Disposed

Commissioner of Excise v. Cochin Tourist Corporation

Kerala HC14 Feb 2020WA/1969/2017

Case brief

AI extract

What is this about?

This appeal challenged a writ petition allowing refund of proportionate bar licence fees denied by the Excise Commissioner. The licensee held a valid renewed license but could not conduct business due to a government land acquisition. The High Court dismissed the appeal, holding it was unjust to deny the refund stipulated in the license conditions given the circumstances.

What did the court decide?

The appeal was dismissed, and the order of the High Court allowing refund of proportionate licence fee was upheld.

Commissioner of Excise Vs Cochin Tourist… — Pension and Retirement Benefits | Kerala HC (2020)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR

¶4

¶5

THE HONOURABLE MR.JUSTICE N.NAGARESH

¶6

FRIDAY, THE 14TH DAY OF FEBRUARY 2020 / 25TH MAGHA, 1941

¶7

WA.No.1969 OF 2017

¶8

AGAINST THE ORDER/JUDGMENT IN WPC 18277/2016 DATED 22-03-2017 OF HIGH COURT OF KERALA

¶9

APPELLANTS/RESPONDENTS IN WP(C):

¶10

COMMISSIONER OF EXCISE, OFFICE OF THE COMMISSIONERATE, THIRUVANANTHAPURAM- 695001

¶11

STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF EXCISE, THIRUVANANTHAPURAM-695001

¶12

BY RENIL ANTO KANDAMKULATHY SR.GOVERNMENT PLEADER

¶13

RESPONDENT/PETITIONER IN WPC

¶14

1 COCHIN TOURIST CORPORATION,

¶15

REP. BY MANAGING PARTNER E.K.UTHAMAN ERNAKULAM JUNCTION RAILWAY STATION ROAD, ERNAKULMA DISTRICT - 682016

¶16

2 ADDL.R2 THE DISTRICT COLLECTOR ERNAKULAM. (ADDL.R2 IS SUO MOTU IMPLEADED AS PER ORDER DATED 28/01/2019)

¶17

R1 BY ADV. SRI.M.K.DILEEP KUMAR

¶18

THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 14.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WA.No.1969 OF 2017

JUDGMENT

C.T.RAVIKUMAR,J

The appellants who were the respondents in W.P.C.No.18277/2016 call in question the judgment passed thereon by the learned Single Judge. The writ petition culminated in the impugned judgment

¶24

was filed by the 1^st respondent herein mainly seeking quashment of Ext.P4 to the extent of denying the refund of licence fee. The following prayers were also sought for:-

¶25

“(i) Declare that the respondents by its own accord granted renewal of the bar licence to the petitioner for the year 2014-2015, with the full knowledge that the bar premises is going to be acquired for the governmental purpose, is not justified in taking the stand that the petitioner alone is responsible for the renewal of the licence and therefore the petitioner is entitled to get the refund of the proportionate licence fee after deducting the fee for the period of 10 days where the petitioner carried out the bar business;

¶26

(ii) Issue a writ of certiorari or such other writ or order quashing the Ext.P4 order to the extent of denying the refund of the licence fee to the petitioner;

¶27

(iii) Issue a writ of Mandamus or such other writ or order directing the respondents to

¶28

WA.No.1969 OF 2017

¶29

refund the licence fee remitted by the petitioner for the year 2014-2015, after deducting the proportionate fee calculated for the period of 10 days wherein the petitioner carried out the bar business;

¶30

(iv) At the event of granting the relief No.III, direct the respondents to pay interest at the rate of 12% upon the amount to be refunded counted from the date of closing of bar business of the petitioner, that is on 11.04.2014.”

¶31

The appellants herein resisted the claims

¶32

and contentions. After appreciating the rival

¶33

contentions, the learned Single Judge passed the

¶34

impugned judgment allowing writ petition with a

¶35

direction to the 1^st respondent therein/the appellant to process the request of the firm under Ext.P3, not withstanding its earlier rejection, and

¶36

to pass appropriate orders, keeping in view the

¶37

observations made in the said judgment. It is

¶38

aggrieved by the said judgment that the captioned appeal has been preferred.

