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Judges : MALIMATH,BHASKARAN NAMBIAR
Rajagopalan Nair - Appellant
Versus
Asst.Commissioner of Excise - Respondent
Case No : W.A. No. 641 of 1987
Decided On : 03/15/1989
Advocates Appeared :
S.A. Nagendran; For Appellant Government Pleader Smt. Seemanthini; For Respondents
Remission - Liquor Retail Shop - [Foreign Liquor Retail Shop, Remission, Interim Orders] - The court discussed the appellant's request for remission of kist amount due to being prevented from conducting business by interim orders. The court found that the appellant was not at fault and was precluded from conducting business due to interim orders, and directed the State Government to quantify the remission. The State Government's refusal to grant relief was deemed a misdirection, and the court allowed the appeal, set aside the judgment, and issued a writ of mandamus to the State Government to make appropriate orders for remission.
Fact of the Case:
The appellant, a successful bidder for a foreign liquor retail shop, was prevented from conducting business for almost half a year due to interim orders by the court. The appellant sought remission of the kist amount due to being precluded from conducting business.
Finding of the Court:
The court found that the appellant was not at fault and was precluded from conducting business due to interim orders. The State Government's refusal to grant relief was deemed a misdirection. The court allowed the appeal, set aside the judgment, and issued a writ of mandamus to the State Government to make appropriate orders for remission.
Issues: The main issue was the appellant's request for remission of the kist amount due to being prevented from conducting business by interim orders.
Ratio Decidendi: The court held that where a court has passed an interim order resulting in injustice, it is bound to undo that injustice as far as possible. The State Government's refusal to grant relief was deemed a misdirection, and the court directed the State Government to quantify the remission for the appellant.
Final Decision: The appeal was allowed, the judgment was set aside, and a writ of mandamus was issued to the State Government to make appropriate orders for remission. The respondents were restrained from making any recovery of the kist amount from the appellant.
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:
20-4-1983 to 23-4-1983 17-5-1983 to 25-8-1983 17-9-1983 to 21-9-1983 16-1-1984 to 31-1-1984
Thus the appellant could not conduct the business for 180 days which is almost half the year, not on account of any violation on the part of the appellant or on account of any fault on his part, but because he was injuncted by this court from considering the business in the premises. The last writ petition, O.P.No.8000 of 1983, was dismissed by a Division Bench of this Court on 10th January, 1984, when the appellant made a request to the court to make a direction to the State Government to give proportionate remission with regard to the payment of kist during the period during which he was prevented from conducting the business on account of the interim orders made by this Court in the three writ petitions, referred to above. Dealing with the said contention, the Division Bench observed as follows:
"This is a matter in which the 5th respondent (the present appellant) can make a representation to the first respondent-State. There is no reason why the first respondent should not grant relief to him".
It is in pursuance of this observation that the appellant made a representation to the State Government as per Ext.P14 dated 28-1-1984. The said representation came to be rejected by the State Government by its order Ext.P.15 dated 21-2-1984. The Government took the view that the closing of the shop was not due to any fault of the Government and that the order of injunction granted by the Court was occasioned by reason of the appellant having located the shop in an objectionable site. It was further held that as the problem was the creation of the appellant himself he has to bear the consequences. It is in this background that the appellant approached this Court in O.P.No.1682 of 1984. The learned Single Judge felt that there is no good ground to interfere and dismissed the writ petition. Hence this appeal.
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
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