Kerala High Court
Babu M.V vs State Of Kerala on 13 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA, 1942
WP(C).No.27352 OF 2020(T)
PETITIONER:
BABU M.V.
MANJOORAN HOUSE, ERUMATHALA P.O. ALUVA,
ERNAKULAM DISTRICT
BY ADVS.
DR.K.P.SATHEESAN (SR.)
SRI.P.MOHANDAS (ERNAKULAM)
SRI.K.SUDHINKUMAR
SRI.S.K.ADHITHYAN
SRI.SABU PULLAN
SRI.GOKUL D. SUDHAKARAN
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY, TAXES DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001
2 THE COMMISSIONER OF EXCISE,
EXCISE HEADQUARTERS, THIRUVANANTHAPURAM-695 001
3 THE DEPUTY COMMISSIONER OF EXCISE,
OFFICE OF THE DEPUTY EXCISE COMMISSIONER,
KACHERIPADY, ERNAKULAM,KOCHI-682 018
4 THE CIRCLE INSPECTOR OF EXCISE,
NEAR MINI CIVIL STATION, ALUVA,
ERNAKULAM-683 101
R1-4 BY SMT.MABLE.C.KURIAN GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
13.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.27352 OF 2020 2
JUDGMENT
The privilege of vending toddy in the State of Kerala is granted to
successful bidders by public sale on group basis as per the provisions of the
Abkari Act (Act 1 of 1077) and the Kerala Abkari Shops Disposal Rules,
2002. The petitioner took part and became the successful bidder of toddy
shops in Group No.1 of Aluva Excise Range. In Group No. 1, there are six
toddy shops which have been numbered as Toddy Shop No. 1, Toddy Shop
No. 9, Toddy Shop No.10, Toddy Shop No.11, Toddy Shop No. 14 and Toddy
Shop No. 34. The privilege was granted to him for the period 2020-2023.
The auction was confirmed in the name of the petitioner on 6.4.2020.
2. Rule 5(6) of the Rules 2002 states that the purchaser, on whose
name, the sale is confirmed shall execute an agreement in Form No. III and
take out necessary licence and install the group. Before installing the
group, the purchaser is required to execute the agreement and take out the
required licence. The provision states that if the purchaser fails to comply
with the requirements within a reasonable time as fixed by the Deputy
Commissioner of Excise of the Division concerned, the annual rental paid by
him towards the group is liable to be forfeited to Government and the group
will be resold or otherwise disposed off. Rule 7(15) of the Rules, 2002
states that if the shops are not opened within one month from the date of
receipt of the confirmation of sale of shop of privileges or in cases where
the shops once opened but sale has been discontinued for more than 30
days consecutively, the shops shall be liable to be resold or disposed off
otherwise at the risk and loss of the licensees.
3. Though the sale was confirmed in favour of the petitioner, he
was able to commence only Toddy Shop Nos. 9 and 14. The Trade Unions
submitted a complaint before the Commissioner of Excise stating that the
petitioner has refused to commence the shop in spite of the privilege having
been granted to him and that the wages to the toddy shop employees were
not being paid. Taking note of the non functioning of the shops for more
than a month, the Excise Commissioner by order dated 8.8.2020 suspended
the privilege granted to the petitioner. The said order was challenged by
the petitioner before this Court contending that due to interference by
neighbouring residents in running the toddy shops and the difficulty in
obtaining consent from owners of buildings, the petitioner was unable to
start the functioning of the toddy shops. He also pointed out in the writ
petition that the petitioner has found out two shops for operating Toddy
Shop Nos. 11 and 10 and his licence application was pending before the
Deputy Excise Commissioner. The prayer of the petitioner was for a direction
to the Excise Commissioner to consider his representation for not
commencing the shops within the period mentioned in the Rules and for a
further direction to the Deputy Excise Commissioner to consider his
application for licence in respect of T.S.Nos. 11 and 10 without being
persuaded by the suspension order passed by the Excise Commissioner.
After considering the submissions, this Court was inclined to grant some
indulgence to the petitioner. By judgment dated 17.8.2020, in W.P.(C)
No.16774/2020, this Court disposed of the writ petition directing the Excise
Commissioner to consider Ext.P9 explanation offered by the petitioner for
non functioning of the shops and take a decision after hearing the
petitioner. The Deputy Commissioner was directed to consider his
application for licence in respect of T.S.Nos. 10 and 11 without being
influenced by the suspension notice.