¶39

Heard. The parties are referred to

¶40

hereafter in this judgment in accordance with their

¶41

rank and status in this appeal.

¶42

The facts of the case require a compendious

¶43

¶44

WA.No.1969 OF 2017

¶45

narration for an appropriate disposal. The 1^st respondent is a partnership firm which was running a bar and a restaurant in a rented building. The revenue department acquired the said building as part of Kochi Metro Rail Project in December 2013. On 10.02.2013, according to the 1^st respondent herein/the writ petitioner the said building was seized and sealed, without notice, with the assistance of Police and Excise Officials. Thereafter, the 1^st respondent firm represented to the revenue authorities for permission to exhaust the stock and for running the business until the revenue department requires the building for the Kochi Metro Rail Project. The District Collector acceded to the request and permitted the firm to reopen the shop with a condition that, it should surrender the building as and when it is required. Consequently on 22.12.2013, the shop in question was opened. Since, the revenue authorities did not insist for handing over the building in question the 1^st respondent applied to the Excise department

¶46

¶47

WA.No.1969 OF 2017

¶48

for renewal of the licence. As per Ext.P1, the

¶49

licence was renewed with effect from 01.04.2014, but within a couple of days the 1^st respondent was served with a notice dated 04.04.2014 bearing No.E5-14976/13 on 08.04.2014, requiring to show cause why the bar licence should not be cancelled. It was replied through Annexre-II dated 16.04.2014. The Excise Deputy Commissioner, Excise Division, Ernakulam was informed thereunder that the building in question where the restaurant and bar were functioning, was acquired and an award was passed under the Land Acquisition Act, 1894 on 03.02.2014 and the award as also all the further proceedings are challenged in W.P.(C)No.8945/2014 before this

¶50

Court. It is also stated that in the said

¶51

circumstances, the question whether the 1^st

¶52

respondent firm is liable to be evicted from the building is under consideration of the High Court and therefore, not to cancel the licence as proposed. Since then, for about an year no action was actually taken based on Ext.P1 notice dated

¶53

¶54

WA.No.1969 OF 2017

¶55

04.04.2014. Thereupon, Ext.P2 order of the Commissioner bearing No.XC6-3486/2015 dated 09.03.2015 cancelling the FL3 licence was issued to the petitioner, under Section 26 of the Abkari Act. Feeling aggrieved by the same, the 1^st respondent herein filed Ext.P3 virtually seeking refund of the licence fee at the earliest. True that, thereunder it was also sought for issuance of licence to conduct beer and wine parlour. Ext.P3 was considered by the Commissioner of Excise, the first appellant herein and he passed Ext.P4 order dated 18.08.2015 rejecting the request for refund of the proportionate annual fee. The prayer for grant of FL11 licence was also rejected, but with an observation that if a new building, satisfying all eligible conditions to grant a new FL licence, is available and a new application is submitted for FL3 licence, it would be considered, according to law. As noticed hereinbefore, it is challenging Ext.P4 order and seeking issuance of writ of mandamus commanding the respondents to refund the

¶56

¶57

WA.No.1969 OF 2017

¶58

proportionate licence fee that the writ petition

¶59

was filed. As stated earlier, the same was allowed as mentioned above.

¶60

The learned Government Pleader submitted

¶61

that having formulated the three contingencies specified in paragraph 21 of the impugned judgment, the learned Single Judge went in error in bringing the case on hand under the third contingency and then holding that the first respondent/the writ

¶62

petitioner is entitled to be refunded the proportionate licence fee for the unused period,

¶63

i.e., almost the entire year, save one week. In

¶64

short, according to the appellants the 1^st respondent/writ petitioner is not entitled to get refund of proportionate licence fee. It is the contention that a scanning of the pleadings of the writ petitioner/the first respondent itself would

¶65

reveal that the petitioner firm was guilty of not bringing the factum of seizure and sealing of the building in question to the notice of the licensing authority. It is also submitted that obviously, the

¶66

¶67

WA.No.1969 OF 2017

¶68

first respondent/writ petitioner got Ext.P1 renewed

¶69

without disclosing subsequent developments, as mentioned hereinbefore. Since the writ petitioner

¶70

was guilty of non-disclosure of such facts at the time of renewal of Ext.P1 licence and also failed in seeking cancellation of Ext.P1 licence, which was renewed with effect from 01.04.2014, the petitioner firm is not entitled to get refund of the proportionate licence fee.

