GOPACHANDRAN NAIR Vs. PRINCIPAL SECRETARY TO GOVERNMENT

JUDGEMENT

(1.) Ext.P13 notice issued by the State Government proposing to cancel Ext.P1 order passed by the Board of Revenue and Ext.P14 order passed by the State Government cancelling Ext.P1 are under challenge in this Writ Petition. The brief facts of the case are as follows.

(2.) The first Petitioner, the grandfather of the second Petitioner and two others were the joint licensees of abkari shops Nos. 1 to 88 of Hosdurg Range during the year 1989-90. The total rent payable by them for the said shops was 93,42,100/-. The licensees had deposited 30% of the said amount as security deposit and had also furnished solvency for another 30% as required under Rule 5(10) and (15) of the Abkari Shops (Disposal in Auction) Rules, 1974, which was then in force. The licensees defaulted payment of the kist in June 1989. Since the licensees did not pay the balance kist amount, the licence was cancelled. Later the shops were managed departmentally during the period from 1.11.1989 to 31.3.1990 and the sum of 24,24,520/- was realised as departmental management fee. The said sum of 24,24,520/- was however not adjusted against the sum of 49,15,511/- payable by the licensees towards kist as on 31.3.1990. The licensees thereupon submitted an application dated 24.9.1992 to the Board of Revenue requesting that the sum of 24,24,520/- realised by departmentally managing the shops may be adjusted against the amounts due from them. On that petition the Board of Revenue (Excise) called for a report from the Assistant Excise Commissioner, Hosdurg. The said officer submitted a report dated 8.10.1992 recommending such adjustment. The Board of Revenue thereafter passed Ext.P1 order dated 16.10.1992 according sanction to adjust the sum of 24,24,520/- realised by departmentally managing the shops during the period from 1.11.1989 to 31.3.1990 towards the dues of the licensees. The sum of 24,24,520/- was however, adjusted only on 16.10.1992 as aresult of which interest was levied till that date on the principal sum of 49,15,511/-. For realisation of the balance amount due after adjusting the sum of 24,24,520/- and after giving credit to the various other amounts paid direcdy by the licensees, revenue recovery proceedings were initiated against the licensees to recover the balance amount due from them. A few items of immovable properties belonging to the licensees were attached and sold for realisation of the balance amount due from them. However, some other items of immovable properties which were attached are still continuing under attachment.

(3.) While matters stood thus, the Government introduced an amnesty scheme as per G.O.(Ms) No. l08/08/TD dated 26.5.2008. By the said scheme the Government ordered that if 75% of the principal amount due by way of kist is remitted, interest and penalty and 25% of the principal amount shall stand waived. The licensees including the Petitioners thereupon moved an application claiming the benefit of the amnesty scheme. On that application the 3rd Respondent passed Ext.P3 order dated 27.3.2008 whereby he directed payment of the sum of 33,80,543/- towards full and final settlement of the liability. 25% of the said amount was to be paid within 15 days from the date of receipt of Ext.P3 and the balance in three equal monthly instalments. Along with Ext.P3 an adjustment statement was also annexed. The said statement discloses that the sum of 24,24,520/- realised by departmentally managing the shops was adjusted only on 16.10.1992. The Petitioners thereupon filed W.P. (C) No. 23521 of 2008 in this Court contending that the amount realised by departmentally managing the shops should have been adjusted as and when the proceeds were realised and not on 16.10.2002. It was contended that if that had been done, the liability of the licensees would have been much lesser. By Ext.P4 judgment delivered on 7.8.2008 a learned single Judge of this Court directed the Commissioner of Excise to examine the said contention in the event of the Petitioners filing an appropriate representation before him in that regard within ten days from the date of receipt of a copy of the said judgment. The Petitioners accordingly filed a petition dated 13.8.2008 claiming such adjustment. By Ext.P5 letter dated 16.2.2009 the Excise Commissioner informed the Petitioners that in view of Rule 13 of the Abkari Shops Departmental Management Rules, 1972 the fee collected by departmentally managing the shops cannot be adjusted towards the liability of the Petitioners as they had not completed the security. The Petitioners thereupon filed W.P. (C) No. 6824 of 2009 in this Court challenging Ext.P5. By Ext.P6 judgment delivered on 17.9.2009, a learned single Judge of this Court held that the sum of 24,24,520/- should have been credited in the account on 31.3.1990. The Writ Petition was accordingly disposed of with a direction to the authorities to refix the total amount due from the licensees, after crediting the sum of 24,24,520/- in the account on 31.3.1990.