Kannur Building Materials ... vs State Of Kerala
2022 Latest Caselaw 5385 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
         THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
  FRIDAY, THE 20TH DAY OF MAY 2022 / 30TH VAISAKHA, 1944
                       WP(C) NO. 2407 OF 2012
PETITIONER/S:

               KANNUR BUILDING MATERIALS (MARKETING) CO-
               OPERATIVE SOCIETY LTD.
               AGED 36 YEARS
               NO.C.1741,P.O.PAPPINISSERY, KANNUR-670561,
               REP.BY ITS SECRETARY.
               BY ADVS.
               SRI.P.RAVINDRAN (SR.)
               SMT.APARNA RAJAN


RESPONDENT/S:

    1          STATE OF KERALA
               REP.BY ITS SECRETARY, DEPARTMENT OF FISHERIES
               & PORTS, GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM-695001
    2          THE SENIOR PORT CONSERVATOR
               AZHEEKAL PORT OFFICE, AZHEEKKAL, P.O.,AZHIKODE,
               KANNUR DIST-670009
    3          THE DIRECTOR OF PORTS
               NEW CORPORATION BUILDING, THIRUVANANTHAPURAM-
               695033
    4          THE DISTRICT COLLECTOR
               KANNUR -670001
               BY ADV ADVOCATE GENERAL OFFICE KERALA
OTHER PRESENT:

               SMT.VIDYA KURIAKOSE, GP


        THIS    WRIT   PETITION     (CIVIL)    HAVING    COME    UP    FOR
ADMISSION       ON   20.05.2022,    THE     COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
                                                     -2-
W.P.(C). No. 2407 of 2012



                            P.V.KUNHIKRISHNAN, J.
                            ======================================================

                              W.P.(C) No.2407 of 2012
                        =============================================================

                     Dated this the 20th day of May, 2022

                                         JUDGMENT

The above writ petition is filed with following prayers:

i) Call for the records leading to Exhibits P12 demand notice and quash the same by issue a writ in the nature of certiorari or any other writ, order or direction.

ii) Issue any other such writ, order or direction as this Hon'ble Court may deem fit and necessary in order to meet the ends of justice on the facts and in the circumstances of the instant case.

iii) Award the costs of this case to the petitioner." (Sic)

2. The petitioner is a Cooperative Society. This writ

petition is filed aggrieved by Ext.P12 demand notice issued by

the 2nd respondent requiring the petitioner to remit an amount of

Rs.6,45,000/- towards loss incurred by the Government due to

the short remittance of dredging fee. According to the

petitioner, the said demand is without the authority of law and

has been issued without considering the fact that a suit is filed

W.P.(C). No. 2407 of 2012

by the petitioner as OS No.389/2010 before the Sub Court,

Thalassery for a decree for refund to the excess amount

collected by the respondents is pending. According to the

petitioner, the amount is due to the petitioner.

3. Heard the learned counsel for the petitioner and the

learned Government Pleader.

4. When this writ petition came up for consideration,

the counsel for the petitioner submitted that the suit filed by the

petitioner is dismissed and the petitioner filed an appeal before

this Court and the same is pending as RFA No.38 of 2015.

5. The learned Government Pleader, based on the

instructions from the 2nd respondent, submitted that what is

stated in Exts.P2 and P5 are one and the same. Since the matter

is pending before this Court in an appeal filed by the petitioner,

I think consideration of the same on merit may prejudice the

W.P.(C). No. 2407 of 2012

contentions of the petitioner in the civil appeal. Now the

revenue recovery proceedings are initiated by the authority to

recover the amount due from the petitioner. On the other hand,

the petitioner in the appeal raised a contention that the

petitioner is entitled refund of certain amount already paid.

This writ petition is pending before this Court from 30.01.2012

onwards. This Court admitted this writ petition and stayed the

recovery proceedings on 31.01.2012. The interim order is in

force even now. According to me, this writ petition need not be

retained indefinitely. Since the appeal is pending before this

Court as RFA No.38 of 2015, I think the revenue recovery

proceedings can be deferred till the final decision is taken in

RFA.

Therefore, this writ petition is disposed of in the following

manner:

W.P.(C). No. 2407 of 2012

1. The revenue recovery based on Ext.P12 is deferred till the RFA No.38 of 2015 is disposed of by this Court.

2. Respondents are free to proceed with Ext.P12, based on the final decision in RFA No.38 of 2015, in accordance to law.

3. All the contentions of the petitioner in this writ petition are left open.

sd/-

P.V.KUNHIKRISHNAN JUDGE das

W.P.(C). No. 2407 of 2012

APPENDIX OF WP(C) 2407/2012

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE CIRCULAR DATED 1.11.2004 ISSUED BY THE PORT OFFICER, KOZHIKODE Exhibit P2 TRUE COPY OF THE DEMAND NOTICE DATED 14.09.2009 Exhibit P3 TRUE COPY OF THE INFORMATION DATED 13.10.2009 ISSUED BY THE INFORMATION OFFICER Exhibit P4 TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT DATED 28.11.2007 Exhibit P5 TRUE COPY OF THE GOVERNMENT ORDER DATED 23.02.2008 Exhibit P6 TRUE COPY OF THE LETTER DATED 23.10.09 Exhibit P7 TRUE COPY OF THE REPLY DATED 26.10.2009 Exhibit P8 TRUE COPY OF THE TABLE SHOWING THE ACTUAL AMOUNT PAYABLE AND THE AMOUNT ILLEGALLY COLLECTED BY THE 2ND RESPONDENT Exhibit P9 TRUE COPY OF THE LAWYER NOTICE DATED 05.04.2010 Exhibit P10 TRUE COPY OF THE REPLY DATED 06.05.2010 Exhibit P11 TRUE COPY OF THE PLAINT SUBMITTED BY THE PETITIONER BEFORE THE SUB COURT THALASSERY IN OS NO.389/10 07.10.2010 Exhibit P12 TRUE COPY OF THE DEMAND NOTICE DATED 30.12.2011.