E J DAVIS Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is challenging Exts. P3 and P4 notices issued for recovery of arrears of abkari dues in respect of the arrack shops originally licensed to the petitioner and later transferred to additional respondents 5 and 6. The petitioner's contention is that Exts. P3 and P4 are unsustainable for the reason that the petitioner is proceeded against for recovery only because the arrears could not be recovered from the transferees as their assets are not sufficient to meet the liability. According to the petitioner, the licence issued to the petitioner in respect of some arrack shops out of a group purchased by the petitioner were transferred to additional respondents 5 and 6 pursuant to Exts. P1 and P2 orders issued by the Assistant Commissioner of Excise under Rule 6(22) of the Abkari Shops (Disposal in Auction) Rules. Further after transfer of licence to additional respondents pursuant to Exts. P1 and P2, the transferees had executed security and solvency and therefore, once transfer is approved and effected, the petitioner cannot be proceeded against for recovery of any abkari dues from the transferees. Along with amended W. P. the petitioner has produced two certificates issued by the Excise authorities namely Exts. P8 and P9 stating that no abkari arrears are due from the petitioner. Relying on Exts. P1, P2 and P8 and P9 the petitioner contended that recovery proceedings initiated vide Exts. P3 and P4 are illegal and unauthorised. There is an alternate contention that recovery in any case is barred by limitation as the abkari arrears is pertaining to the year 1993-94.

(2.) Government Pleader on the other hand referred to the specific condition imposed by the Assistant Commissioner of Excise in Exts. P1 and P2 approving transfer of licence from the petitioner to additional respondents 5 and 6 which is as follows:

(3.) The next contention raised based on Exts. P8 and P9 also do not entitle the petitioner for any immunity because all what Exts. P8 and P9 say is that the petitioner was not in arrears due to the Excise Department. What is sought to be recovered under Exts. P3 and P4 are arrears payable in respect of arrack shops originally allotted to the petitioner but transferred by the petitioner and recoverable from him by virtue of specific clause contained in Exts. P1 and P2 which authorises the Department to recover the amount from the security furnished by the transferor. In other work, it is recovery of liability of the transferees recoverable from the transferor under the condition imposed by the Department. Therefore Exts. P8 and P9 cannot in any way disable the Department from proceeding against the petitioner for recovering arrears due from the transferees by virtue of the specific clause contained in Exts. P1 and P2. Therefore, this argument is also found against the petitioner.