Kerala High Court
Binu Jose vs State Of Kerala on 28 February, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
TUESDAY, THE 28TH DAY OF FEBRUARY 2023 / 9TH PHALGUNA, 1944
RP NO. 1073 OF 2022
AGAINST THE JUDGMENT IN WA 2458/2016 OF HIGH COURT OF KERALA
REVIEW PETITIONERS/APPELLANTS IN WA:
1 LAZAR CHAKKOLA, AGED 51 YEARS
S/O GEORGE CHACKOLA, MISSION QUARTERS, FATHIMA
NAGAR, TRISSUR-5 -680 005.
2 A. KOMALAVALLI, AGED 60 YEARS, W/O NARAYANAN KUTTY,
GEETHA NIVAS, AMBAL, VALIYAKUNNU P.O., VALANCHERRY,
MALAPPURAM DISTRICT, - 676 552.
3 M. ARAVINDAKSHAN, AGED 65 YEARS
S/O KESHAVAN NAIR, MALAYATIL HOUSE, ADHAVANAD,
MALAPPURAM DISTRICT - 679 571.
4 K. VIJAYAN, AGED 67 YEARS
S/O PADMANABHAN NAIR, LEKSHMI, PARAMBILANGADI,
KOTTAKKAL, MALAPPURAM DISTRICT - 676 503.
5 LIJO CHACKOLA, AGED 47 YEARS
S/O GEORGE CHACKOLA,CHAKOLA HOUSE,MISSION QUARTERS,
FATHIMA NAGAR, THRISSUR 5 - 680 005.
6 B. PUSHPAVALLY, AGED 70 YEARS, W/O K. NANDANAN,
"ANJALI", THATTAMALA P.O., KOLLAM-691 010.
7 T. M. SETHUMADHAVAN, AGED 73 YEARS,
S/O.BALAKRISHNAN NAIR, MAVANCHERRY HOUSE, THANNUR,
MALAPPURAM DISTRICT - 676 302.
8 P. MOIDEEN, AGED 63 YEARS, S/O KUNHI MOIDEEN.,
PUNNAKKODAN HOUSE, PALACHIRAMAD, PERUMANNA,
EDARIKODE P.O., MALAPPURAM DISTRICT - 676 501.
9 K. VASANTHA KUMARI, AGED 66 YEARS
W/O JANARDHANAN, MALAYATHIL HOUSE, ATHAVANAD P.O.,
VIA. THIRUVANAYA, MALAPPURAM DISTRICT - 676 301.
10 K. VIJESH KALLANGAT, AGED 41 YEARS
S/O JANARDHANAN, MALAYATHIL HOUSE, ATHAVANAD P.O.,
VIA. THIRUVANAYA, MALAPPURAM DISTRICT - 676 301.
R.P.No.1073 of 2022 in W.A.No.2458 of 2016 &
R.P.No.1074 of 2022 in W.A.No.2412 of 2016
2
11 JITHESH KALLANGAT, AGED 38 YEARS
S/O JANARDHANAN, MALAYATHIL HOUSE, ATHAVANAD P.O.,
VIA. THIRUVANAYA, MALAPPURAM DISTRICT - 676 301.
12 DIVYA M, AGED 35 YEARS
D/O JANARDHANAN, MALAYATHIL HOUSE, ATHAVANAD P.O.,
VIA. THIRUVANAYA, MALAPPURAM DISTRICT - 676 301.
BY ADVS.
A.SUDHI VASUDEVAN (SR.)
JOSE JONES JOSEPH
RESPONDENTS/RESPONDENTS IN WA:
1 THE STATE OF KERALA, REPRESENTED BY SECRETARY TO
GOVERNMENT, TAXES (A) DEPARTMENT, SECRETARIATE,
THIRUVANANTHAPURAM - 695 001.
2 THE COMMISSIONER OF EXCISE,
EXCISE COMMISSIONERATE, PUBLIC OFFICE BUILDING,
THIRUVANANTHAPURAM - 695 001.
3 G. SUDARSANAN PILLAI, AGED 63 YEARS
S/O GOPALA PILLAI, AMMACHI VEEDU, KAIKULANGARA
WARD, KOLLAM -12,- 691 012.
4 K. SUDHAKARAN, AGED 54 YEARS
S/O PADMANABHAN NAIR, VIKKATH HOUSE, INDIANNORE
POST, KOTTAKKAL, MALAPPURAM DISTRICT - 676 503.
5 SHIBU. K, AGED 46 YEARS
S/O KRISHNAN CHETTIAR, THILAK LIONS NAGAR, HOUSE
NO. 16, MUNDAKKAL P.O., KOLLAM-691 001.
6 BINU JOSE, S/O JOSE MATHEW, MANAKKATU HOUSE, PALA
P.O., PIN688 978.
OTHER PRESENT:
T.K.VIPINDAS- SR.G.P, SUMATI DANDAPANI(SR.)
