated :28\/09\/2010\n\n O R D E R\n                T.R. RAMACHANDRAN NAIR, J.\n                -----------------------------------\n                  W.P.(C). No.13181\/2010-W\n                -----------------------------------\n         Dated this the 28th day of September, 2010\n\n                         J U D G M E N T\n<\/pre>\n
     The petitioner herein is aggrieved by Ext.P12 proceedings<\/p>\n
issued by the Commissioner of Excise wherein the specific<\/p>\n
request made by the petitioner to adjust the security amount to<\/p>\n
the arrears while computing the liabilities was not accepted.<\/p>\n
     2.    This case has a chequered history. In the light of the<\/p>\n
various disputes which had culminated in different Judgments of<\/p>\n
this Court in the Writ Petitions filed by the petitioner, Writ Appeal<\/p>\n
and the Special Leave Petition and the Civil Appeal before the<\/p>\n
Supreme Court, it is only proper to recapitulate the entire history<\/p>\n
since the arguments have turned round on the effect and<\/p>\n
contents of various orders which have been passed.<\/p>\n
     3.    The petitioner was an individual licensee for the Abkari<\/p>\n
Year 1997-98 for vending toddy in Chavakkad Excise Range. He<\/p>\n
was granted license for Toddy Shop Nos.53 to 136 of Chavakkad<\/p>\n
Range for the years 1997-2000. The auction was confirmed by<\/p>\n
the Board of Revenue (Excise), Thiruvananthapuram and the<\/p>\n
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privilege to vend toddy was given with effect from 01\/04\/1997.<\/p>\n
The licence was issued for one year from 01\/04\/1997.<\/p>\n
      4.     Even though the licence was issued only for one year,<\/p>\n
a permanent agreement was executed for a period of three years.<\/p>\n
The petitioner, thereafter, commenced the business. It appears<\/p>\n
that there was default in paying the kist amount during 1997-98<\/p>\n
itself which resulted in the Department issuing demand notices,<\/p>\n
which prompted the petitioner to approach this Court by filing<\/p>\n
O.P.No.5470\/1999. Therein, the demand was for an amount of<\/p>\n
Rs.1,44,41,281\/- and it was mentioned that if the amount is not<\/p>\n
remitted within seven days, action will be initiated under Rule 6<\/p>\n
(28) of the Abkari Shops (Disposal in Auction) Rules, 1974 (in<\/p>\n
short ‘the Rules’). The Assistant Excise Commissioner, Thrissur<\/p>\n
passed an order dated 30\/05\/1998 cancelling the licence by<\/p>\n
invoking Sub Rule 28 of Rule 6 of the Rules. The security deposit<\/p>\n
of Rs.58,51,000\/- furnished by the petitioner was also forfeited<\/p>\n
by the Government. The legality of the same was adjudicated in<\/p>\n
O.P.No.5470\/1999.      The Writ Petition was disposed of by<\/p>\n
Judgment dated 31\/01\/2002.        The cancellation of licence was<\/p>\n
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upheld and with regard to the forfeiture of the security, it was<\/p>\n
found that the Commissioner of Excise is the proper authority to<\/p>\n
pass the order and, therefore, the Excise Commissioner was<\/p>\n
directed to take a fresh decision.\n<\/p>\n
     5.      Thereafter, the Excise Commissioner passed a fresh<\/p>\n
order dated 28\/05\/2002, a copy of which has been made<\/p>\n
available by the Government Pleader along with the memo dated<\/p>\n
18\/08\/2010. It was held that the licence is liable to be cancelled<\/p>\n
and security is liable to be forfeited. This was under challenge in<\/p>\n
O.P.No.17686\/2002 which was dismissed by the learned Single<\/p>\n
Judge along with connected Writ Petitions. It was also observed<\/p>\n
that the Government may consider the settlement of the matter<\/p>\n
by introducing an amnesty scheme. This was taken up before<\/p>\n
the Division Bench in W.A.No.641\/2005 which was dismissed<\/p>\n
along with other connected Writ Appeals. Therein it was held<\/p>\n
that the petitioners are also not entitled to challenge the recovery<\/p>\n