¶71

circumstances that incapacitated the writ petitioner from conducting the foreign liquor business in the building in question, despite the receipt of renewal of Ext.P1 licence. As noticed hereinbefore, while the firm was conducting foreign liquor business in the said premises, pursuant to

¶72

the acquisition of the building for Kochi Metro Rail Project, the revenue authorities seized and sealed the building on 10.12.2013. On the request of the writ petitioner firm it was allowed to reopen the shop with a condition that the building

¶73

¶74

WA.No.1969 OF 2017

¶75

should be surrendered as and when required. On 22.12.2013, the shop was reopened and obviously the business was continued till 31.03.2014 and

¶76

thereafter as per Ext.P1, the licence was renewed with effect from 01.04.2014. It was immediately thereafter that notice dated 04.04.2014 proposing cancellation of Ext.P1 licence was issued by the Excise officials. The writ petitioner received the

¶77

same on 08.04.2014. Immediately, the writ

¶78

petitioner/the first respondent filed Annexure II reply dated 16.04.2014. Needless to say that soon thereafter the revenue authorities seized and sealed the premises and the indisputable fact is that from 10.04.2014 onwards, the writ

¶79

petitioner/1^st respondent herein could not conduct foreign liquor business in the building in question on the strength of the renewed licence though it was ultimately cancelled by the first appellant under Section 26 of the Abkari Act, only on 09.03.2015. There is no serious dispute with

¶80

respect to the aforesaid basic facts. True that the

¶81

¶82

WA.No.1969 OF 2017

¶83

appellants would contend that the first respondent herein was guilty of non-disclosure of the entire subsequent developments to the Excise Department.

¶84

The materials on record would reveal that the building where the petitioner firm were running the bar and restaurant was a rented building and the same was acquired by the revenue department as part of Kochi Metro Rail Project. Though the writ petitioner obtained Ext.P1 licence renewed with effect from 01.04.2014, it could not conduct the business from 10.04.2014. It is also taking into account the said facts, which are not disputed and in fact, indisputable that the learned Single Judge considered the entitlement of the writ petitioner/ the first respondent herein, to the relief of refund of proportionate licence fee. The impugned judgment would reveal that, the factual possession obtained in this case was considered by the learned Single Judge and the maxim 'commmodum ex injuria sua nemo habere debet (a wrongdoer should not be

¶85

enabled by law to take advantage from his own

¶86

¶87

WA.No.1969 OF 2017

¶88

actions)carrying the principle of equity as also the provision under Clause 16 of Ext.P1 licence were also applied to the facts, in reaching the conclusions and findings that culminated in the judgment impugned.

¶89

While considering the question whether the impugned judgment invites interference or not it is only worthwhile to refer to paragraph 21 of the impugned judgment, which reads thus:-

¶90

“ 21. Now, from the above discussion three contingencies, hypothetical as they may be, emerge: (1) A licencee disabling himself– say, of his own fault–from using the license; (2) a licencor preventing the licencee–say, through an action declared to be illegal-from using the licence; and (3) a licencee being unable to use the licence for the fault of neither he himself nor the licencor, but because of circumstances beyond the control of both.”

