Kerala High Court
Kallu Shop Licensees’ Association vs State Of Kerala on 30 September, 2024
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
2024:KER:72541
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
MONDAY, THE 30TH DAY OF SEPTEMBER 2024 / 8TH ASWINA, 1946
WP(C) NO. 30857 OF 2023
PETITIONER/S:
1 JAYAPRAKASH,
AGED 73 YEARS
S/O.DAMOARAN, ARISSERIL HOUSE, VELLASERY, KADUTHURUTHY
VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT, PIN - 686604
2 PRASAD,
AGED 70 YEARS
S/O.DAMODARAN, ARISSERIL HOUSE, VELLASSERY,
KADUTHURUTHY VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT,
PIN - 686604
BY ADVS.
M.G.KARTHIKEYAN
NIREESH MATHEW
RESPONDENT/S:
1 STATE OF KERALA,
REP. BY SECRETARY, TAXES (A) DEPARTMENT, GOVT.
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
2 THE EXCISE COMMISSIONER,
COMMISSIONERATE OF EXCISE, EXCISE HEAD QUARTERS,
NANDVANAM, THIRUVANANTHAPURAM, PIN - 695033
3 THE DEPUTY COMMISSIONER OF EXCISE,
EXCISE DIVISION OFFICE, EXCISE TOWER, DURGA NAGAR,
KENATHUPARAMBU, KUNNATHOORMEDU, PALAKKAD, PIN - 678001
4 THE DEPUTY COMMISSIONER OF EXCISE,
EXCISE DIVISION OFFICE, KACHERIPADY, ERNAKULAM, PIN -
682018
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5 THE CIRCLE INSPECTOR OF EXCISE,
EXCISE CIRCLE OFFICE, OPP. NORTH RAILWAY STATION,
ERNAKULAM, KOCHI, PIN - 682018
SRI.S.GOPINATHAN-SR.GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
30.09.2024, ALONG WITH WP(C).31731/2023, 32191/2023, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
2024:KER:72541
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
MONDAY, THE 30TH DAY OF SEPTEMBER 2024 / 8TH ASWINA, 1946
WP(C) NO. 31731 OF 2023
PETITIONER/S:
1 KALLU SHOP LICENSEES' ASSOCIATION,
AGED 57 YEARS
REG.NO.EKM/TC/354/2016, MUNJAPILLY BUILDINGS,
PROVIDENCE ROAD, KOCHI, REPRESENTED BY ITS SECRETARY,
AJITH BABU V.K. S/O.KOTTAN, RESIDING AT ACHOOS',
MOWANCHERRY P.O, KANNUR DISTRICT, PIN - 682018
2 C.N.SUDHAKARAN,
AGED 75 YEARS
S/O.NARAYANA PILLAI (LATE), KALAMAKUDY HOUSE,
PULLUVAZHY P.O, ERNAKULAM DISTRICT,(LICENSEE OF TODDY
SHOPS IN GROUP NO.II OF PERUMBAVOOR EXCISE RANGE), PIN
- 683541
3 GIGIMOL V.R.
AGED 45 YEARS
W/O.BINU SUDHAKARAN, KALAMAKUDY HOUSE,PULLUVAZHY P.O,
ERNAKULAM DISTRICT,(LICENSEE OF TODDY SHOPS IN GROUP
NO.IX OF PERUMBAVOOR EXCISE RANGE), PIN - 683541
4 REJI T.R.,
AGED 50 YEARS
S/O.V.V.RAGHAVAN, THURUTHUKANDATHIL HOUSE, PULLUVAZHY
P.O, ERNAKULAM DISTRICT,(LICENSEE OF TODDY SHOPS IN
GROUP NO.XI OF PERUMBAVOOR EXCISE RANGE), PIN - 683541
5 SAJU S.,
AGED 51 YEARS
S/O.SREEDHARAN NAIR (LATE), VAZHAKUZHACKAL HOUSE,
VALAYANCHIRANGARA P.O, ERNAKULAM DISTRICT, (LICENSEE OF
TODDY SHOPS IN GROUP NO.XII OF PERUMBAVOOR EXCISE
RANGE), PIN - 683556
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BY ADVS.
M.G.KARTHIKEYAN
NIREESH MATHEW
RESPONDENT/S:
1 STATE OF KERALA,
REP. BY SECRETARY, TAXES (A) DEPARTMENT, GOVT.