proceedings since Rule 6(28) of the Rules provides for recovery<\/p>\n
of loss. The petitioner carried the matter before the Apex Court<\/p>\n
in SLP (Civil) Nos.9394-97\/2005 which was dismissed as per<\/p>\n
W.P.(C). No.13181\/2010
\n                                -:4:-<\/span><\/p>\n
order dated 06\/05\/2005 holding the view that no interference is<\/p>\n
called for and by recording the submission that he would again be<\/p>\n
approaching this Court to raise another ground. Thereafter,<\/p>\n
R.P.No.580\/2005       was   filed    against  the  Judgment    in<\/p>\n
W.A.No.641\/2005.       The Review Petition was dismissed as per<\/p>\n
order dated 12\/09\/2007. Again the petitioner approached the<\/p>\n
Apex Court by S.L.P. (Civil) No.2705\/2008 where the leave was<\/p>\n
granted.     The Apex Court passed Ext.P4 interim order to the<\/p>\n
effect that the petitioners will only be required to pay licence<\/p>\n
fee\/rental for a period of one year unless it has already been<\/p>\n
paid.    A batch of Civil Appeals were disposed of by Ext.P6<\/p>\n
Judgment. The Civil Appeal filed by the petitioner was allowed as<\/p>\n
per Ext.P5, relying on Ext.P6. The impugned order passed by this<\/p>\n
Court was set aside and it was directed that the recovery of rent<\/p>\n
will be only for one year and not for three years.<\/p>\n
       6.    According to the petitioner, he had paid during the<\/p>\n
pendency of these cases the entire amount towards admitted<\/p>\n
liability and had paid Rs.1,05,16,939\/- in excess and, therefore,<\/p>\n
he sought for refund as per Ext.P7 representation. Apart from<\/p>\n
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that the petitioner has been conducting a bar attached hotel as<\/p>\n
Managing Partner of Vrindara Tourist Home, Edamuttam.          The<\/p>\n
respondents refused to renew the licence by Ext.P2 order herein<\/p>\n
for the reason that one of the partners, namely, the petitioner<\/p>\n
herein had to clear arrears in his individual business.        The<\/p>\n
petitioner disputed this and then he filed an application to renew<\/p>\n
the FL.3 licence as per Ext.P8 and, Ext.P9 is the true copy of the<\/p>\n
statement of accounts. He later approached this Court by filing<\/p>\n
W.P.(C).No.1130\/2010 wherein this Court directed the second<\/p>\n
respondent to consider Ext.P8 application for renewal of licence<\/p>\n
taking into account the Judgment of the Supreme Court as well.<\/p>\n
Ext.P10 is the copy of the said Judgment. Finally, Ext.P11 order<\/p>\n
has been passed.       Ext.P11 Order reveals that an amount of<\/p>\n
Rs.1,18,36,472\/- is remaining to be realised from the petitioner.<\/p>\n
The said order resulted in refusal to renew the bar licence. On<\/p>\n
implementation of Ext.P5 Order of the Apex Court, the Excise<\/p>\n
Commissioner passed Ext.P12 order.         The authority therein<\/p>\n
directed to revise the Demand Collection of Balance Statement<\/p>\n
[D.C.B Statement] by limiting the balance to the year 1997-98<\/p>\n
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only and, directed that the security amount may not be adjusted<\/p>\n
to the arrears while computing the liabilities. This is how the<\/p>\n
petitioner has approached this Court by filing this Writ Petition.<\/p>\n
Ext.P13 is the order passed in respect of the parties covered by<\/p>\n
Ext.P6 Judgment of the Apex Court wherein the security amount<\/p>\n
has been adjusted towards the liability. The petitioner seeks for<\/p>\n
a similar treatment here.\n<\/p>\n
      7.     The attack is against the refusal to renew the FL.3<\/p>\n
licence on the plea that the petitioner is in arrears as well as the<\/p>\n
refusal to adjust the security amount to the arrears while<\/p>\n
computing the liabilities, which are evidenced by Ext.P12 order.<\/p>\n
      8.     The learned counsel for the petitioner Shri T.A.Shaji<\/p>\n
submitted that since the petitioner has been granted all the<\/p>\n
