MARY Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant, aggrieved by the judgment and order dated 13.6.2002 passed by the Division Bench of the Kerala High Court in Writ Appeal No.1734 of 1995 setting aside the judgment and order dated 4.8.1995 passed by learned Single Judge of the said High Court in Original Petition No.12514 of 1994; whereby it had directed for refund of an amount of Rs.7,68,600/- along with interest, is before us with the leave of the Court.

(2.) The appellant, Mary was a successful bidder in an auction conducted on 24.3.1994 for sale of privilege to vend arrack in Shop Nos. 47 to 55 and 57 in Kalady Range III for the period 1.4.1994 to 31.3.1995. Her bid was for a sum of Rs.25,62,000/-. The sale of the privilege to vend arrack is governed by the Kerala Abkari Shops (Disposal in Auction) Rules, 1974 (hereinafter referred to as 'the Rules'). The officer conducting the sale declared the appellant to be the 'auction purchaser' in terms of Rule 5(8) of the Rules. Being declared as auction purchaser, she deposited 30% of the bid amount i.e. Rs.7,68,600/- on the same date and executed a temporary agreement in terms of Rule 5(10) which was subject to confirmation by the Board of Revenue. Rule 5(19) makes this deposit as security for due performance of the conditions of licence. Kalady is the holy birth place of Adi Sankaracharya and adjoining thereto existed a Christian pilgrim centre associated with St. Thomas. The residents of those areas objected to the running of any abkari shop. A large number of people collected and offered physical resistance to the opening of the abkari shops and the law and order enforcing agency could not assure smooth conduct of business. The aforesaid circumstances led the appellant to believe that it was impossible for her to run the arrack shop in the locality in question. The appellant, therefore, by her letter dated 3.4.1994 addressed to the Board of Revenue, District Collector and Assistant Commissioner of Excise, informed them that because of mass movement it was not possible for her to open and run the shops. Accordingly, she requested them not to confirm the sale in her favour as it was impossible for her to execute the privilege for the reasons beyond her control. She also requested that the proposed contract may be treated as rescinded. She further reserved her right to claim refund of the security amount. There is nothing on record to show that after the appellant refused to carry out her obligations, the State Government took any step to re-sell or re-dispose the arrack shops in question.

(3.) Notwithstanding that, the Excise Inspector of Kalady Range sent a notice dated 8.4.1994 to the appellant, inter alia, stating that the sale has already been confirmed in her favour. The appellant was asked to accept the confirmation notice and enter into a permanent agreement. By the said notice the Excise Inspector also called upon the appellant to show cause as to why further proceedings as contemplated under the Rules should not be initiated against her. The appellant filed her reply to show cause on 17.4.1994 reiterating her inability to run the arrack shops and further requested that all proceedings pursuant to the auction held on 24.3.1994 be cancelled and the amount already deposited by her be refunded to her. It seems that the cause shown by the appellant did not find favour with the authority and the Assistant Excise Commissioner, by notice dated 20.4.1995, called upon the appellant to pay a sum of Rs.33,41,400/- towards the balance amount payable by her, together with interest at the rate of 18% thereon. Revenue recovery notice dated 30.6.1995 was also issued for realisation of the aforesaid amount. The appellant challenged the aforesaid notices issued to her in a writ petition filed before the Kerala High Court which was registered as Original Petition No.9976 of 1995 (Mary vs. State of Kerala & Others). While challenging the aforesaid notices and further proceedings, the appellant contended that Rule 5(15) and 5(16) are arbitrary and violative of Article 14 of the Constitution of India. The appellant filed another writ petition, inter alia, praying for direction to the State authorities to refund an amount of Rs.7,68,600/- paid by her as initial deposit. This writ petition was registered as Original Petition No.12514 of 1994 (Mary vs. State of Kerala & Others).