Madras High Court
State Of Tamilnadu vs Aranthai Annadurai @ M.Duraikannu on 3 January, 2020
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
S.A.No.300 of 2003
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03.01.2020
CORAM
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
S.A.No.300 of 2003
1.State of Tamilnadu
rep. by District Collector,
Pudukkottai.
2.The Divisional Excise Officer,
Aranthangi and Taluk,
Pudukkottai District. ... Appellants
Vs.
Aranthai Annadurai @ M.Duraikannu ... Respondent
PRAYER: Second Appeal is filed under Section 100 of C.P.C.,
praying to set aside the decree and Judgment of the learned
Principal District Judge, Pudukkottai, dated 18.04.2002 in A.S.No.
113 of 2001 and reversing the judgment and decree, dated
22.06.2001 in O.S.No.462 of 1997 on the file of the District Munsif
Court, Aranthangi.
For Appellants : Mr.N.Shanmugaselvam
Additional Government Pleader
For Respondent : Mr.K.Baalasundaram
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S.A.No.300 of 2003
JUDGMENT
As against the reversing judgment of the First Appellate Court, the present second appeal came to be filed. While admitting this appeal, the following substantial questions of law have been framed:
“1.Whether the lower Appellate Court was right in not considering the question of law that the appellants and respondent are governed by the provisions of Tamil Nadu Prohibition (Appeal and Revision) Rules 1983?
2.Whether the lower Appellate Court was right in following the above appeal when section 56(a) & (b) r/w Tamil Nadu Prohibition Act 1983 and Tamil Nadu Prohibition (Appeal and Revision) Rules 1983, the Civil Court jurisdiction is ousted ?
3.Whether the lower Appellate Court was right in granting permanent injunction against the recovery when the appellants are duty bound to recover the due ?” 2/14 http://www.judis.nic.in S.A.No.300 of 2003
2.The brief facts leading to filing of the appeal is as follows:
2.1.The plaintiff was a successful bidder of a toddy shop, which was auctioned on 08.07.1972 and the lease period of the toddy shop was one year ie., from 01.09.1972. The monthly rent of Rs.660/- was payable to the Government of Tamil Nadu by the Plaintiff for the toddy shop No.4 at Karambakudi Village, Aranthangi Taluk. The plaintiff has paid two months kist amount of Rs.1320/- to the defendants. Apart from that, he has also paid a sum of Rs.200/- as deposit for participation in the toddy shop auction and Rs.100/- paid as a branch licence fee. It is also stated by the plaintiff that after the auction, one Mr.Ponnambalam, politically influenced person was also become a successful bidder in respect of shop No.13 at Chidambaraviduthy Village. The plaintiff also requested the authorities to permit him to locate the toddy shop No.4 at Chidambaraviduthy Village. However, his request was not considered and the plaintiff's toddy shop sale was affected due to the illegal sale performed by the toddy shop owner bearing No.13 at Chidambaraviduthy Village. In view of another shop in the same village, the plaintiff's business was affected and he has decided to stop the toddy shop No.4. However, the 2nd 3/14 http://www.judis.nic.in S.A.No.300 of 2003 defendant issued notice on 29.08.1997 to pay a sum of Rs.4,282/-
as notional loss for not running the toddy shop No.4 at Karambakudi Village. It is the case of the plaintiff that there is no agreement between the parties to invoke the provisions of Revenue Recovery Act, 1864, to recover the notional loss. Hence, the suit has been filed to declare the notice dated 29.08.1997 as illegal and void.
2.2. The defendants 1 and 2 resisted the suit on the ground that the plaintiff had become a successful bidder of the toddy shop No.4 at Karambakudi Village at Aranthangi Taluk for the excise year 1972 – 1973 on the monthly rent of Rs.660/-. The plaintiff had made a request to put up a shed in Chidambaraviduthy Village. However, his request was rejected and licence was issued only in the area namely, Karambakudi Village. The plaintiff's further request to have a branch shop at Chidambaraviduthy Village is also rejected. The plaintiff has paid the rent only for two months. Afterwards, he closed the toddy shop. Therefore, notice was issued for recovery of notional loss amount of Rs.1320/-, along with interest at the rate of 9% p.a.. The appeal filed by the plaintiff before the Collector was also rejected. Thereafter, he also filed a suit in O.S.No.54 of 1997 on the file of the District Munsif Court, 4/14 http://www.judis.nic.in S.A.No.300 of 2003 Aranthangi. Then, excise notice was issued on 03.03.1986 to remit the loss amount of Rs.4,282.75 p. Hence, prayed for dismissal of the suit.