benefits granted to the parties in Ext.P6 Judgment going by the<\/p>\n
Order in Ext.P5, the security amount is liable to be adjusted<\/p>\n
towards arrears and, therefore, it can be seen that he is not a<\/p>\n
defaulter and excess amount has been paid which are liable to be<\/p>\n
refunded to the petitioner.    The said stand is opposed by the<\/p>\n
learned Government Pleader appearing for the respondents for<\/p>\n
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various reasons and particularly that there is no direction by the<\/p>\n
Apex Court in Ext.P5 to adjust the security amount.<\/p>\n
      9.     Along    with the   memo     dated   18\/08\/2010,    the<\/p>\n
statements concerning the calculation of the arrears without<\/p>\n
adjusting the security deposit and its interest, and after adjusting<\/p>\n
the security deposit and its interest have been given.        If the<\/p>\n
security amount is not adjusted, the balance as on 31\/07\/2010<\/p>\n
will be Rs.1,26,06,026\/- and if the amount is adjusted then the<\/p>\n
amount      remitted    by  the   petitioner   in  excess   will  be<\/p>\n
Rs.67,32,729\/- enabling him to get a refund.\n<\/p>\n
      10. The arguments by the learned counsel for petitioner<\/p>\n
were mainly confined to Ext.P5 order passed by the Apex Court in<\/p>\n
Civil Appeal Nos.7844-46\/2009.        The said order is reproduced<\/p>\n
below for easy reference:-\n<\/p>\n
                   “The facts have been set out in the impugned<\/p>\n
             order and hence we are not repeating the same here.<\/p><\/blockquote>\n
                   In our opinion, the facts of the case are covered<\/p>\n
             by a judgment of this Court rendered in Civil Appeal<\/p>\n
             No.1541 of 2009 dated March 05, 2009, titled V.A<\/p>\n
W.P.(C). No.13181\/2010
\n                                   -:8:-<\/span><\/p>\n
             Ashokan vs. Asstt. Excise Commissioner & Others. In<\/a><\/p>\n
             paragraph 36 of the said judgment, it has been stated<\/p>\n
             that if the licence is granted for one year, then there<\/p>\n
             cannot be a recovery of rent for three years.\n<\/p>\n
                   Following the said judgment, these appeals are<\/p>\n
             allowed and the impugned order of the High Court is<\/p>\n
             set aside and it is directed that recovery of rent will be<\/p>\n
             only for one year and not for three years.”\n<\/p>\n
The learned counsel for the petitioner Shri T.A.Shaji submitted<\/p>\n
that significance should be attached to the opening sentence in<\/p>\n
the second paragraph that “in our opinion, the facts of the case<\/p>\n
are covered by a judgment of this Court rendered in Civil Appeal<\/p>\n
No.1541 of 2009 dated March 05, 2009, titled V.A.Ashokan vs.<\/p>\n
Asstt.Excise Commissioner & Others<\/a>“. It is therefore submitted<\/p>\n
that all the benefits that have been granted to the parties to the<\/p>\n
said Judgment, are liable to be granted to the petitioner herein<\/p>\n
also since the facts of this case are similar. The learned counsel<\/p>\n
for the petitioner invited my attention to the discussions in Ext.P6<\/p>\n
W.P.(C). No.13181\/2010
\n                                     -:9:-<\/span><\/p>\n
Judgment by the Apex Court especially, paragraphs (36) and<\/p>\n
(41). In paragraph (41), their Lordships have held as follows:-<\/p>\n
                   “41. ………….In   the  peculiar   facts  and<\/p>\n
             circumstances of this case, therefore, we are of the<\/p>\n
             opinion that it was not a case where even Rule 6(28)<\/p>\n
             could have also been resorted to. ………”<\/p>\n<\/blockquote>\n
The learned counsel therefore submitted that while implementing<\/p>\n
Ext.P6, by Ext.P13 order, the demand was recomputed by<\/p>\n
limiting the demand to the year 1997-98 and also by adjusting<\/p>\n