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
2 THE EXCISE COMMISSIONER,
COMMISSIONERATE OF EXCISE, EXCISE HEAD QUARTERS,
NANDVANAM, THIRUVANANTHAPURAM, PIN - 695033
3 THE DEPUTY COMMISSIONER OF EXCISE,
EXCISE DIVISION OFFICE, EXCISE TOWER,DURGA NAGAR,
KENATHUPARAMBU,KUNNATHOORMEDU, PALAKKAD, PIN - 678001
4 THE DEPUTY COMMISSIONER OF EXCISE,
EXCISE DIVISION OFFICE, KACHERIPADY,ERNAKULAM, PIN -
682018
5 THE DEPUTY COMMISSIONER OF EXCISE,
EXCISE DIVISION OFFICE, 1ST FLOOR, EXCISE COMPLEX,
CHINNAKKADA, KOLLAM, PIN - 691001
6 THE DEPUTY COMMISSIONER OF EXCISE,
EXCISE DIVISION OFFICE, DEVSWOM BOARD BUILDING,
PATHANAMTHITTA, PIN - 689645
7 THE DEPUTY COMMISSIONER OF EXCISE,
EXCISE DIVISION OFFICE, EXCISE COMPLEX,IRON BRIDGE P.O,
NEAR GENERAL HOSPITAL, ALAPPUZHA, PIN - 688011
8 THE DEPUTY COMMISSIONER OF EXCISE
EXCISE DIVISION OFFICE, EXCISE COMPLEX, THODUPUZHA EAST
P.O, IDUKKI., PIN - 685585
9 THE DEPUTY COMMISSIONER OF EXCISE
EXCISE DIVISION OFFICE, 2ND FLOOR, CIVIL STATION,
AYYANTHOLE, THRISSUR., PIN - 680003
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0 THE DEPUTY COMMISSIONER OF EXCISE
EXCISE DIVISION OFFICE, CIVIL STATION, MALAPPURAM., PIN
- 676505
11 THE DEPUTY COMMISSIONER OF EXCISE
EXCISE DIVISION OFFICE, GROUND FLOOR, CIVIL STATION
P.O, KOZHIKODE., PIN - 673020
12 THE DEPUTY COMMISSIONER OF EXCISE
EXCISE DIVISION OFFICE, 1ST FLOOR, MUNDERI TOWER,
KALPETTA P.O, WAYANAD., PIN - 673121
13 THE DEPUTY COMMISSIONER OF EXCISE
EXCISE DIVISION OFFICE, CIVIL STATION, 1ST BLOCK,
VIDYANAGAR, KASARAGOD., PIN - 671123
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
30.09.2024, ALONG WITH WP(C).30857/2023 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2024:KER:72541
WP(C) Nos.30857/2023,31731/2023,32191/2023
6
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
MONDAY, THE 30TH DAY OF SEPTEMBER 2024 / 8TH ASWINA, 1946
WP(C) NO. 32191 OF 2023
PETITIONER/S:
1 SUDHEESH K.B,
AGED 50 YEARS
S/O.BUDHADAS, KANIYAMPARAMBIL HOUSE, KARAMUCK,
KANDASSANKADAVU P.O, THRISSUR DISTRICT, (LICENSE OF
TODDY SHOPS IN GROUP NO.II OF CHAVAKKAD EXCISE RANGE),
PIN - 680613
2 LALAN P,
AGED 50 YEARS
S/O.PADMABHAN,PUNNAVELY, KOMALAPURAM, AVALOORKUNNU P.O,
SOUTH ARYAD, KOMALAPURAM VILLAGE, AMBALAPPUZHA TALUK,
ALAPPUZHA DISTRICT. (LICENSE OF TODDY SHOPS IN GROUP
NO.XIV OF ALAPPUZHA EXCISE RANGE), PIN - 688006
3 M.R.GOPALA KRISHNAN,
AGED 64 YEARS
S/O.RAGHAVAN, MALATHARA HOUSE, NEDUMUDY P.O, KUTTANADU
TALUK, ALAPPUZHA DISTRICT,(LICENSE OF TODDY SHOPS IN
GROUP NO.V OF KUTTANAD EXCISE RANGE), PIN - 688505
4 SIVANANDAN K.S.,
S/O.SUKUMARAN, MOOSARAYIL HOUSE, VAIKOM P.O, KOTTAYAM
DISTRICT. (LICENSE OF TODDY SHOPS IN GROUP NO.IV OF
VAIKOM EXCISE RANGE), PIN - 686141
5 V.N.SAJIMON.,
AGED 59 YEARS