4. In terms of the directions issued by this Court, the petitioner
was heard by the Excise Commissioner. The order of suspension was
revoked and the petitioner was granted a further time of 30 days to
commence the functioning of the toddy shops.
5. The Deputy Excise Commissioner considered his application for
licensing T.S.Nos. 10 and 11 and a report was called for from the Circle
Inspector of Excise, Aluva. The Circle Inspector inspected the premises and
found that the building proposed for licensing T.S.No. 10 was outside the
notified limits. The building proposed for licensing T.S.No. 11 was a
residential building wherein people were residing in one part of the house.
By order dated 29.10.2020, the application for licence for T.S.Nos. 10 and
11 was rejected by Ext.P6 order by the Deputy Excise Commissioner.
6. When the petitioner failed to find out suitable premises for
housing the toddy shops within the period granted by the Excise
Commissioner, Ext.P7 order was passed on 2.12.2020.
7. Under challenge in this writ petition are Exts.P6 and P7 orders.
8. Sri. K.P.Satheesan, the learned senior counsel appearing for the
petitioner submitted that there was no justification on the part of the
respondents in cancelling the privilege granted to the petitioner. According
to the learned counsel, pursuant to the earlier order passed by this Court,
the order of suspension was revoked and the petitioner was granted a
period of 30 days for finding suitable buildings to house the four toddy
shops. It is stated that the petitioner found out two shops and separate
applications for licenses were submitted before the Deputy Excise
Commissioner. However, on extraneous reasons, the application for licence
was rejected. The learned senior counsel would contend that the reasons
given for rejecting his application is merely a ruse to cancel the privilege
granted to the petitioner. He would further contend that no proper
opportunity was granted to the petitioner before venturing to cancel the
privilege. It is further submitted that though more than 6000 toddy shops
are there in the State only about 4000 are functioning at the moment. He
would further state that in the adjoining Njarakkal range, licensees such as
the petitioner are permitted to operate with only one or two shops though
the group consists of six toddy shops.
9. Smt. Mable C. Kurian, the learned Government Pleader, has
stoutly opposed the prayer. It is pointed out that the auction was confirmed
in favour of the petitioner on 16.4.2020, and even as on date, though more
than 10 months have elapsed, the petitioner has not been able to
commence the functioning of four toddy shops. It is stated that Rule 5(16)
and Rule 7(15) of the Kerala Abkari Shops Disposal Rules, 2002 clearly
stipulates that if the purchaser fails to take out licence for the entire shops
or if he fails to function for a consecutive period of 30 days, the privilege
can be cancelled and the group can be resold or otherwise disposed of. It is
pointed out that it is pursuant to directions issued by this Court that the
earlier suspension order was revoked and the petitioner was granted 30
days time to find out a suitable building to house the four toddy shops
which remained closed. In spite of grant of several opportunities, the
petitioner failed to commence and function the toddy shops and in view of
the above, the respondents have acted in terms of the provisions of Act and
Rules and have withdrawn the privilege. It is further pointed out that
Section 26 of the Act enables the Commissioner to cancel licence or permit
for violation of the terms and conditions.
10. I have anxiously considered the submissions advanced and
have perused the records.
11. Admittedly, the auction was confirmed in favour of the
petitioner on 6.4.2020. There is no dispute with regard to the fact that even
as on 13.1.2021, the petitioner has been able to operate only toddy shop
Nos. 9 and 14. The other shops still remain closed.
12. Rule 5 of the Abkari Shops Disposal Rules, 2002 deals with the
grant of privilege of vending toddy shops. Rule 5(16) reads thus:
(16) The purchaser, on whose name the sale is confirmed, shall execute an
agreement in Form III appended to these rules and shall take out
necessary licence and install the group, range. No group, range
shall be installed without executing the agreement and taking out the
required licence. If the purchaser fails to comply with these
requirements within a reasonable time as fixed by the Deputy
Commissioner of Excise of the division concerned, the annual rental
paid by him towards the group, range shall be forfeited to
Government and the group, range re-sold or otherwise disposed of.