3. Based on the above pleadings, after framing proper issues, the trial Court dismissed the suit. On appeal, the First Appellate Court allowed the appeal on the ground that without giving any sufficient opportunity, the notional loss cannot be determined under Revenue Recovery Act and decreed the suit by setting aside the decree and judgment of the Trial Court, as against which, the present second appeal came to be filed and admitted on the substantial questions of law referred to above.
4. The learned Additional Government Pleader vehemently submitted that the notice sought to be challenged in the suit is issued by the Excise Officer under Tamil Nadu Prohibition Act and notice was never issued under Revenue Recovery Act. Admittedly, the auction was conducted and the plaintiff became a successful bidder and entered into an contract and got a contract in his favour and he paid two months rent also. The licence was issued for specific area of Karambakudi Village, whereas the plaintiff has requested to have a shop shifted to 5/14 http://www.judis.nic.in S.A.No.300 of 2003 Chidambaraviduthy Village which was rejected by the authorities. The appeal filed by the plaintiff is also failed. Hence, his contention is that when any auction is taken under Tamil Nadu Prohibition Act, Civil Court jurisdiction is ousted under Section 56-B of Tamil Nadu Prohibition Act. Hence, his contention is that the First Appellate Court has proceeded with the matter in a different angle and allowed the appeal. Hence, he prayed for allowing this appeal.
5. Whereas, the learned Counsel for the respondent submitted that the impugned notice issued by the second defendant claiming the notional amount is only under Revenue Recovery Act. Therefore, without giving any opportunity determining such notional amount is against the well settled proposition of law. Such being the position, the First Appellate Court's view is well balanced and according to law it does not require any interference. It is also submitted that in similar nature of the case, this Court vide judgment dated 18.11.2016 in State of Tamil Nadu rep. By its Collector, North Arcot District at Vellore and two others Vs. R.D.Munusamy Gounder and seven others, has held that Section 56-A and 56-B of Tamil Nadu Prohibition Act not barred the jurisdiction of the Civil Court. Hence, he prayed for dismissal of the appeal.
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6. I have perused the entire materials.
7. It is not in dispute that the plaintiff was a successful bidder for toddy shop No.4 at Karambakudi Village. It is also an admitted fact that monthly rent is Rs.660/- p.m. The period of lease is one year ie., from 1972 – 1973. The licence also issued in favour of the plaintiff for running the toddy shop No.4 at Karambakudi Village. The plaintiff himself made a request to shift the shop or to have a branch at Chidambaraviduthy Village. In respect of the same village, another successful bidder is also awarded and given a licence. These are all the facts admitted. The impugned notice is marked as Ex.A.1. On perusal, Ex.A.1 indicated that the notice was issued by the second defendant / Excise Officer, Aranthangi for recovery of a sum of Rs.4,282/- and requested to remit the amount failing which they will initiate a proceedings under Revenue Recovery Act. Admittedly, the contract has been concluded between the parties. In this case, licence has been granded. In fact, two months rent has been paid. Thereafter, the plaintiff suddenly closed the toddy shop and in such circumstances, the department has initiated action for recovery of loss on the basis of monthly rent. It is noted that Ex.A.1 was not issued under Revenue Recovery Act. It is only a notice issued to pay the amount failing 7/14 http://www.judis.nic.in S.A.No.300 of 2003 which recovery proceedings will be initiated (it indicates that failing to pay the amount, recovery proceedings will be initiated under Revenue Recovery Act). On reading of the entire Ex.A.1 makes it clear that in fact, no action was initiated under the Revenue Recovery Act. Only pre-notice was issued to initiate action under the Revenue Recovery Act. Therefore, the question of giving an opportunity to fix the value at that point of time did not arise at all. Question of issuing notice without giving an opportunity to the parties will arise only when the proceedings has been initiated under the Revenue Recovery Act and followed by the appeal remedy under the Excise Act. It is to be noted that the second defendant issued notice for recovery of the amount under Tamil Nadu Prohibition Act and all the toddy shops are covered under the Tamil Nadu Prohibition Act and Rules specified therein. Sections 56-A and 56-B of Tamil Nadu Prohibition Act reads as follows :
“56-A. Injunctions not to be granted in respect of sums payable in consideration of the grant of any privilege or fee on licences for manufacture, etc.-