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
28.02.2023 ALONG WITH R.P.NO.1074 OF 2022, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
R.P.No.1073 of 2022 in W.A.No.2458 of 2016 &
R.P.No.1074 of 2022 in W.A.No.2412 of 2016
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
TUESDAY, THE 28TH DAY OF FEBRUARY 2023 / 9TH PHALGUNA, 1944
RP NO. 1074 OF 2022
AGAINST THE JUDGMENT IN WA 2412/2016 OF HIGH COURT OF KERALA
REVIEW PETITIONER/APPELLANT IN WA:
BINU JOSE, AGED 51 YEARS , S/O JOSE MATHEW,
MANAKKATU HOUSE, PALA P.O.,KOTTAYAM. PIN 688 978.
BY ADV SHILPA SATHISH
RESPONDENTS/RESPONDENTS IN WA:
1 STATE OF KERALA, REPRESENTED BY SECRETARY TO
GOVERNMENT, TAXES (A) DEPARTMENT, SECRETARIATE,
THIRUVANANTHAPURAM - 695 001.
2 THE COMMISSIONER OF EXCISE, EXCISE COMMISSIONERATE,
PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM - 695
001.
3 G. SUDARSANAN PILLAI, AGED 63 YEARS, S/O GOPALA
PILLAI, AMMACHI VEEDU, KAIKULANGARA WARD, KOLLAM
-12,- 691 012.
4 LAZAR CHAKKOLA, AGED 51 YEARS,S/O GEORGE CHACKOLA,
MISSION QUARTERS, FATHIMA NAGAR,TRISSUR-5, 680 005.
5 A. KOMALAVALLY, AGED 60 YEARS, W/O NARAYANAN KUTTY,
GEETHA NIVAS, AMBAL, VALIYAKUNNU P.O., VALANCHERRY,
MALAPPURAM DISTRICT, - 676 552.
6 M. ARAVINDAKSHAN, AGED 65 YEARS,S/O KESHAVAN
NAIR,MALAYATIL HOUSE, ADHAVANAD,MALAPPURAM DISTRICT
- 679 571.
7 K. VIJAYAN, AGED 67 YEARS,S/O PADMANABHAN
NAIR,LEKSHMI, PARAMBILANGADI, KOTTAKKAL, MALAPPURAM
DISTRICT - 676 503.
R.P.No.1073 of 2022 in W.A.No.2458 of 2016 &
R.P.No.1074 of 2022 in W.A.No.2412 of 2016
4
8 K. SUDHAKARAN, AGED 54 YEARS, S/O PADMANABHAN NAIR,
VIKKATH HOUSE, INDIANNORE POST, KOTTAKKAL,
MALAPPURAM DISTRICT - 676 503.
9 LIJO CHACKOLA, AGED 47 YEARS, S/O GEORGE CHACKOLA,
CHAKOLA HOUSE,MISSION QUARTERS, FATHIMA
NAGAR,THRISSUR 5 - 680 005.
10 B. PUSHPAVALLY, AGED 70 YEARS, W/O K. NANDANAN,
"ANJALI" THATTAMALA P.O., KOLLAM-691 010.
11 T. M. SETHUMADHAVAN, AGED 73 YEARS, S/O
BALAKRISHNAN NAIR, MAVANCHERRY HOUSE, THANNUR,
MALAPPURAM DISTRICT - 676 302.
12 P. MOIDEEN, AGED 63 YEARS, S/O KUNHI MOIDEEN,
PUNNAKKODAN HOUSE, PALACHIRAMAD, PERUMANNA,
EDARIKODE P.O., MALAPPURAM DISTRICT - 676 501.
13 SHIBU. K, AGED 46 YEARS, S/O KRISHNAN CHETTIAR,
THILAK LIONS NAGAR, HOUSE NO. 16, MUNDAKKAL P.O.,
KOLLAM-691 001.
14 K. VASANTHA KUMARI, AGED 66 YEARS, W/O JANARDHANAN,
MALAYATHIL HOUSE, ATHAVANAD P.O., VIA. THIRUVANAYA,
MALAPPURAM DISTRICT - 676 301.
15 K. VIJESH KALLANGAT, AGED 41 YEARS, S/O
JANARDHANAN, MALAYATHIL HOUSE, ATHAVANAD P.O., VIA.
THIRUVANAYA, MALAPPURAM DISTRICT - 676 301.
16 JITHESH KALLANGAT, AGED 38 YEARS, S/O JANARDHANAN,,
MALAYATHIL HOUSE, ATHAVANAD P.O., VIA. THIRUVANAYA,
MALAPPURAM DISTRICT - 676 301.
17 DIVYA M, AGED 35 YEARS, D/O JANARDHANAN, MALAYATHIL
HOUSE, ATHAVANAD P.O., VIA. THIRUVANAYA, MALAPPURAM
DISTRICT - 676 301.
T.K.VIPINDAS- SR.G.P, SUMATI DANDAPANI(SR.)
OTHER
PRESENT:
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
28.02.2023 ALONG WITH R.P.NO.1073/2022, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
R.P.No.1073 of 2022 in W.A.No.2458 of 2016 &
R.P.No.1074 of 2022 in W.A.No.2412 of 2016
5
K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ
------------------------------------
R.P.No.1073 of 2022 in W.A.No.2458 of 2016 and
R.P.No.1074 of 2022 in W.A.No.2412 of 2016
--------------------------------------
Dated this the 28th day of February, 2023
O R D E R
Vinod Chandran,J.
The two review petitions arise from the
rejection of W.A.Nos.2412/2016 and 2458/2016. Both
the writ appeals were rejected by reason of the
rejection of two other writ appeals arising from the
common judgment; W.A.Nos.1711/2015 and 1862/2015 by
order dated 11.11.2016.
2. On the brief facts, it has to be noticed that,
three writ petitions were filed for different
reliefs alleging a partnership between the various
parties and refuting it. There were altogether 14
partners initially, which at various times were
R.P.No.1073 of 2022 in W.A.No.2458 of 2016 &
R.P.No.1074 of 2022 in W.A.No.2412 of 2016
reduced by modifications, retirement and so on and
so forth, with which, we are not essentially
concerned at this point since we are only looking at
the review petitions filed. W.P(C).No.25716/2012
was filed by Binu Jose, one of the alleged partners,
claiming change of ownership of the building
existing in a property, in which, the partnership
firm was allegedly carrying on a hotel and a bar
with license. The claim for change of ownership of
building was made before the Panchayath, which
declined it on the premise that essentially a civil
suit has to be filed for declaration of title, since
one of the alleged partners Sudarsanan Pillai, the
title holder of the property, claimed that the sale
deed was the result of undue coercion and fraud.
W.P(C).No.18343/2013 was filed against refusal to
renew the FL-3 licence on the ground of a
partnership having been constituted without the
sanction of the Commissioner of Excise as per Rule
13B; especially since the FL-3 licence was obtained
R.P.No.1073 of 2022 in W.A.No.2458 of 2016 &
R.P.No.1074 of 2022 in W.A.No.2412 of 2016
in the sole name of Sudarsanan Pillai.
W.P(C).No.18343/2013 challenged the order refusing
renewal and also sought for restoration of the FL-3
licence in the name of the partnership firm.
W.P(C).No.17826/2013 was filed by Sudarsanan Pillai
against the refusal to renew the FL-3 licence in his
name.
3. The learned Single Judge found that the question
regarding the ownership of the property was pending
in arbitration proceedings and hence, the same would
have to be agitated in such proceedings and not
before this Court. W.P(C).No.25716/2012 was
dismissed. In W.P(C).Nos.18343/2013 and 17826/2013,
the cancellation issued by the Excise Commissioner
and the revisional order confirming the same was
interfered with. There was a direction to reconsider
the issue and pass appropriate orders within a
period of three months.
4. Appeals were filed by different partners as
W.A.Nos.1711/2015 and 1862/2015 only against the
R.P.No.1073 of 2022 in W.A.No.2458 of 2016 &
R.P.No.1074 of 2022 in W.A.No.2412 of 2016
order in W.P(C).No.17826/2013. The Division Bench
which considered the appeal found that, such appeals
cannot be considered in isolation especially when
the same question was considered in
W.P(C).No.18343/2013 filed by Binu Jose. The
Division Bench dismissed the appeals on 11.11.2016.
Much later to that, Binu Jose and the other partners
filed two separate writ appeals, W.A.Nos.2412/2016
and 2458/2016 on 15.12.2016. The said writ appeals
were also dismissed finding the other two writ
appeals from the common judgment having been
dismissed earlier; from which judgment the present
review petitions arise. There is no appeal from
W.P(C).No.25716/2012, which none of the parties
thought it fit to appeal, since there were
arbitration proceedings initiated which is now
concluded.
5. The Honourable Supreme Court in Civil Appeals
filed from the judgment in W.A.Nos.1711/2015 and
1862/2015 set aside the same and directed the writ
R.P.No.1073 of 2022 in W.A.No.2458 of 2016 &
R.P.No.1074 of 2022 in W.A.No.2412 of 2016
appeals to be considered on merits. At this point,
review petitions were filed, which dismissed the
appeals from W.P(C).No.18343/2012. We are of the
opinion that, especially in view of the
reconsideration directed by the Honourable Supreme
Court, it is only proper that the review petitions
are allowed and the writ appeals are restored to the
files of this Court. The review petitions hence
stand allowed and the writ appeals restored to the
files of this Court.
Sd/-
K.VINOD CHANDRAN
JUDGE
Sd/-
C.JAYACHANDRAN
JUDGE
Sbna/