S/O.NARAYANAN, THANNIKKAL HOUSE, PAYYAPPADY P.O,
PUTHUPPALLY, KOTTAYAM DISTRICT. (LICENSE OF TODDY SHOPS
IN GROUP NO.II OF PAMPADY EXCISE RANGE), PIN - 686011
6 KISHOR VISWANATH.,
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AGED 34 YEARS
S/O.VISWANADHAN, VELLIMADOM HOUSE, THIRUVANCHOOR P.O,
KOTTAYAM DISTRICT. (LICENSE OF TODDY SHOPS IN GROUP
NO.II OF PAMPADY EXCISE RANGE), PIN - 686019
7 P.K.SUKUMARAN.,
AGED 73 YEARS
S/O.RAGHAVAN, PAZHUPARAMBIL HOUSE, POOTHAKUZHY P.O,
PAMBADY, KOTTAYAM DISTRICT. (LICENSE OF TODDY SHOPS IN
GROUP NO.IV OF PAMPADY EXCISE RANGE), PIN - 686521
8 LAILA SIVARAMAN,
AGED 65 YEARS
D/O.SIVARAMAN, AJAYA BHAVAN, MUKKALI P.O,KOTTAYAM
DISTRICT. (LICENSE OF TODDY SHOPS IN GROUP NO.IV OF
PAMPADY EXCISE RANGE), PIN - 686503
9 VIJISH VIJAYAN,
AGED 42 YEARS
S/O. P.K.VIJAYAN, NISHA BHAVAN, PANGADA P.O, KOTTAYAM
DISTRICT. (LICENSE OF TODDY SHOPS IN GROUP NO.IV OF
PAMPADY EXCISE RANGE), PIN - 686502
0 K.K.SUNILKUMAR,
AGED 54 YEARS
S/O.KARUNAKARAN, KUNNAKKATTU HOUSE, PARIYARAM P.O,
KOTTAYAM DISTRICT.(LICENSE OF TODDY SHOPS IN GROUP
NO.IV OF PAMPADY EXCISE RANGE), PIN - 686021
11 SHEEJA K.D,
W/O.SALIMON, MAAKKAL HOUSE, VAZHOOR P.O, KOTTAYAM
DISTRICT. (LICENSE OF TODDY SHOPS IN GROUP NO.IV OF
PAMPADY EXCISE RANGE), PIN - 686504
12 C.K.SHAJI,
AGED 57 YEARS
S/O.KRISHNAN NAIR, CHERIYIL HOUSE, PAMPADY P.O,
KOTTAYAM DISTRICT. (LICENSE OF TODDY SHOPS IN GROUP
NO.V OF PAMPADY EXCISE RANGE), PIN - 686502
13 MANOJ K.K,
AGED 47 YEARS
S/O.VASU, ACHANKALAYIL HOUSE, ERIKADU P.O, KOTTAYAM
DISTRICT. (LICENSE OF TODDY SHOPS IN GROUP NO.V OF
PAMPADY EXCISE RANGE), PIN - 686011
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14 P.S. SATHEESH KUMAR,
AGED 50 YEARS
S/O SIVANKUTTY, SREENILAYAM HOUSE, CHERPUNKAL P O,
KOTTAYAM DISTRICT.(LICENSE OF TODDY SHOPS IN GROUP
NO.VI OF PAMPADY EXCISE RANGE), PIN - 686584
15 K.K.VISU,
AGED 58 YEARS
S/O.KRISHNAN, KAVULLAT HOUSE, PADUVA P.O, KOTTAYAM
DISTRICT. (LICENSE OF TODDY SHOPS IN GROUP NO.VII OF
PAMPADY EXCISE RANGE), PIN - 686564
16 SATHEESAN M.T,
AGED 53 YEARS
S/O.THANKAPPAN, JAYA BHAVAN HOUSE, KANJIRAMATTOM P.O,
KOTTAYAM DISTRICT.(LICENSE OF TODDY SHOPS IN GROUP
NO.VII OF PAMPADY EXCISE RANGE), PIN - 686585
17 SHIBUMON K.S,
AGED 47 YEARS
S/O.SIVAN, KOLLAMPARAMBIL HOUSE, VAZHOOR P.O, KOTTAYAM
DISTRICT. (LICENSE OF TODDY SHOPS IN GROUP NO.VII OF
PAMPADY EXCISE RANGE), PIN - 686504
18 ANUMON M.V,
AGED 40 YEARS
S/O.K.V. VASU , MUNDOKULATH HOUSE, KOTHALA P.O,
KOTTAYAM DISTRICT. (LICENSE OF TODDY SHOPS IN GROUP
NO.VIII OF PAMPADY EXCISE RANGE), PIN - 686502
19 JYOTHILAL,
AGED 52 YEARS
S/O.A.T.KARUNAKARAN, VAKATHANATHU HOUSE,ELAMBALLI P.O,
KOTTAYAM DISTRICT. (LICENSE OF TODDY SHOPS IN GROUP
NO.X OF PAMPADY EXCISE RANGE), PIN - 686503
BY ADVS.