the security deposit and interest on security deposit to the<\/p>\n
liability of the defaulters in the respective dates of the forfeiture<\/p>\n
of the same to government account. Therefore, it is submitted<\/p>\n
that the refusal of the latter benefit as regards the petitioner is<\/p>\n
not supportable and is arbitrary and illegal.<\/p>\n
       11. The learned Government Pleader, Shri Manoj Kumar<\/p>\n
raised the following arguments. It is submitted that what was<\/p>\n
granted to the petitioner as per Ext.P5 Judgment of the Apex<\/p>\n
Court is a declaration that the recovery of the rent will only be for<\/p>\n
one year and not for 3 years.              The said benefit has been<\/p>\n
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specifically granted by the respondents by Ext.P12 order. With<\/p>\n
regard to the adjustment of security, it is argued that in the light<\/p>\n
of the earlier proceedings, the same have been forfeited as per<\/p>\n
competent orders passed by the Assistant Excise Commissioner<\/p>\n
and confirmed by the Excise Commissioner.           The challenge<\/p>\n
against the said order was repelled by this Court and, ultimately,<\/p>\n
the SLP (Civil) Nos.9394-97\/2005 were also dismissed.         It is<\/p>\n
therefore, submitted that the said question which has attained a<\/p>\n
finality cannot be reopened by the petitioner as the same will be<\/p>\n
barred by the principles of res judicata. Shri T..A.Shaji submitted<\/p>\n
that the adjustment of security only follows the directions in<\/p>\n
Ext.P5 and, therefore, the denial of the benefit on such technical<\/p>\n
pleas cannot be justified.\n<\/p>\n
      12. When the factual matrix is examined, the following will<\/p>\n
be evident:-\n<\/p>\n
      In Judgment in O.P.No.5470\/1999, this Court had directed<\/p>\n
the Excise Commissioner to consider whether the security deposit<\/p>\n
is to be forfeited and whether any amount is payable for the year<\/p>\n
1998-99 and 1999-2000 towards loss sustained by Government<\/p>\n
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due to default by the petitioners. It is accordingly, the Excise<\/p>\n
Commissioner passed the order dated 28\/05\/2002 against the<\/p>\n
petitioner holding the view that the licence is liable to be<\/p>\n
cancelled and security is liable to be forfeited. The challenge<\/p>\n
against the same in O.P.No.17686\/2002 resulted in dismissal,<\/p>\n
which was challenged in W.A.No.641\/2005. The Division Bench<\/p>\n
in paragraph (4) of the Judgment in W.A.No.641\/2005 and<\/p>\n
connected cases held that “petitioners are also not entitled to<\/p>\n
challenge the recovery proceedings since Rule 6(28) provides for<\/p>\n
recovery of loss. They are bound by the agreements executed by<\/p>\n
them and the various provisions of the Rules. We therefore fully<\/p>\n
endorse the view of the learned Single Judge and dismiss the<\/p>\n
Appeals.” In the S.L.P (Civil) Nos.9394-97\/2005 leave was not<\/p>\n
granted and it was dismissed recording the submission that the<\/p>\n
petitioner could again approach this Court to raise an additional<\/p>\n
ground namely that the amount realised from the subsequent<\/p>\n
vendees by the licensee for the period should have been adjusted<\/p>\n
against the loss claimed by the respondent authorities.<\/p>\n
W.P.(C). No.13181\/2010
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Accordingly, the petitioner filed R.P.No.580\/2005. The Division<\/p>\n
Bench passed the following order in the said Review Petition:-<\/p>\n
                   “2.  We find no reason to entertain these review<\/p>\n
             petitions. Learned counsel appearing for the review<\/p>\n
             petitioners referred to Annexure-A order of the<\/p>\n
             Supreme Court and submitted that the amount<\/p>\n
             realised from the subsequent vendees by the licensees<\/p>\n
             for the period should have been adjusted against the<\/p>\n
