VADAKKEDATH RAVUNNI NAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) The privilege of vending toddy, arrack and foreign liquor, during the period from 1st April 1968 to 31st March 1969 in independent retail shops, was sold in public auction by the Government under the provisions of S.18A of the Abkari Act I of 1077. The petitioner is stated to be a joint bidder in respect of the toddy shop No. 6/68-69 of Ottapalam Range, his cobidder or his partner, being the 4th respondent. The 'petitioner disputes his having participated In the auction, but the allegation in the counter affidavit is that the petitioner and the 4th respondent jointly signed the sale list on 5-3-1968. I shall assume, without deciding at this stage, that the petitioner is a joint bidder, as the main argument was, that even if he was, the liability now sought to be enforced was not attracted. Three tenth of the bid amount as required by the conditions of auction was not deposited; nor was any agreement executed as contemplated by the same, A notice of reauction was issued in November 1968, and the shop was resold. For damages incurred by the Government consequent on the reauction of the shop, Ex. P1 notice dated 19-9-1969 was issued to the petitioner and the 4th respondent, intimating that a sum of Rs. 13,070.73 together with interest at 9% was due towards Abkari arrears in respect of toddy shop No. 6/68-69, and requiring remittance of the same within the specified time; on default of which, revenue recovery proceedings were threatened. Ex. P2 dated 29-9-1969 is a copy of the petitioner's reply. It stated that the petitioner had not bid in auction any toddy shop in Ottappalam Range in 1968-69 and no amount was due from him, and that he had, in answer to an earlier notice, denied having signed the sale list. Ex. P3 dated 29-12-1969 is yet another notice by the 2nd respondent in similar terms as Ex. P1. The petitioner has prayed to quash Exs. P1 and P3 and to direct respondents 1 to 3 by a writ of mandamus or other appropriate writ or direction to conduct an enquiry about the liability of the petitioner for arrears shown in Exs. P1 and P3 before proceeding to recover the same.

(2.) The main contention was that in the absence of any confirmation of the sale and the execution of any agreement in conformity with Art.299 of the Constitution of India, the petitioner is not liable to be proceeded against under the Revenue Recovery Act, in respect of the Abkari arrears specified in Exs. P1 and P3. For the State, reliance has been placed on S.28 of the Abkari Act 1077 to fasten liability on the petitioner. The said section reads:

(3.) If, as I hold, the petitioner is the "grantee of a privilege" by reason of his having bid jointly or individually at the auction and the bid having been knocked down in his favour, the liability for abkari dues is attracted by S.28 of the Act. That was the view taken by my learned brother, Mathew J., in Madhavan v. The Assistant Commissioner, Palghat (ILR 1969 (2) Kerala 95). Although the Division Bench did not expressly advert to this part of the reasoning of Mathew J., it did not demur to it, and sustained liability on the ground that there was a concluded contract, the moment the hammer fell.