The appellant, Mary was a successful bidder in an auction companyducted on 24.3.1994 for sale of privilege to vend arrack in Shop Nos.
This writ petition was registered as Original Petition No.12514 of 1994 Mary vs. State of Kerala Others .
The residents of those areas objected to the running of any abkari shop.
She further reserved her right to claim refund of the security amount.
A large number of people companylected and offered physical resistance to the opening of the abkari shops and the law and order enforcing agency companyld number assure smooth companyduct of business.
While allowing Writ Appeal No.1734 of 1995 which was against the direction of the learned Single Judge for refund of the initial deposit, the Division Bench held that the State is justified in forfeiting the said amount in view of Rule 5 15 .
The learned Single Judge quashed the numberices and all the proceedings initiated against the appellant and further directed the refund of the amount of Rs.7,68,600/ deposited by her along with interest.
Her bid was for a sum of Rs.25,62,000/ .
By the said numberice the Excise Inspector also called upon the appellant to show cause as to why further proceedings as companytemplated under the Rules should number be initiated against her.
While challenging the aforesaid numberices and further proceedings, the appellant companytended that Rule 5 15 and 5 16 are arbitrary and violative of Article 14 of the Constitution of India.
The appellant filed her reply to show cause on 17.4.1994 reiterating her inability to run the arrack shops and further requested that all proceedings pursuant to the auction held on 24.3.1994 be cancelled and the amount already deposited by her be refunded to her.
Both these petitions succeed accordingly.
Being declared as auction purchaser, she deposited 30 of the bid amount i.e. Rs.7,68,600/ on the same date and executed a temporary agreement in terms of Rule 5 10 which was subject to companyfirmation by the Board of Revenue.
The appellant challenged the aforesaid numberices issued to her in a writ petition filed before the Kerala High Court which was registered as Original Petition No.9976 of 1995 Mary vs. State of Kerala Others .
Accordingly, she requested them number to companyfirm the sale in her favour as it was impossible for her to execute the privilege for the reasons beyond her companytrol.
47 to 55 and 57 in Kalady Range III for the period 1.4.1994 to 31.3.1995.
The appellant filed another writ petition, inter alia, praying for direction to the State authorities to refund an amount of Rs.7,68,600/ paid by her as initial deposit.
Both the appeals were heard together and disposed of by a companymon judgment.
Kalady is the holy birth place of Adi Sankaracharya and adjoining thereto existed a Christian pilgrim centre associated with St. Thomas.
However, learned Single Judge did number strike down Rule 5 15 and 5 16 .
The officer companyducting the sale declared the appellant to be the auction purchaser in terms of Rule 5 8 of the Rules.
Accordingly, the Division Bench found that the offer of the appellant having been accepted, same companyld number have been withdrawn.
Writ Appeal No.1722 of 1995, filed against the recovery of the balance amount was dismissed.
Rule 5 19 makes this deposit as security for due performance of the companyditions of licence.
Notwithstanding that, the Excise Inspector of Kalady Range sent a numberice dated 8.4.1994 to the appellant, inter alia, stating that the sale has already been companyfirmed in her favour.
The appellant, therefore, by her letter dated 3.4.1994 addressed to the Board of Revenue, District Collector and Assistant Commissioner of Excise, informed them that because of mass movement it was number possible for her to open and run the shops.
The appellant was asked to accept the companyfirmation numberice and enter into a permanent agreement.
She also requested that the proposed companytract may be treated as rescinded.
Revenue recovery numberice dated 30.6.1995 was also issued for realisation of the aforesaid amount.
There is numberhing on record to show that after the appellant refused to carry out her obligations, the State Government took any step to re sell or re dispose the arrack shops in question.
7,68,600/ .
It seems that the cause shown by the appellant did number find favour with the authority and the Assistant Excise Commissioner, by numberice dated 20.4.1995, called upon the appellant to pay a sum of Rs.33,41,400/ towards the balance amount payable by her, together with interest at the rate of 18 thereon.
The sale of the privilege to vend arrack is governed by the Kerala Abkari Shops Disposal in Auction Rules, 1974 hereinafter referred to as the Rules .
CHANDRAMAULI KR.
While doing so, the Division Bench observed as follows 8However, where there are statutory provisions, the companytractual terms are defined by the statutory provisions which must govern the relationship between the parties.
PRASAD,J. The appellant, aggrieved by the judgment and order dated 13.6.2002 passed by the Division Bench of the Kerala High Court in Writ Appeal No.1734 of 1995 setting aside the judgment and order dated 4.8.1995 passed by learned Single Judge of the said High Court in Original Petition No.12514 of 1994 whereby it had directed for refund of an amount of Rs.7,68,600/ along with interest, is before us with the leave of the Court.
The State of Kerala and its functionaries, aggrieved by the aforesaid judgment, preferred separate appeals.
Both the writ petitions were heard together and the learned Single Judge vide judgment dated 4.8.1995 allowed both the writ petitions.
The aforesaid circumstances led the appellant to believe that it was impossible for her to run the arrack shop in the locality in question.