             loss claimed by the respondent authorities. Supreme<\/p>\n
             Court has noticed that the said contention was never<\/p>\n
             raised before this Court. We also reiterate that such a<\/p>\n
             contention was never raised before this Court and<\/p>\n
             hence cannot be raised through these review petitions.<\/p>\n
             If the petitioners have got any further grievance they<\/p>\n
             may approach the Government about which we<\/p>\n
             express no opinion. So far as these review petitions<\/p>\n
             are concerned, no grounds have been made out to<\/p>\n
             review our judgment. Review Petitions lack merit and<\/p>\n
             they are dismissed.”\n<\/p><\/blockquote>\n
W.P.(C). No.13181\/2010
\n                               -:13:-<\/span><\/p>\n
Therefore, what was sought for before the Division Bench in the<\/p>\n
Review Petition is the adjustment of the amount realised from the<\/p>\n
subsequent vendees by the licensees against the loss claimed by<\/p>\n
the respondents.      It was repelled on the finding that such a<\/p>\n
contention was never raised before this Court and hence cannot<\/p>\n
be raised in those Review Petitions and if the petitioners had got<\/p>\n
any further grievance they may approach the Government, about<\/p>\n
which the Bench expressed no opinion.\n<\/p>\n
     13. The learned Government Pleader is therefore right in<\/p>\n
submitting that as far as the point concerning the forfeiture of<\/p>\n
security is concerned, the matter became final and concluded by<\/p>\n
the dismissal of the Writ Petition, Writ Appeal and the Order in<\/p>\n
Special Leave Petition (Civil) Nos.9394-97\/2005 and the order<\/p>\n
passed by the Division Bench in R.P.No.580\/2005.<\/p>\n
     14. But, still the learned counsel for the petitioner Shri<\/p>\n
T.A.Shaji submitted that in the light of Ext.P5 Order of the Apex<\/p>\n
Court, the matter is open for consideration by the respondents as<\/p>\n
to whatever all the benefits granted in Ext.P6 Judgment are liable<\/p>\n
to be granted to the petitioners who are parties in Ext.P5 Order<\/p>\n
W.P.(C). No.13181\/2010
\n                                 -:14:-<\/span><\/p>\n
also. Herein, it is true that in paragraph (2) Their Lordships were<\/p>\n
of the opinion that the facts of the case are covered by Judgment<\/p>\n
Ext.P6. Specific reference was made to paragraph (36) of the<\/p>\n
Judgment in C.A.No.1541 of 2009 wherein it has been stated that<\/p>\n
if the licence is granted for one year, then there cannot be<\/p>\n
recovery of rent for three years. Accordingly, in the operative<\/p>\n
portion of the Order Ext.P5, it was directed that the recovery of<\/p>\n
rent will only be only for one year and not for three years. Even<\/p>\n
though, Shri T.A.Shaji wanted me to read into the Order the<\/p>\n
benefit of adjustment of security forfeited along with the interest,<\/p>\n
the said plea cannot be accepted in the light of the fact that no<\/p>\n
such benefits have been granted by the Apex Court in Ext.P5.<\/p>\n
     15. In the judgment of the Apex Court, produced as<\/p>\n
Exhibit P6, the relevant facts show that criminal cases were<\/p>\n
registered against the appellants therein, as the samples<\/p>\n
collected for chemical analysis stated that “Diazepam” had been<\/p>\n
detected at varying rates of 1.8 mg to 2.2 mg per litre of toddy<\/p>\n
sample, and criminal cases were registered.              Thereafter<\/p>\n
proceedings were issued cancelling the licences in terms of the<\/p>\n
W.P.(C). No.13181\/2010
\n                                -:15:-<\/span><\/p>\n
provisions of Rule 6(30) and Rule 6(28) by the Assistant Excise<\/p>\n
Commissioner.       So far as the orders directing cancellation of<\/p>\n
licence in terms of Rule 6(28) are concerned, they were referred<\/p>\n
to the Excise Commissioner for confirmation. At that stage, the<\/p>\n
Board purported to have come to the conclusion that in cases<\/p>\n
where licenses were cancelled in terms of the provisions of Rule<\/p>\n
6(30) of the Rules, Rule 6(28) would also be automatically<\/p>\n
attracted and accordingly, the decision of the Assistant<\/p>\n
Commissioner was upheld. The criminal cases ended in acquittal.<\/p>\n
The points     urged in the appeal are referred to elaborately in<\/p>\n
paragraph No.19 of the judgment. As far as recourse to Rule 6<\/p>\n
(28) is concerned, the point raised was that as there was no<\/p>\n
failure to pay kist and in any event having regard to the fact that<\/p>\n
the amount of security furnished would cover the entire kist<\/p>\n
amount, such proceedings need not have been initiated.           In<\/p>\n
paragraph No.26 of the judgment, the validity of the proceedings<\/p>\n
under Rule 6(30) was considered and it was held that violation of<\/p>\n
rules will attract Rule 6(30) leading to cancellation of licence. It<\/p>\n
was further held in paragraphs 27 and 30 that the consequences<\/p>\n
W.P.(C). No.13181\/2010
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of forfeiture under Rule 6(28) of the Rules is not automatic,<\/p>\n
consequent upon the cancellation of licence in terms of Rule 6<\/p>\n
(30). After elaborately considering the scope of Rule 6(28), the<\/p>\n
principles underlying under Section 74 of the Contract have also<\/p>\n
been considered. Finally in paragraph 41, after noticing that all<\/p>\n
the appellants have been acquitted, it was held as follows:<\/p>\n
             “In the peculiar facts and circumstances of<\/p>\n
             this case, therefore, we are of the opinion that<\/p>\n
             it was not a case where even Rule 6(28) could<\/p>\n
             have also been resorted to.”\n<\/p><\/blockquote>\n
Herein, in this case, as rightly pointed out by the learned<\/p>\n
Government Pleader, the facts are different. The petitioner was<\/p>\n
not involved in any criminal case, which has led to the<\/p>\n
cancellation of the licence. The payment of kist was defaulted<\/p>\n
during the currency of the licence.       The learned Government<\/p>\n
Pleader made available a copy of the notice issued to him which<\/p>\n
was produced as Exhibit P3 in O.P.No.5470\/99 by the petitioner,<\/p>\n
pointing out that in respect of Toddy Shop Nos.53 to 136 for the<\/p>\n
period from 9\/97 to 1\/98 and for the months of 4th and 5th of<\/p>\n
1998, the monthly instalments along with interest have been<\/p>\n
W.P.(C). No.13181\/2010
\n                                -:17:-<\/span><\/p>\n
defaulted. The defaulted amount in respect of each month has<\/p>\n
been mentioned and the total amount shown is Rs.1,36,52,776\/-.<\/p>\n
Adding interest portion, the total amount of instalments was<\/p>\n
Rs.1,36,52,776\/- and adding interest to the tune of 7,88,498\/-<\/p>\n
the amount has been finally arrived at 1,44,41,281\/-. It was<\/p>\n
informed to him that the amount if not paid within one week<\/p>\n
proceedings under Rule 6(28) will be taken against the petitioner.<\/p>\n
      16. This and other subsequent proceedings were under<\/p>\n
challenge in O.P.No.5470\/99, wherein this Court ultimately<\/p>\n
directed the Commissioner of Excise to examine the matter.<\/p>\n
Incidentally, the final order forfeiting the cancellation of licence<\/p>\n
and forfeiture of the deposit produced as Exhibit P4 in the said<\/p>\n
O.P. was interfered with, only with regard to           the portion<\/p>\n
forfeiting the deposit, since the Assistant Commissioner was not<\/p>\n
the authority to pass an order in that regard. The portion of the<\/p>\n
order cancelling the licence was upheld and with regard to the<\/p>\n
forfeiture of the licence, the matter was directed to be considered<\/p>\n
by the Commissioner.        The Writ Petition challenging the order<\/p>\n
passed by the Commissioner was dismissed as per judgment in<\/p>\n
W.P.(C). No.13181\/2010
\n                                  -:18:-<\/span><\/p>\n
O.P.No.17686\/2002 dated 14.1.2005. In paragraph No.3 of the<\/p>\n
said judgment, a copy of which was made available by the<\/p>\n
learned Government Pleader,it was observed as follows:<\/p>\n
             “The petitioners have no case that licence cannot<\/p>\n
             be cancelled for non-payment of kist arrears and<\/p>\n
             none of them have a case that they paid the kist<\/p>\n
             for the year 1997-98 on the due dates or were<\/p>\n
             even willing to pay the arrears of kist with delay<\/p>\n
             even     after  receipt    of notice    proposing<\/p>\n
             cancellation of licence on account of default and<\/p>\n
             so much so, the licences issued were       rightly<\/p>\n
             cancelled.”\n<\/p><\/blockquote>\n
The orders of the Commissioner of Excise, challenged in all the<\/p>\n
O.Ps. were upheld. This was affirmed by the Division Bench in<\/p>\n
W.A.No.641\/2005 and the Special Leave Petition Nos.9394-<\/p>\n
97\/2005 was also dismissed and the order in full is extracted<\/p>\n
below:\n<\/p>\n
                                    ORDER<\/p>\n
             ”   The only ground raised by the petitioners<\/p>\n
             before the High Court was whether the recovery<\/p>\n
             could be made from the petitioners who had<\/p>\n
             ceased to be licensees. The same ground has<\/p>\n
W.P.(C). No.13181\/2010
\n                                 -:19:-<\/span><\/p>\n
             been raised before us in the special leave<\/p>\n
             petitions.   We do not see any reason to<\/p>\n
             interfere with the decision of the High Court on<\/p>\n
             this issue.   However, it is submitted by the<\/p>\n
             learned counsel appearing on behalf of the<\/p>\n
             petitioners that they had an additional ground,<\/p>\n
             namely, that the amount realised from the<\/p>\n
             subsequent vendees by the licensee for the<\/p>\n
             period should have been adjusted against the<\/p>\n
             loss claimed by the respondent authorities. It<\/p>\n
             does not appear from the judgment of the High<\/p>\n
             Court that this argument had been raised before<\/p>\n
             the High Court. Learned counsel stated that his<\/p>\n
             client will approach the High Court. The SLPs<\/p>\n
             are accordingly dismissed.”<\/p><\/blockquote>\n
      17. The learned Government Pleader is therefore justified<\/p>\n
in submitting that the issue regarding the validity of the order<\/p>\n
forfeiting the security under Rule 6(28) has become final and the<\/p>\n
petitioner cannot re-agitate the same at this distance of time.<\/p>\n
Evidently, in Exhibit P5 order         passed by the Apex Court,<\/p>\n
direction is confined to the recovery of rent and it has been<\/p>\n
directed that recovery will be only for one year and not for three<\/p>\n
years.     The said benefit has been granted as per Exhibit P12<\/p>\n
W.P.(C). No.13181\/2010
\n                                -:20:-<\/span><\/p>\n
order by limiting the demand for the year 1997-98 only.<\/p>\n
      18. If the security amount is not adjustable, the<\/p>\n
contention of the petitioner that he has no liability to pay the<\/p>\n
balance amount,       and even excess amount has been remitted<\/p>\n
cannot be accepted. In that view of the matter, the refusal to<\/p>\n
renew FL.III licence cannot be faulted, as he is still in arrears, in<\/p>\n
his individual business.\n<\/p>\n
      19. The learned Government Pleader further submitted<\/p>\n
that the validity of Rule 6(28) has been upheld by a decision of<\/p>\n
the Division Bench of this Court in State of Kerala v. Biju<\/p>\n
Thomas<\/a> (2007(4) KHC 552(DB)). The entire scheme under<\/p>\n
the Abkari Act and the relevant Rules have been examined by the<\/p>\n