¶91

Thus it is obvious that the learned Single

¶92

Judge on discussion of the factual and legal positions visualised three contingencies and the

¶93

question then was, whether the case on hand falls

¶94

¶95

WA.No.1969 OF 2017

¶96

under which among the said three contingencies. The line of consideration made by the learned Single Judge is evident from the recitals in paragraph 23

¶97

and 24 of the impugned judgment, which read thus:-

¶98

“23. Here the licencee has indisputably failed, without its fault, to use the licence beyond a week's time. The acquiring authorities permitted the Firm only to clear the stock, but it went ahead and had the licence renewed. This does not, to me, appear to be vitiating factor. Equally indisputable is the Firm's not informing the Department about its inability to use the licence. If the march of events had stopped there, this discussion would have ended here, with a predictable outcome: the licencee was not entitled to refund. But it was not to be. If not the Firm, the revenue authorities informed the Department about its sealing the building, and later demolishing it.

¶99

24. Clause 16 of the Ext.P1 licence stipulated that, if a licence is cancelled, “the proportionate amount of the licence fee so remitted shall be refunded.” this clause, in fact, has not specified under what circumstances the proportionate licence fee should be refunded. Put differently, the licencing conditions have not contemplated any

¶100

¶101

WA.No.1969 OF 2017

¶102

penal circumstances to deprive the licencee of the refund.”

¶103

Thus, the impugned judgment would reveal that

¶104

the learned Single Judge ultimately came to the conclusion that it is indeed harsh to inflict on

¶105

the firm the pain of losing the entire licence fee even for the unused period, especially in the light of Clause 16 of Ext.P1. The learned Single Judge also took note of the fact that the firm could not

¶106

run the business from 10.04.2014. The fact that the firm could not run the foreign liquor business from 01.04.2014 onwards despite getting Ext.P1 licence renewed from 01.04.2014 is not disputed before us, also. Clause 16 of Ext.P1 licence referred to in

¶107

the impugned judgment reads thus:-

¶108

“(16) 15 ദ�വസത� ന��ട�സ� ത��ട�ത�� ന�ഷ� എക�സ� �മ�ഷണർക� ഏതത�ര ക�സന�� റദ�ക�വനത� അങത� ത'യന)�ൾ ക�സന��രന അടച ഫ�സ�ത/ ഒര ആനപ�ത��ഭ�ഗ� അയ�ൾക� ത�ര�ച �ലന�ണതമ�ണ�.”

¶109

Going by Clause 16 of Ext.P1, on

¶110

cancellation of the licence, the proportionate

¶111

amount of licence fee shall be refunded to the

¶112

¶113

WA.No.1969 OF 2017

¶114

licencee. What is relevant to note from the aforeextracted Clause 16 is that there is absolute

¶115

absence of and indication of any specified

¶116

circumstances warranting application of the said provision. In other words, it is not discernible from the said Clause as to the circumstances

¶117

demanding refund of proportionate licence to the licencee.

¶118

Taking into account all the aforesaid

¶119

circumstances, we will now proceed to consider the

¶120

merits of the challenge against the impugned judgment. We have already taken note of the fact that the on the basic facts there is no dispute. The building in question where the restaurant and the bar were functioning was acquired by the revenue department as part of Kochi Metro Rail Project. Initially, on 10.12.2013, the revenue authorities seized the building and sealed it. On request of the petitioner, the District Collector permitted the firm to reopen the shop and indisputably the

¶121

firm reopened the shop on 22.12.2013 with

¶122

¶123

WA.No.1969 OF 2017

¶124

conditions. We may hasten to add that no authentic document is available revealing the specific conditions enjoined at that point of time. But the

¶125

fact is that on the strength of Ext.P1 licence, foreign liquor business continued from the said shop upto 31.03.2014 and on application, Ext.P1 licence was renewed with effect from 01.04.2014. There is also no materials available on record revealing the reason or situation that persuaded the Excise Department to issue the notice proposing to cancel Ext.P1 licence on 04.04.2014, immediately after renewing it with effect from 01.04.2014. The learned Government Pleader contented that it is an intimation from the District Collector regarding the acquisition of the building in question that persuaded the Excise Commissioner to issue such a notice dated 04.04.2014. But then, AnnexureI produced by the appellants along with an affidavit dated 23.09.2017, which is a communication from the District Collector, Ernakulam to the Deputy Excise Commissioner, Ernakulam would reveal that it is

