RAJAGOPALAN NAIR Vs. ASST COMMISSIONER OF EXCISE

JUDGEMENT

(1.) This appeal is against the judgment of the learned Single Judge dismissing O.P.No. 1682 of 1984. The appellant was the successful bidder who was granted foreign liquor retail shop No.60 for Palghat range for the year 1983-84, the kist amount being Rs. 5,27,000/-. The premises where the appellant was permitted to conduct the shop was the very same premises where licences were granted during previous years. On the ground that the premises in respect of which permission to conduct the business was granted is within the prohibited distance of 400 metres from the temple, attempts were made on more than one occasion by approaching this Court in O.P. Nos. 3347 of 1983, 5680 of 1983 and 8000 of 1983, by one Ramakrishnan to restrain the appellant from conducting the shop in the licensed premises. During the pendency of these Writ petitions, at the instance of the said Ramakrishnan, interim orders were granted restraining the appellant from conducting the business as a result of which the appellant was prevented from conducting the business. According to the appellant if the periods during which the appellant was prevented from conducting the business on account of the interim orders granted by this Court are excluded it will be found that he was able to conduct the business during the period as follows:

(2.) It is clear from what we have stated above that the licence was granted by the authorities for conducting the business in the very same place where licences were being granted for conducting the business during the previous years. The State Government itself has stated in the counter affidavit filed in O.P. No. 3347 of 1983 that the licence had to be granted in respect of the premises in question as within the entire area for which the licence is granted there is no other place which is not located within the prohibited distance. The Board of Revenue itself granted the exemption in the first instance for a period of three months and again for the remaining period till 31-3-1984. Exemption granted in favour of the appellant stood affirmed when the writ petition, O.P. No. 8000 of 1983 challenging the exemption came to be dismissed. Thus it is obvious that the appellant had either licence in his favour for conducting the business in the premises in question or there was exemption granted by the authorities for conducting the business in the very same premises. This was obviously realising that there is no other place where licence could have been granted other than wherein the licence has actually been granted. In this background it is not possible to agree with the view taken by the State Government in Ext. P15 that the order of injunction were occasioned by reason of the appellant having located the shop in an objectionable site and that therefore the problem must be regarded as having been the creation of the appellant himself. The facts clearly disclose that the appellant was not precluded from conducting the business in the premises in question by the authorities functioning under the relevant rules. The appellant was precluded from conducting the business from time to time on account of the interim orders granted by this Court in the three writ petitions referred to above. One of the cardinal principles of law is that where a Court has passed an interim order which has resulted in injustice, it is bound at the time of passing of final orders that if it takes a different view at that time to undo that injustice as far as it lies within its power, vide: the decision reported in 1984 (4) SCC 251 between Prabodh Varma v. State of U.P. and others. It was therefore the duty of this court to ensure that the appellant did not suffer on account of the interim orders that were made during the pendency of the writ petitions, the ultimate decision having been rendered in favour of the appellant enabling the appellant to conduct the business in the premises right from the grant of licence. It is obvious that the Division Bench which disposed of O.P. No. 8000 of 1983, consistent with its responsibility to ensure that the appellant is not subjected to injustice on account of the interim orders made by this court in the three cases when it said that this is a matter on which the appellant can make a representation to the State Government. The Court observes that there is no reason why the State Government should not grant relief to the appellant. These observations in the circumstances must be regarded as having the effect of issuing a direction to the State Government to consider the question of granting appropriate remission to the appellant in regard to the period for which the appellant could not conduct the business on account of the interim orders made by this court for no fault of his. As this court did not have the materials to quantify the extent of remission of the kist, this court instead of issuing a final direction in this behalf directed that the appellant could make an appropriate representation to be considered by the State Government. In obedience to the directions issued in O.P. No. 8000 of 1983 the State Government when a representation was made by the appellant was required to apply its mind only to ascertain as to the periods during which the appellant was prevented from conducting the business on account of the interim orders issued by this Court in the three writ petitions and to quantify the remission which should be granted to the appellant. No discretion was left to the State Government to decide as to whether the remission in the circumstances should or should not be granted. That is the only way to understand the observations made by this court in O.P. No. 8000 of 1983 consistent with justice and the observations of the Supreme Court referred to above so far as the State Government is concerned it has misdirected itself when it said that the appellant is not entitled to remission as it was on account of the problem created by the appellant himself that he could not conduct the business during the periods in question. It should have applied its mind and ascertained the number of days during which the appellant was prevented from conducting the business and quantify the remission that should be granted to the appellant and made an order to that effect. Failure to do so, in our opinion, is clearly inconsistant with the directions issued by this Court in O.P. No. 8000 of 1983. Even on merits in taking a decision that the appellant is not entitled to remission, we have no hesitation in taking the view that the State Government misdirected itself. Facts and circumstances disclosed that it is not on account of any fault of the appellant that he was disabled from conducting the business for almost half an year. He was precluded from conducting the business because of the interim orders passed by this court at the instance of Ramakrishnan in the three writ petitions already referred to. So far as the State Government and the Revenue Board are concerned, they have consistently made orders permitting the appellant to conduct the business in the very premises itself. The State Government has therefore misdirected itself in declining to grant relief to the appellant.