13. Chapter VI of the Rules deals with the General conditions
applicable to the licensees of Toddy or FL-1 Shops. Rule 7(15) reads thus:
(15) Subject to the above provisions every shop shall be kept open as
prescribed in sub-rule (10) unless it's temporary or permanent
closure is authorized or ordered by the commissioner of Excise. In
every shop such supply of toddy or foreign liquor, as the
Commissioner of Excise or the Joint Commissioner of Excise, Deputy
Commissioner of Excise may consider sufficient to meet the local
requirement, shall be maintained. Shops not opened within one
month from the date of receipt of the confirmation of sale of shop of
privilege and shops once opened but in which the sales have been
discontinued for more than 30 days consecutively, shall be liable to
be re-sold or disposed otherwise at the risk and loss of the licensees.
14. In other words, if the purchaser fails to execute the agreement
and take out the required licence within a reasonable time as fixed the
annual rental paid by the purchaser towards the group is liable to be
forfeited to the Government and the group is liable to be resold or otherwise
disposed of. Under Rule 7(15), to open the shop for a continuous period of
more than 30 days is prohibited and that is yet another reason for
proceeding against the licensee.
15. From the order passed by the Excise Commissioner, it is evident
that running a few shops in a group would result in loss of work to the
toddy shop workers. Though the petitioner had found two shops for the
purpose of opening T.S.Nos. 10 and 11, the report of the Circle Inspector
shows that those buildings are unsuitable as one was situated outside the
notified limits and the other was a residential building. This Court on an
earlier occasion had granted indulgence to the petitioner in order to enable
him to make a last ditch effort to procure shop rooms to enable the shops
to function. Based on the orders issued by this court, the Excise
Commissioner granted the petitioner further time to sort out the issue.
However, the records reveal that enough opportunities were granted to the
petitioner to save the privilege. The contention of the petitioner that other
licensees who are similarly placed are permitted to operate their toddy
shops and the petitioner has been discriminated against cannot be
accepted. There are no materials to substantiate the said fact. On the other
hand, the materials before this Court reveal that the respondents have
acted in accordance with the statutory provisions.
Having considered all the relevant aspects, I find no reason to
interfere with the order passed by the respondents in exercise of the
discretionary jurisdiction under Article 226 of the Constitution of India.
This writ petition will stand dismissed. There will be no order as to
costs.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
NS
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGES OF THE
LICENSE NO.470/2020 IN RESPECT OF TODDY
SHOP NO.9/2020-21 DATED 20.05.2020
EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGES OF THE
LICENSE NO.471/2020 ISSUED TO TODDY SHOP
NO.14/2020-21 DATED 20.05.2020
EXHIBIT P3 TRUE COPY OF THE INTERIM ORDER DATED
12.06.2020 IN WPC NO.10872/2020
EXHIBIT P4 TRUE COPY OF THE ORDER NO.EXC/2938/2020-
XA2 DATED 8.8.2020 ISSUED BY THE 1ST
RESPONDENT
EXHIBIT P4A TYPED READABLE COPY OF EXT.P4
EXHIBIT P5 TRUE COPY OF THE ORDER NO.EXC/2938/2020-
XA2 DATED 28.10.2020 ISSUED BY THE 2ND
RESPONDENT
EXHIBIT P6 TRUE COPY OF THE ORDER NO.E4-
4767/2020(1) DATED 27.11.2020 ISSUED BY
THE 3RD RESPONDENT
EXHIBIT P7 TRUE COPY OF THE ORDER ISSUED BY THE 2ND
RESPONDENT AS NO.EXC-2938/2020-XA2 DATED
2.12.2020
EXHIBIT P8 TRUE COPY OF THE NOTIFICATION NO.E4-
2300/2020 DATED 29/12/2020 ISSUED BY THE
3RD RESPONDENT.
RESPONDENTS' EXHIBITS:
ANNEXURE R3(A) TRUE COPY OF JUDGMENT IN W.P.
(C).NO.16774/2020
ANNEXURE R3(B) TRUE COPY OF APPLICATION DATED
26.08.2020
ANNEXURE R3(C) TRUE COPY OF BUILDING TAX RECEIPT OF THE
BUILDING NO.17/201/C OF NEDUMBASSERY
GRAMA PANCHAYAT