Notwithstanding anything contained in the Code 8/14 http://www.judis.nic.in S.A.No.300 of 2003 of Civil Procedure, 1908 (Central Act V of 1908) or in any other law for the time being in force, no Court shall grant any permanent or temporary injunction or make any interim order restraining any proceeding which is being or about to be taken for,-
(i) the recovery of any sum or fee or both levied in consideration of the grant of any exclusive or other privilege under this Act or the rules made thereunder or any fee including vend fee or any duty levied by or under this Act or the rules made thereunder;
(ii) the grant of any privilege under Section 17-C or licence under Section 17-B. 56-B. Bar of jurisdiction of Civil Courts.- No Civil Court shall have jurisdiction in respect of any matter which the Commissioner or other Officer or the Tamil Nadu State Marketing Corporation Limited or other authority empowered by or under this Act has to determine and no injunction shall be granted by 9/14 http://www.judis.nic.in S.A.No.300 of 2003 any court in respect of any action taken or to be taken by such Commissioner, Officer, Corporation or other authority in pursuance of any power conferred by or under this Act.”
8. A careful perusal of the above provision of law makes it clear that Civil Court jurisdiction is totally barred in respect of any action taken the Commissioner or other Officer of Tamil Nadu State Marketing Corporation Limited or any other authority empowered by above Act and no injunction shall be granted by any Court in respect of any action taken or to be taken by such Commissioner, Officer, Corporation of other authority in pursuance of any power conferred by the above Act. Such being the position, this Court is of the view that the First Appellate Court has proceeded the entire issue on the premise that the proceeding has already initiated under Revenue Recovery Act and allowed the appeal. Such approach is not according to law.
9. It is further to be noted that though the learned counsel for the respondent brought the judgment of this Court referred to above and contended that Sections 56-A and 56-B of Tamil Nadu Prohibition Act is not a bar for the plaintiff to approach 10/14 http://www.judis.nic.in S.A.No.300 of 2003 the Civil Court, in the above judgment, this Court has clearly held that bar of Sections 56-A & 56-B under Tamil Nadu Prohibition Act applicable only when the relationship of vendor and vendee is confirmed and came into existence. In para 11 of the above judgment, this Court has held that even before confirmation of auction in the manner known to law and the same made known to the auction purchaser, the provisions of Sections 56-A and 56-B of Tamil Nadu Prohibition Act cannot be applied to oust the jurisdiction of Civil Court. Only in such circumstances, Civil Suit jurisdiction cannot be barred. Whereas, in the given case, the contract is concluded. The auction was conducted and the respondent became a successful bidder and he was granted a licence. That apart, he also paid two months rent. It clearly indicated that there was a concluded contract between the parties. If the respondent was not participated in the auction, the same would have been given to some other parties and the licence fee for the year would have been come as revenue to the Government. Such being the position, having participated and suddenly giving up the licence and closing the shop without paying the agreed rent, certainly lead to loss of revenue to the Government and to prevent such loss of revenue to the Government, the action is always contemplated under Tamil Nadu Prohibition Act, followed by the 11/14 http://www.judis.nic.in S.A.No.300 of 2003 Revenue Recovery Act. Before culminated any action under Revenue Recovery Act, the question of hearing the respondent does not arise at all. What was sought to be recovered under pre-notice is only an quantified amount based on the tender conditions and acceptance by the plaintiff. Such being the position, this Court is of the view that the pre-notice issued by the second defendant to initiate action under Revenue Recovery Act cannot be declared as null and void. Accordingly, all the substantial questions of law are answered in favour of the appellants and the First Appellate Court judgment is set aside.
10. Accordingly, this Second Appeal stands allowed. However, there shall be no order as to costs.
03.01.2020
Index : Yes/No
Internet : Yes/No
RM
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S.A.No.300 of 2003
To
1.The Principal District Judge,
Pudukkottai,
2.The District Munsif,
Aranthangi.
3.The Section Officer,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.No.300 of 2003
N.SATHISH KUMAR,J.
RM
S.A.No.300 of 2003
03.01.2020
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