Shibu P vs State Of Kerala
2021 Latest Caselaw 18029 Ker

Citation : 2021 Latest Caselaw 18029 Ker
Judgement Date : 3 September, 2021

Kerala High Court

Shibu P vs State Of Kerala on 3 September, 2021

WP(C) NO. 13538 OF 2021

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          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 3RD DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943
                    WP(C) NO. 13538 OF 2021
PETITIONER/S:
         SHIBU P
         AGED 49 YEARS
         S/O GOPALAN, PARAYIL HOUSE, VAZHITHALA
         P.O.PURAPPUZHA VILLAGE, THODUPUZHA TALUK,
         IDUKKI DISTRICT-685 583.

          BY ADVS.
          GEORGE MATHEW
          M.D.SASIKUMARAN
          PRAVEEN S.
          SUNIL KUMAR A.G
          DIPU JAMES
          MATHEW K.T.
          GEORGE K.V.
          STEPHY K REGI
          ELSA DENNY PINDIS

RESPONDENT/S:
    1    STATE OF KERALA
         REP. BY ITS SECRETARY, TAXES DEPARTMENT,
         GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695
         001.

    2     THE DIRECTOR OF STATE LOTTERIES,
          DIRECTORATE OF LOTTERIES, PUBLIC OFFICE
          BUILDINGS, VIKAS BHAVAN, THIRUVANANTHAPURAM-695
          033.

    3     DISTRICT LOTTERY OFFICER,
          MINI CIVIL STATION, THODUPUZHA P.O.IDUKKI
          DISTRICT-685 584.

          SMT.DEEPA NARAYANAN, SR.GOVERNMENT PLEADER

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 03.09.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C) NO. 13538 OF 2021

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                 P.V.KUNHIKRISHNAN, J
           -------------------------------
               W.P.(C)No.13538 of 2021
          --------------------------------
      Dated this the 3rd day of September 2021


                          JUDGMENT

The Above writ petition is filed with

following prayers:

"i) to call for the records which lead to the issuance of Exts.P1 and P2 and to issue writ in the nature of certiorari or any other appropriate writ order or direction quashing the same;

ii) to issue a writ of mandamus or any other appropriate writ, direction or order, commanding respondents to restore Petitioner's Agency No.Y 1005 for sale of Paper Lotteries;

iii) to issue a writ of mandamus or any other appropriate writ, direction or order, commanding respondents to release the amounts due to the petitioner as commission and amounts exchanged as prize money;

iv) to grant such other reliefs or direction or order as this Hon'ble Court deems fit and proper to grant."

WP(C) NO. 13538 OF 2021

2) The petitioner is a lottery agent

under the 2nd respondent. As per Ext.P1 order

the licence issued to the petitioner is

suspended invoking the powers under Rule 5(5) of

the Kerala Paper Lotteries (Regulation) Rules-

2005 (herein after mentioned as "Rules 2005") as

amended in 2011. The petitioner challenged

Ext.P1 before the 2nd respondent as per Ext.P2

appeal. This Court directed the 2nd respondent

to consider the stay petition first and

thereafter directed to consider the appeal also.

Now the stay petition is dismissed as evident by

Ext.P5. Aggrieved by the same this writ petition

is filed.

3) Heard the learned counsel for the

petitioner and the learned Government Pleader.

           4)      The        learned        counsel        for     the

petitioner        submitted         that,    the      petitioner     is

doing the lottery agency for about 30 years. All

on a sudden, licence to the agency is suspended WP(C) NO. 13538 OF 2021

as per Ext.P1, even without giving an

opportunity of hearing. The learned counsel

submits that, Ext.P1 order is perse illegal.

According to the learned counsel if Ext.P1 order

is not stayed till a final decision is taken in

the appeal, there will be irreparable loss to

the petitioner.

5) The learned Government Pleader

submitted that, the petitioner trespassed into

the 3rd respondent's office and committed

criminal offences. A criminal case is

registered. Hence Exts.P1 and P5 orders were

passed by the Authority concerned and there is

nothing to interfere with it. The learned

Government Pleader submitted that, the appeal is

pending before the Appellate Authority and the

Appellate Authority will consider the same, in

accordance to law, after giving an opportunity

of hearing to the petitioner.

6) Admittedly, Ext.P1 order is passed

invoking the powers under Rule 5(5) of the Rules WP(C) NO. 13538 OF 2021

2005. The relevant portion of Rule 5(5) of the

Rules 2005 is extracted hereunder;

"(5) The Director shall have the powers to suspend or cancel an agency if it is found that the agent or seller is acting in contravention of any of the provisions of the Act or the Rules made thereunder or is indulging in any act or omission in any form which is detrimental to the public interest:

Provided that no such agency shall be cancelled without giving the agent concerned an opportunity of being hear."

7) A reading of above Rule, it is clear

that, no agency can be cancelled without giving

the agent concerned an opportunity of being

heard. A reading of Ext.P1 order, it is clear

that, no hearing is given before passing the

same. That shows that, Ext.P1 order is passed

without hearing the petitioner. Whatever may be

the misconduct from the side of the petitioner,

it is not proper to cancel an agency in

violation of the specific Rules. Therefore,

according to me Ext.P5 is to be set aside and

till a decision is taken in the appeal, Ext.P1 WP(C) NO. 13538 OF 2021

is to be stayed. Therefore the writ petition is

allowed in the following manner: