Allowed

M/S Padma Agencies v. Secretary to the Government and 4 Others

Kerala HC7 Nov 2013WP(C)/3988/2011

Case brief

AI extract

What is this about?

The Court allowed a writ petition challenging demand notices for kerosene differential costs. It set aside the notices because a final inter-party judgment had previously set aside an identical notice against the petitioner, while a contradicting Division Bench judgment did not bind the petitioner who was not a party to those proceedings.

What did the court decide?

The demand notices Exts. P3 and P6 are set aside. The writ petition is allowed. No cost.

M/S Padma Agencies Vs Secretary to the… — Public Procurement and Tenders | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

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THURSDAY, THE 7TH DAY OF NOVEMBER 2013/16TH KARTHIKA, 1935

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WP(C).No. 3988 of 2011 (W)

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PETITIONERS:

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M/S. PADMA AGENCIES, KEROSENE WHOLESALE DEALERS, H.P.C.DEALER, SOUTH BEACH ROAD, KOZHIKODE, PROPRIETOR, C.K.V.MOHAMMED USMAN.

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BY ADVS.SRI.T.S.RADHAKRISHNA PILLAI, SRI.O.K.MURALEEDHARAN.

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RESPONDENTS:

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1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, FOOD & CIVIL SUPPLIES DEPARTMENT, THIRUVANANTHAPURAM - 1.

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2. THE DIRECTOR OF CIVIL SUPPLIES, COMMISSIONERATE OF CIVIL SUPPLIES, THIRUVANANTHAPURAM - 1.

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3. THE DISTRICT COLLECTOR, P.O. KOZHIKODE - 673 001.

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4. THE DISTRICT SUPPLY OFFICER, P.O. KOZHIKODE - 673 001.

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5. THE TALUK SUPPLY OFFICER, P.O. KOZHIKODE - 673 001.

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BY SR. GOVERNMENT PLEADER SMT. M.J. RAJASREE.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Prv.

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W.P.(C).NO.3988/2011-W:

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P.1:	COPY OF THE NOTICE NO.C.2034/99(2) DTD. 23/09/03 OF THE R.5. TO THE PETITIONER.
EXT.P.2:	COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C).NO.31558/2003 (H) DT. 18/06/2004.
EXT.P.3:	COPY OF THE NOTICE NO.3527/10 DT. 24/09/10 ISSUED BY THE R.5. TO THE PETITIONER.
EXT.P.4:	COPY OF THE REPLY DT. 06/11/10 SENT BY THE PETITIONER TO THE R.5.
EXT.P.5:	COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.A.2886/07 DT. 11/01/2010.
EXT.P.6:	COPY OF THE NOTICE NO.C.3527/08 DTD. 14/01/11 ISSUED BY THE R.5. TO THE PETITIONER.
EXT.P.7:	COPY OF THE LETTER DT. 31/01/11 SUBMITTED BY THE PETITIONER BEFORE THE R.5.

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RESPONDENTS' EXHIBITS: NIL.

//TRUE COPY//

P.A. TO JUDGE.

Prv.

P.R. RAMACHANDRA MENON, J.

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========================

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W.P.(C). No. 3988 of 2011

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-------------------------------------------Dated this the 7th day of November, 2013

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JUDGMENT

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The petitioner is challenging the correctness and sustainability of Exts. P3 and P6 demand notices issued to the petitioner asking to satisfy differential cost of 1,43,317/-₹ (Rupees one lakh forty three thousand three hundred and seventeen) in respect of the kerosene supply/sale as a wholesale dealer.

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The sequence of events is as follows:

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The petitioner is a wholesale dealer of Kerosene coming within the jurisdiction of Taluk Supply Officer, Kozhikode. In the course of business, by virtue of the price increase ordered by the Petroleum Company who is supplying kerosene to the persons like the petitioner, demand notice was issued by the Taluk Supply Officer to satisfy the differential cost. A true copy of the notice dated 23.9.2003 asking the petitioner to satisfy a sum of ₹ 1,43,317/- (Rupees one lakh forty three thousand three hundred and seventeen) is produced as Ext.P1. Being aggrieved of Ext.P1

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W.P.C. No.3988 of 2011 -2-

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notice, the petitioner approached this Court by filing W.P.(C)No. 31158/2003, which was allowed as per Ext.P2 judgment dated 18.06.2004 setting aside the impugned notice, placing reliance on the decision rendered by this Court as reported in Taluk Supply Officer v. Prakkottil Brothers (1991 (2) KLT 901). This was upheld by the Division Bench in W.A. Nos. 2555/98 and 1424/99. The case of the petitioner is that, the said verdict has become final as no Appeal or Review Petition has been filed from the part of the State.

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Subsequently, the petitioner was served with Ext.P3 notice dated 24.9.2010 referring to the verdict dated 11.01.2010 passed by the Division Bench of this Court in W.A. No. 2886/07, wherein the power and authority of the State/Department to realise the differential cost has been sustained. A copy of the said verdict has been produced by the petitioner as Ext.P5. It is with reference to the said judgment, that a subsequent notice dated 14.1.2011 by way of Ext.P6 is issued to the petitioner asking to satisfy the due amount. This made the petitioner to approach this Court by way of this writ petition.

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W.P.C. No.3988 of 2011

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-3-

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Heard the learned Government Pleader as well, who submits with reference to the counter affidavit filed by the 2nd respondent that, Ext.P3 and P6 have been issued strictly in conformity with the directions and the observations made by the Division Bench of this Court in Ext.P5, which enables the State/Department to realise the differential cost. Since the law has been declared by the Bench as above, it is equally applicable to all concerned, submits the learned Government Pleader.

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The crucial question to be considered in this case is whether, Ext.P5 judgment or such other judgments referred to therein giving a general declaration as to the legal question could be made use of, for the purpose of realising the amount from the petitioner, more so, when the petitioner was never a party to the said proceedings. On the other hand in so far as the issue is concerned, notice under exactly similar circumstances was issued to the petitioner by way of Ext.P1, which was challenged by the petitioner leading to Ext.P2 judgment, whereby the claim of the petitioner was upheld and the impugned notice was set aside. There is no case for the respondents that Ext.P2 judgment has

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W.P.C. No.3988 of 2011 -4-

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been subjected to challenge either by way of Appeal or by way of Review. As such, the said verdict has become final and in view of the inter-party judgment between the petitioner and the respondents, it is no more open for the respondents to issue any further notice, as in the form of Exts. P3 and P6.

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In the said circumstance, Exts. P3 and P6 demand notices

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stand set aside. The writ petition is allowed. No cost.

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P.R. RAMACHANDRA MENON, JUDGE.

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kp/-

M/S Padma Agencies v. Secretary to the Government and 4 Others

Case brief

What is this about?

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M/S Padma Agencies v. Secretary to the Government and 4 Others

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