Division Bench.       With regard to the adjustment of security<\/p>\n
deposit, it was held in paragraph No.24 as follows:<\/p>\n
      ”   Under sub-rule (28) of Rule 6 of the Rules, if a<\/p>\n
      licensee fails to pay the kist, tree tax, duty, etc., for<\/p>\n
      any month together with interest under sub-rule (25),<\/p>\n
      the Assistant Commissioner, subject to confirmation<\/p>\n
      by the Board of Revenue, can cancel the licence, order<\/p>\n
      re-sale at the risk of the licensee or direct<\/p>\n
      management       of  the  business    of  contract    by<\/p>\n
W.P.(C). No.13181\/2010
\n                                  -:21:-<\/span><\/p>\n
      departmental agency or otherwise dispose of the<\/p>\n
      same.       The loss incurred by the government on<\/p>\n
      account      of  such    cancellation  and   re-sale  or<\/p>\n
      departmental management or other disposal of the<\/p>\n
      privilege will be borne by the defaulting licensee. If<\/p>\n
      for any reason, in such re-auction, if there is any gain<\/p>\n
      to the State, the same will not accrue to the licensee.<\/p>\n
      The said sub-rule also provides for forfeiture of the<\/p>\n
      whole of deposit made by the licensee at the<\/p>\n
      commencement of the lease period.”\n<\/p><\/blockquote>\n
and finally in paragraph No.36, it was held that:<\/p>\n
      “………..In our opinion, in view of the discussion we<\/p>\n
      have made earlier, it may not be possible to hold that<\/p>\n
      the legislature has not provided any provision in the<\/p>\n
      Abkari Act to frame a rule providing for forfeiture of<\/p>\n
      the whole or any portion of the kists deposited by<\/p>\n
      persons who purchase the right to sell toddy, arrack,<\/p>\n
      etc.”\n<\/p><\/blockquote>\n
Therefore, evidently, if a re-auction is conducted and loss is<\/p>\n
assessed, the forfeited deposit shall be deducted from the loss<\/p>\n
arising from the resale.      It is not the case herein, as for the<\/p>\n
failure to pay the kist amount, the licence was cancelled and<\/p>\n
security deposit has been forfeited, which is permissible going by<\/p>\n
W.P.(C). No.13181\/2010
\n                                 -:22:-<\/span><\/p>\n
Rule 6(28). The learned counsel for the petitioner Shri T.A.Shaji<\/p>\n
further submitted that prior to 31.3.1998 as no cancellation of<\/p>\n
licence was issued, the forfeiture of the security deposit is not<\/p>\n
correct. It is true that the initial order was passed only in May,<\/p>\n
1998.     But that will not show that the forfeiture ordered is<\/p>\n
incorrect as all the circumstances which were required to invoke<\/p>\n
the Rule were evident and available. Therefore, I am unable to<\/p>\n
agree with the pleas raised by the learned counsel for the<\/p>\n
petitioner.\n<\/p>\n
      In that view of the matter, the challenge against Exhibit P12<\/p>\n
fails and the Writ Petition is dismissed. No costs.<\/p>\n
                             T.R.RAMACHANDRAN NAIR, JUDGE.\n<\/p>\n
dsn<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court K.V.Aravindan vs The Deputy Excise Commissioner on 28 September, 2010 IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 13181 of 2010(W) 1. K.V.ARAVINDAN, S\/O.KOLLARA VELAYUDHAN, … Petitioner Vs 1. THE DEPUTY EXCISE COMMISSIONER, … Respondent 2. THE EXCISE COMMISSIONER, 3. STATE OF KERALA REPRESENTED For Petitioner :SRI.T.A.SHAJI For Respondent :GOVERNMENT PLEADER […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-94759","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nK.V.Aravindan vs The Deputy Excise Commissioner on 28 September, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/k-v-aravindan-vs-the-deputy-excise-commissioner-on-28-september-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"K.V.Aravindan vs The Deputy Excise Commissioner on 28 September, 2010 - 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