M.G.KARTHIKEYAN
NIREESH MATHEW
RESPONDENT/S:
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9
1 STATE OF KERALA,
REP. BY SECRETARY, TAXES (A) DEPARTMENT, GOVT.
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695011
2 THE EXCISE COMMISSIONER,
COMMISSIONERATE OF EXCISE, EXCISE HEAD QUARTERS,
NANDVANAM,THIRUVANANTHAPURAM, PIN - 695033
3 THE DEPUTY COMMISSIONER OF EXCISE,
EXCISE DIVISION OFFICE, EXCISE TOWER,DURGA NAGAR,
KENATHUPARAMBU,KUNNATHOORMEDU, PALAKKAD, PIN - 678001
4 THE DEPUTY COMMISSIONER OF EXCISE
EXCISE DIVISION OFFICE, 2ND FLOOR, CIVIL STATION,
AYYANTHOLE, THRISSUR, PIN - 680003
5 THE DEPUTY COMMISSIONER OF EXCISE,
EXCISE DIVISION OFFICE, EXCISE COMPLEX,IRON BRIDGE P.O,
NEAR GENERAL HOSPITAL, ALAPPUZHA, PIN - 688011
6 THE DEPUTY COMMISSIONER OF EXCISE,
EXCISE DIVISION OFFICE, COLLECTORATE P.O,KOTTAYAM, PIN
- 686002
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
30.09.2024, ALONG WITH WP(C).30857/2023 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2024:KER:72541
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JUDGMENT
The present writ petitions have been filed by the licencees
of Toddy shops in different Excise range in Ernakulam division.
The licences were issued on preferential basis from 2007 onwards.
The period of licence got expired on 30.09.2023.
2.The petitioners were transporting toddy to their shops
from Palakkad District as per the permit obtained under Rule 11A
of the Tree Tax Rules. The permit for transporting the toddy is
issued on six monthly basis, i.e., 1 st April to 30th September and 1st
October to 31st March in a financial year. At the relevant time, i.e.,
01.04.2021 to 30.09.2021, the permit fee was Rs.1 per litre and the
petitioners had paid in advance the said permit fee of Rs.1 per liter
for transporting the toddy to their respective shops from Palakkad
District. After completion of the first half of the financial year i.e.,
01.04.2021 to 30.09.2021, the petitioners were issued the next
permit for rest of the financial year i.e., 01.10.2021 to 31.03.2022
for transporting the toddy to their respective toddy shops from
Palakkad District, for which they had remitted the permit fee of
Rs.1 per litre.
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3.The Government has amended the Tree Tax Rules , 1959,
vide the notification dated 23.10.2021. These rules were published
on 23.10.2021 itself. The Rules were amended in exercise of the
powers conferred on the Government by Sections 18 and 19 of the
Abkari Act. Vide the amended Rules, the additional fee of Rs.1 per
litre for toddy transport from one division to another division has
been levied on the petitioners.
4.On the strength of these amended rules, the petitioners
had been issued impugned notices, demanding the additional fee of
Rs.1 per litre for transporting the toddy from one division to
another for the entire financial year i.e., 01.04.2021 to
31.03.2022.
5.The learned counsel for the petitioner submits that the
petitioners had already deposited the fee at the rate of Rs.1 per
litre as per the relevant Rules in existence and the amended rules
do not have the retrospective operation in respect of the concluded
contract between the parties. Therefore, the demand of the
additional fees of Rs.1 per litre for toddy transported from one
division to another division from the petitioners are without the
authority of law, in violation of Article 265 of Constitution of the
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India. He therefore, submits that the impugned demand is totally
illegal as well as arbitrary, same is liable to be set aside.
