CIVIL APPEAL NO.2246JUDGMENTOF 2006
1 This Appeal calls into question a brief Judgment passed on 21.7.2005 by
the Division Bench of the High Court of Kerala in W.A. No. 910 of 2000
reversing the detailed Judgment of the learned Single Judge. The question that
has been raised pertains to the Appellant’s entitlement to pay proportionate
annual rental for the year 1999-2000, instead of full annual fee of 13 lakhs
which was applicable for that year in respect of an FL3 licence granted to her.
2. The Division Bench took note of Rule 14 of the Foreign Liquor Rules
which reads thus:
“If any of the licences referred to in Rule 13 is granted in the
course of a financial year, the full annual fee shall be paid and the
licence shall expire at the end of the financial year”.
On the reading of the said Rule, the Division Bench opined that it was not
permissible for any licensee to claim only proportionate payment on the
predication that it had been disabled from utilizing the licence for the full period
because of third party intervention. Accepting the Appeal, the Appellant was
permitted to pay the balance of the entire fee after adjusting the sum already
paid, within three weeks, in which event the Respondent would not be
permitted to claim interest on belated payments. It is the admitted case that in
order to avail of this indulgence and advantage the balance amount has been
duly paid. However, the legality of the demand to pay the fee for the entire year, despite the truncated period of user by the Appellant for no fault
ascribable to her is what has been brought into question before us.
3 We have commented on the brevity of the impugned Judgment for the
reason that the learned Single Judge of the Kerala High Court in O.P. No. 18145
of 1994 had, in its detailed Judgment, considered various legal aspects
including the topicality of the maxim ‘Actus curiae neminem gravabit’, that an
act of Court prejudices no one, as well as the pronouncement of this Court in
R.Vijaykumar v. Commissioner of Excise 1993(4) SCALE 386, which
indubitably held the field and was facially in favour of the Appellant. It seems
to us that the attention of the Division Bench was not drawn to this binding
precedent, since otherwise its conclusion would in all likelihood have been
diametrically different.
4 The facts are neither disputed nor are they convoluted. The Appellant
had submitted an application on 16.3.1990 for the grant of an FL3 licence in
respect of her Hotel Chanakya at Trivandrum, which had been granted.
However, it transpired that a third party filed a suit in which the Munsif Court,
Trivandrum granted an interim injunction restraining the Excise Commissioner
from issuing the said licence to the Appellant for user at her said Hotel. This
suit, along with another suit similar to it, was eventually dismissed on
29.9.1993. In an ensuing Appeal, the District Judge granted an ad interim
injunction on 15.4.1994, which came to be vacated on 3.6.1994. On 23.11.1994, the Respondent rejected the Appellant’s application for the FL3
licence due to an amendment to the Foreign Liquor Rules which had resulted in
private parties being ineligible for FL3 licences. Consequently, the Appellant
filed O.P. no. 18145 of 1994, which was allowed by the Single Judge. Acting in
accordance with the Single Judge’s directions the Excise Commissioner granted
the licence and raised a demand of only the proportionate licence fee which was
duly deposited; but the matter was brought before the Division Bench in the
subject Appeal. As already mentioned, it seems most likely that the attention of
the Division Bench which passed the impugned Judgment was not brought to
bear on the already existing binding decisions in R.Vijaykumar as well as
Jayadevan v. Board of Revenue (Excise) 1999 (1) KLJ 87 wherein the Division
Bench of the High Court of Kerala has held that the licensee is required to pay
only the proportionate licence fee if the delay in granting the licence, or
utilizing it, as the case may be, are for reasons not attributable to the said
licensee.
5 We are in agreement with the learned senior counsel for the Appellant
that the legal principle to the effect that no person can be prejudiced because of
an act of a Court is apposite and relevant in the present case. We say this
keeping in perspective the position that although the Appellant had applied for
the FL3 licence which would ordinarily run the course of one financial year,
due to interim orders passed by the Courts, the Appellant could only utilize it for a fraction of that JUDGMENTperiod. We hasten to clarify that the Appellant’s
application was not made in the duration of that year and was thus initially not
for a fraction of the financial year. This Court has already held in
R.Vijaykumar, in the circumstances prevailing in that case, that the
Department could not interfere with the utilization of the FL3 licence, provided
that the licensee complied with all other conditions as well as “payment of
annual rental proportionately”. It is therefore clear that Rule 14 would not
impede or inhibit the charging of annual proportionate fee so long as no failure
is placed on the licensee or it is blameworthy itself. We must be quick to clarify
that in the event that a party applies for a period which is obviously not
effective for the entire financial year, such as applying for a licence mid-way
that financial year, the full fee for that year may be claimable or chargeable and,
therefore, would have to be paid. In other words, had the Appellant applied for
the licence even with the knowledge that because of external factors such as a
pre-existing injunction order etc., she would not have been able to exploit it for
the entire year, she may not have been liable to pay the licence fee for the entire
year. This is not the factual matrix which obtains in the case at hand; the
licence could only be granted for the period from 21.12.1999 to 31.3.2000, i.e.
till the close of that financial year, owing to unforeseeable circumstances
beyond the ken and control of the parties before us. We have already made a
mention of the Division Bench Judgment delivered in Jayadevan which in turn was referred to in another Division Bench Judgment in Rajagopalan Nair v. Assistant Commissioner of Excise 1989 (1) KLT 800, wherein the Division
Bench directed that the licensee was entitled to remission of payment of kisht
because of being disabled to conduct its business on account of the interim
orders passed by the Court. We affirm the conclusions arrived at in these
decisions. We hold that a party is entitled to seek a remission in the payment of
licence fee if it is precluded from transacting business on the strength of that
licence because of factors and reasons extraneous to it and/or if it is granted the
licence on the direction of a Court for only a portion of the financial year.