¶126

¶127

WA.No.1969 OF 2017

¶128

dated 04.04.2014 and it was received in the office of the Excise Division only on 05.04.2014. True that as per the same, the District Collector intimated the Deputy Excise Commissioner regarding the acquisition of the building in question and also requested an explanation as to why in such circumstances licence was renewed, in respect of the bar in question which belongs to the first respondent herein. When it is reflected from seal affixed on AnnexureI itself that the said notice

¶129

from the District Collector was received in the Excise Division office only on 05.04.2014, and the indisputable fact is that the aforesaid notice bearing No.E5-149-76/13 is dated 04.04.2014 how can it be said that the intimation from the District Collector dated 04.04.2014 is the foundation for issuance of the said notice dated 04.04.2014. If the appellants contend that the said letter dated 04.04.2014 of the District Collector received on 05.04.2014 is the foundation for the aforementioned

¶130

letter dated 04.04.2014 of the Excise Deputy

¶131

¶132

WA.No.1969 OF 2017

¶133

Commissioner, then it can only be taken as the case of proconism viz., anti-dating. Be that as it may, the fact is that after granting renewal of Ext.P1 licence, with effect from 01.04.2014 as per letter dated 04.04.2014, the 1^st respondent/writ petitioner was asked show cause why the bar licence should not be cancelled. According to the writ petitioner, he received it only on 08.04.2014. The copy of the aforesaid letter dated 04.04.2014, handed over for our perusal, by the learned Government Pleader, would indicate that the same was despatched from the office of the Deputy Excise Officer only on 07.04.2014. We referred to the said aspects to indicate that in the said circumstances, the writ petitioner could not be faulted for submitting Annexure II dated 16.04.2014. The building in question was again taken into possession by the revenue authorities only on 10.04.2014. There is

¶134

absolutely no case for the appellants that after the renewal of Ext.P1, with effect from 01.04.2014, the 1^st respondent/writ petitioner continued foreign

¶135

¶136

WA.No.1969 OF 2017

¶137

liquor business from the building in question from

¶138

10.04.2014. In other words, with respect to the fact that from 10.04.2014, the writ petitioner had not conducted foreign liquor business from the building in question is beyond any dispute. The learned Government Pleader contended that though

¶139

there can be no dispute with respect to the said fact, it is equally true that the 1^st respondent/the writ petitioner had not demanded for cancellation of the bar licence till it was cancelled as per Ext.P2 dated 09.03.2015. With reference to the said position and in view of Clause 16 of Ext.P1 it is contended that when that be the position the rejection of the request for refund of proportionate licence fee under Ext.P4 assigning the reason of non-disclosure of the relevant facts

¶140

while obtaining Ext.P1 renewal can only be taken as a sustainable ground for rejecting the request for refund.

¶141

The learned Government Pleader relied on

¶142

the decisions of the Hon'ble Apex Court in State of

¶143

¶144

WA.No.1969 OF 2017

¶145

U.P and others v.Sheopat Rai and others [1994

¶146

Supp(1) SCC 8] and in Chithra and another v. State of Kerala and others [2015 (3) KLT 956] to support

¶147

the challenge made against the judgment of the writ court.

¶148

In Chitra's case application for FL-3

¶149

licence was not considered as a third party filed a suit in which Munsiff's Court granted an interim injunction restraining the Excise Commissioner from issuing licence to the appellant. Ultimately, the Hon'ble Apex Court held that it is not legal to

¶150

demand the annual licence fee for the entire year, despite the truncated period of user by the licensee for none of his faults. In paragraph 5 therein it was held:- “ It is therefore clear that R.14 would not impede or inhibit the charging of annual proportionate fee so long as no failure is

¶151

placed on the licensee or it is blameworthy

¶152

itself.” When that be the dictum we do not find any reason to hold that the impugned judgment invites interference in the light of the said decision.

¶153

¶154

WA.No.1969 OF 2017

¶155

The decision in Sheopat Rai's case is

¶156

relied on to bring out distinction between 'licence fee' and 'fixed fee' and to hold that the amount remitted for getting renewal of Ext.P1 licence is a

¶157

'fixed fee' and hence, demand of refund is unsustainable. Paragraph 28 of the decision itself would reveal that the said contention is untenable as going by the same they are not be leviable as 'fee' and above all, Ext.P1 licence itself provides for refund of proportionate licence fee under Clause 16 thereunder. In such circumstances, the contentions based on the said decision must also fail.

¶158

15.The further contention of the appellants is

¶159

that the first respondent/ the writ petitioner, on receipt of the said letter dated 04.04.2014 submitted Annexure-II carrying a specific request not to cancel the licence and that was why no

¶160

action was taken as proposed under the letter dated 04.04.2014. In that regard, it is to be noted that even after the said letter dated 04.04.2014 Ext.P2

¶161

¶162

WA.No.1969 OF 2017

¶163

order of cancellation of bar licence was issued

¶164

only after about an year, to be precise on 09.03.2015. What exactly is the change in circumstances warranting such an action for

¶165

cancellation of the licence? Certainly, it is not discernible from Ext.P2. In other words, it is

¶166

evident that the circumstances that persuaded the appellants to issue the letter dated 04.04.2014 had continued without any change till 09.03.2015, as regards the Excise Department.

¶167

they received any demand from the writ petitioner to cancel the bar licence after 01.04.2014. In

¶168

other words, on expiry of the period of seven days

¶169

from the date of receipt of letter dated 04.04.2014, in terms of what is stated in Ext.P2,

¶170

such an order could have been passed if the

¶171

appellants really considered it necessary to cancel the same.

¶172

The learned Single Judge evidently applied

¶173

the maxim of equity that echoes the principle as

¶174

¶175

WA.No.1969 OF 2017

¶176

referred hereinbefore. While considering the application of the said principle it is relevant to note certain aspects. The revenue department of the Government initiated acquisition proceedings as part of Kochi Metro Rail Project and acquired the building in question, where the 1^st respondent/writ petitioner was conducting the restaurant and the bar. Though the said building was seized and sealed on 10.12.2013, the undisputed fact is that later it was released to the writ petitioner with permission to reopen the same. The learned Government Pleader

¶177

submitted that the shop was permitted to be reopened solely for the purpose of selling out unused stocks. But at the same time, we could not find any material to substantiate the said contention put forth by the learned Government Pleader. True that the first respondent would admit

¶178

the fact that the District Collector permitted to

¶179

re-open the bar only after obtaining an undertaking that the building would be surrendered on demand. The fact is that though it was seized and sealed on

¶180

¶181

WA.No.1969 OF 2017

¶182

10.12.2013, the building in question was permitted

¶183

to be re-opened and consequently re-opened on 22.12.2013 and the writ petitioner had continued the foreign liquor business from the shop in question till 31.03.2014. That apart, the petitioner firm got renewed Ext.P1 licence with effect from 01.04.2014. The license on its expiry would be renewed by making necessary endorsement on the already issued license. The licence already issued to the writ petitioner is Ext.P1 and it is with proper endorsement on it that it was renewed with effect from 01.04.2014. Despite of our careful scrutiny, we do not find that any specific condition that permission for reopening from 22.12.2013 was granted for the sole purpose of selling out the unused stock or that it is renewed from 01.04.2014 for the purpose of selling out the unused stock. Therefore, it can only be taken that after 22.12.2013, the liquor business continued from the said shop and permission was granted by renewing Ext.P1 licence from 01.04.2014 to continue

¶184

¶185

WA.No.1969 OF 2017

¶186

the said business from the said shop. True that, it

¶187

is thereafter that letter dated 04.04.2014 was issued. If the contention of the appellants is that, it is the receipt of Annexure-II request from the writ petitioner that refrained them from proceeding further with the proposal to cancel Ext.P1 licence, as noticed hereinbefore thereupon no change in the circumstances occurred, for the Commissioner to pass an order on 05.03.2015. When that being the circumstances, we do not find any justification on the part of the appellants to put blame on the writ petitioner/ the first respondent for not making a demand for cancellation of the bar licence and assigned it as a reason to hold that the writ petitioner is not entitled to get refund of proportionate licence fee.