6.On the other hand, Adv. S Gopinathan, the learned
Senior Government Pleader submits that, the petitioners are bound
by the rules and even by the amended rules as per the terms of the
contract between the parties. He further submits that the amended
rules were promulgated on 23.10.2021 and therefore, from the
said date, the petitioners are liable to pay additional fee of Rs.1 per
litre on the toddy transported by them. However, in respect of the
toddy already transported i.e., up to 30.09.2009, the learned
Senior Government Pleader does not have much to substantiate, in
respect of the demand raised for the said period .
7.I have considered the submissions advanced.
The statutory rule, unless specifically provide that they will
have the retrospective operation cannot be given retrospective
effect to by the executive. The amended rules were promulgated
on 23.10.2021 and therefore, they would come into force from the
said date. In respect of the concluded contract for which the
petitioners have already paid the fee of Rs.1 per litre, the rules
could not have been given effect to.
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In view thereof, the demand raised for additional fee of
Rs.1 per litre, in respect of the contract entered into between the
parties before 23.10.2021, is not justified. The impugned demands
for additional fee of Rs.1 per litre from the petitioners for transport
of the Toddy for the financial year 2021-2022 is therefore set aside
and the writ petitions are allowed. The petitioners are however,
liable to pay the additional fee from 01.04.2022 onwards.
The writ petitions are allowed as above.
Sd/-
DINESH KUMAR SINGH
JUDGE
SJ
2024:KER:72541
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APPENDIX OF WP(C) 31731/2023
PETITIONER EXHIBITS
Exhibit-P1 TRUE PHOTOCOPY OF THE LIST OF MEMBERS OF THE
1ST PETITIONER ASSOCIATION.
Exhibit-P2 TRUE PHOTOCOPY OF THE NOTIFICATION, GO(P)
NO.104/2021/TD DATED 23.10.2021 ISSUED BY THE
GOVT.
Exhibit-P3 TRUE PHOTOCOPY OF THE LETTER DATED 08.09.2023
ISSUED BY THE DEPUTY COMMISSIONER OF EXCISE,
PALAKKAD TO ALL THE DEPUTY COMMISSIONERS OF
EXCISE.
Exhibit-P4 TRUE PHOTOCOPY OF THE INTERIM ORDER DATED
20.09.2023 IN WP(C)NO.30857/2023 PASSED BY
THIS HON'BLE COURT.
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APPENDIX OF WP(C) 32191/2023
PETITIONER EXHIBITS
Exhibit-P1 TRUE PHOTOCOPY OF THE NOTIFICATION, GO(P)
NO.104/2021/TD DATED 23.10.2021 ISSUED BY THE
GOVT.
Exhibit-P2 TRUE PHOTOCOPY OF THE LETTER DATED 08.09.2023
ISSUED BY THE DEPUTY COMMISSIONER OF EXCISE,
PALAKKAD TO ALL THE DEPUTY COMMISSIONERS OF
EXCISE.
Exhibit-P3 TRUE PHOTOCOPY OF THE INTERIM ORDER DATED
27.09.2023 IN WP(C)NO.31731/2023 PASSED BY
THIS HON'BLE COURT.
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APPENDIX OF WP(C) 30857/2023
PETITIONER EXHIBITS
Exhibit-P1 TRUE PHOTOCOPY OF THE NOTIFICATION, GO(P)
NO.104/2021/TD DATED 23.10.2021 ISSUED BY THE
GOVT. OF KERALA.
Exhibit-P2 TRUE PHOTOCOPY OF THE NOTICE NO.E.C-
28/2023(8) DATED 20.06.2023 ISSUED TO THE
PETITIONERS BY THE 5TH RESPONDENT.
Exhibit-P3 TRUE PHOTOCOPY OF THE REPLY DATED 30.06.2023
SENT TO THE CIRCLE INSPECTOR OF EXCISE,
ERNAKULAM/5TH RESPONDENT.
Exhibit-P4 TRUE PHOTOCOPY OF THE LETTER ISSUED BY THE
3RD RESPONDENT DATED 08.09.2023 TO ALL THE
DEPUTY COMMISSIONERS OF EXCISE.
RESPONDENT EXHIBITS
Exhibit R2(b) True copy of the Govt letter No.
G1/50/2023/Taxes Department dated 20.05.2023
Exhibit R2(a) True copy of the agreement executed by the
petitioners with the Government in Form III
as per Rule 5(16) of the Kerala Abkari Shops
Disposal Rules 2002