6 The Appeal is accordingly allowed. The Respondent State shall, within
six weeks from today, refund to the Appellant the balance amount of
9,41,257/- together with interest thereon at the rate of six per cent per annum
with effect from 11.8.2005. Failure to do so shall render the Respondent
State liable to refund the aforementioned sum of 9,41,257/- together with
interest at the rate of twelve per cent per annum calculated from 11.8.2005 till
the date of payment and also additionally liable for payment of costs quantified
at 15,000/- (Rupees fifteen thousand only).
CIVIL APPEAL NO.4900 OF 2006
7 The facts that arise in this Appeal are somewhat complex in comparison
to Chitra’s foregoing Appeal. The Appellant had been granted an FL3 licence for its Hotel Hackoba at JUDGMENTErnakulam for the period ending on 31.3.2001. Due
to a dispute with its landlord it had to vacate its premises; and on locating to
another, it applied for the renewal of the licence on 26.2.2002. This was
obviously for the immediately succeeding year 1.4.2001 to 31.3.2002. The
Excise Commissioner rejected the application for renewal on 4.9.2002 on the
ground that the licence had become defunct; a decision which was upheld by
the State Government. In these circumstances, the Appellant successfully
approached the High Court of Kerala which issued a direction to the State
Government to issue the licence within two weeks. The Single Judge
simultaneously directed the Appellant to pay the licence fee for the years
2001-2002 and 2002-2003 by his Judgment dated 27.1.2003. The Appellant
preferred an Appeal, and on the first day of its hearing, the Division Bench
passed an ad interim Order directing the Appellant to pay 15 lakhs. Shortly
after making this payment, on 25.3.2003, the licence was renewed. The
Division Bench of the High Court of Kerala noted Rule 14 of the Foreign
Liquor Rules as well as the fact that it had not been challenged. The Division
Bench accepted the argument of the Appellant that for the reason that it could
not utilize the licence for the year 2001-2002 as its application had been
disallowed it was not liable to pay any fee; viz. during this period it was
prevented by extraneous elements and factors from utilizing the licence.
However, the Division Bench held that since the licence was renewed in March 2003, even though the JUDGMENTAppellant could conduct its business for less than a fortnight in that licence year, nevertheless the Appellant was liable to pay the
full fee for the year 2002-2003. It is these circumstances which have
constrained the Appellant to file the present Appeal before us.
8 In order to eradicate any possibility of misunderstanding our present
Judgment, we hasten to clarify that had the Appellant’s application for renewal
of the FL-3 licence found approval instead of rejection on 4.9.2002, the
Appellant would have been liable to pay the entire fee for the year 2001-2002.
This is so for the simple reason that there was no third party interference or
intervention which led to the non-utilization of that licence for the previous
portion of that year; it may be reiterated that the Appellant had to locate fresh
premises. However, after 4.9.2002, the Appellant cannot be held responsible in
any way for the non-utilization of the licence up to the date it was eventually
renewed i.e. 25.3.2003.
9 On the predication of the legal analysis and discussion in Civil Appeal
No. 2246 of 2006 (supra), we are of the opinion that the Appellant is only liable
to pay the proportionate licence fee for the period in which it could avail of the
licence, that is 25.3.2003 to 31.3.2003. It would be fair to cogitate upon
whether the Appellant should have declined the licence for virtually a week in
that year, and since it failed to exercise that option, whether it should be
burdened with the fee for the full year. It seems to us that any person placed in the position of the Appellant would not be in a position to decline to accept the
renewal of the licence even though it was for less than a fortnight, since that
would have led to the licence being rendered defunct; which may have then led
to consequence of disentitlement for grant or renewal of the FL3 licence in the
future.
10 The Appeal is accordingly allowed. The Respondents are directed to
recalculate the proportionate amount of licence fee due and payable by the
Appellant for the period from 25.3.2003 to 31.3.2003. The amount of refund
shall carry interest at the rate of six per cent per annum from the date of its
payment due till the date of its refund. This exercise should be completed
within two months from today. Failure to make this payment within this period
will render the Respondents liable to pay the interest at the rate of twelve per
cent per annum, instead of six per cent, as directed above, and in addition
thereto, the Respondents shall be liable to pay to the Appellant the costs
quantified at 15,000/- (Rupees fifteen thousand only), which amount shall be
deposited with the Supreme Court Advocates Welfare Fund.
New Delhi,August 21 , 2015. JUDGMENT