¶188

The learned Government Pleader at this

¶189

juncture submitted that the authorities refrained themselves from proceeding with the proposal made as per the letter dated 04.04.2014, taking into account the request made by the writ petitioner not

¶190

WA.No.1969 OF 2017

¶191

to cancel the licence under Annexure-II. As noticed hereinbefore, there is nothing on record and even

¶192

no case for the appellants that prior to the issuance of Ext.P2 order dated 09.03.2015 cancelling the bar licence, a demand for cancellation of licence was received from the writ petitioner/the first respondent. Learned Government Pleader submitted that the writ petitioner sought for refund of the proportionate licence fee as per Ext.P3. But the fact is that such a request was made by the writ petitioner only on receipt of Ext.P2 order dated 09.03.2015 in and vide Ext.P3 letter. It is the said request that was rejected as per Ext.P4.

¶193

In the writ petition, from the judgment of which this appeal arises, it was specifically stated that the writ petitioner/the first respondent herein did not obtain the possession of the building in question after 11.04.2014 though a suit was filed as O.S.No.726/2014 before the Munsiff's Court, Ernakulam. It is also stated

¶194

¶195

WA.No.1969 OF 2017

¶196

therein that though the Munsiff's Court directed the authorities to deliver back the portion of the building which is remaining outside the acquired land, the District Court, Ernakulam interfered with the order of the Munsiff's Court and thereafter, the order of the District Court was affirmed by this Court. Above all, it is stated that in the absence of prohibitory order the revenue authorities completed the acquisition proceedings and demolished the entire building protruding from

¶197

the acquired portion. Taking the totality of the circumstances revealed from the facts narrated hereinbefore, we do not find any reason to hold that the learned Single Judge had committed an error in coming to the conclusion that the writ petitioner had not contributed anything which would incapacitate him from conducting liquor business from the shop in question. The acquisition was made by one of the departments of the State Government for Kochi Metro Rail Project and it is the said action of the Revenue Department which really

¶198

¶199

WA.No.1969 OF 2017

¶200

incapacitated the petitioner from conducting the business from the shop in question. The fact that the writ petitioner had not specifically intimated that fact to the Excise Department and without disclosing that fact obtained Ext.P1 licence renewed with effect from 01.04.2014 cannot be taken as a reasonable ground that is available to the appellants to be raised against the writ petitioner for denying refund of the proportionate licence fee. The long and short of the discussion is that the impugned judgment cannot be said to be infected

¶201

with any illegality or perversity warranting an interference. In fact, justice is the by-product of the impugned judgment.

¶202

As per Annexure-I dated 04.04.2014 the

¶203

District Collector, after revealing the factum of taking possession of the building in question

¶204

sought for explanation as to under what

¶205

circumstances Ext.P1 licence was renewed. According to the appellants inaction thereafter was solely

¶206

because the first respondent sought not to cancel

¶207

WA.No.1969 OF 2017

¶208

the licence and we ween this could not have been a reason for not taking appropriate action pursuant to the notice dated 04.04.2014, referred hereinbefore, delaying further proceeding till 09.03.2015, for canceling the license as per Ext.P2 and also for refusing to refund the proportionate license fee, in terms of Clause 16 of Ext.P1, in the circumstances obtained in the case on hand.

¶209

In the result, this appeal fails and it is accordingly, dismissed.

Sd/-

C.T.RAVIKUMAR

JUDGE

Sd/-

N.NAGARESH

JUDGE

hmh

Commissioner of Excise v. Cochin Tourist Corporation

Case brief

What is this about?

What did the court decide?

Commissioner of Excise v. Cochin Tourist Corporation

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sreekrishnan O Vs the District Collector

Reghu P.K Vs the District Collector

L.Parameswaran Vs the District Collector

The President Vs the Secretary

Sreekanteswara Kshetra Yogam, Vs State of Kerala

Thankamoni K., Vs Tranvore Devaswom Board