Kerala High Court

State Of Kerala vs K.G.Ashokan on 16 March, 2022

                     IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                        PRESENT

                   THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

                                           &

                       THE HONOURABLE MRS. JUSTICE C.S. SUDHA

             WEDNESDAY, THE 16 TH DAY OF MARCH 2022 / 25TH PHALGUNA, 1943

                                   WA NO. 1762 OF 2019

    AGAINST THE JUDGMENT DTD 18/03/2019 IN WP(C) 7527/2015 OF HIGH COURT OF KERALA



APPELLANTS/RESPONDENTS IN WP(C):

      1       STATE OF KERALA,
              REPRESENTED BY THE SECRETARY, TAXES (G) DEPARTMENT,
              GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001.

      2       THE COMMISSIONER OF EXCISE,
              EXCISE BHAVAN, THIRUVANANTHAPURAM - 695001.

              BY SENIOR GOVERNMENT PLEADER SHRI.V.K.SUNIL



RESPONDENT/PETITIONER IN WP(C):

              K.G.ASHOKAN,
              S/O.GOPALAN, KUTTICHIRAYIL, KANNANKARA P.O.,
              THANEERMUKKAM, CHERTHALA TALUK,
              ALAPPUZHA DISTRICT- 688527.

              BY ADVS.
              SRI.T.RAMPRASAD UNNI
              SRI.S.M.PRASANTH
              SRI.G.RENJITH
              SRI.K.RAMAKUMAR (SR.)




      THIS WRIT APPEAL HAVING COME UP FOR HEARING ON 07.03.2022, THE COURT ON

16.03.2022 DELIVERED THE FOLLOWING:
                                         2
W.A.No.1762 of 2019



               P.B.SURESH KUMAR & C.S.SUDHA, JJ.
                --------------------------------------------------
                             W.A.No.1762 of 2019
                    -------------------------------------------
                  Dated this the 16 th day of March, 2022


                              JUDGMENT

C.S.Sudha, J.

This writ appeal is against the judgment dated 18/03/2019 in

W.P.(C)No.7527/2015. The appellants herein are the respondents in the writ

petition and the respondent herein is the petitioner in the writ petition. The

parties in this writ appeal will be referred to as described in the writ

petition.

2. The writ petition was filed challenging Ext.P5 order

dated 20/02/2015 issued by the second respondent, by which the right to

conduct sale of toddy for Toddy Shop, Group No.I in Pala Range

provisionally sold to the petitioner, was cancelled and the annual rent of

`2,98,650/- remitted by the petitioner to the Government was forfeited as

provided under Rule 5(17) for violation of the 2 nd proviso to Rule 5(1)(b) of

the Kerala Abkari Shops Disposal Rules, 2002 (the Rules). The learned

W.A.No.1762 of 2019

single Judge found no suppression of facts or production of fake documents

by the petitioner as contemplated under Rule 5(17) and hence Ext.P5 order

was set aside. Aggrieved, the respondents have come up in appeal.

3. Heard Sri.V.K.Sunil, the learned Senior Government

Pleader for the appellants and Sri.S.M.Prasanth, the learned counsel for the

respondent.

4. Rule 5 deals with the grant of privilege of vending toddy

which is subject to the conditions stipulated in clauses (a) and (b) of sub-

rule (1) along with the provisos attached to it. The second proviso to clause

(b) of sub rule (1) says that no person shall be allowed to purchase more

than two groups of toddy shops. Sub rule (3) to Rule (5) deals with the

eligibility conditions of an applicant. The eligibility is subject to the

conditions contained in clauses (i) to (vi) of sub rule (3). Sub rule (17) to

Rule 5 reads -

"(17) If it is found at any stage that any purchaser of privilege had suppressed facts in his application as to his eligibility or produced fake documents and obtained the privilege declared or confirmed in his name or obtained any licence granted in his name, the licence issued to him, if any, will be cancelled and the whole of the amount paid by him towards the annual rental of the group range, shall be

W.A.No.1762 of 2019

forfeited to Government and the group range resold or otherwise disposed of."

Therefore, only if the bidder suppresses facts in his application relating to

his eligibility or produces fake documents, on the basis of which he obtains

the privilege of vending toddy, his license is liable to be cancelled and the

deposit forfeited.

5. As seen earlier, the eligibility conditions of a

bidder/purchaser is contained in sub rule (3). The respondents have no case

that any of the conditions in sub rule (3), that is, clauses (i) to (vi), has been

violated by the petitioner. On the other hand, the case of the respondents is

that the petitioner had already purchased two groups of toddy shops, that is,

he was the licensee of TS Group no.IX in Kuravilangad range and one of

the purchasers of TS Group no.V in Kottayam range, when he applied for

the purchase of TS group no.1 in Pala range. The application for Pala

group was the third one. This was noticed by the Circle Inspector of

Excise, Pala, while preparing the sale list. This fact when verified by the

Circle Inspector of Excise, Kottayam was found to be true.

6. In the appeal memorandum, it is alleged that the stand

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of the petitioner that he was unaware of the position that a person is not

entitled to purchase more than two groups of toddy shops, is incorrect and

false because on 03/06/2014, before the auction commenced, the eligibility

and criteria for the participants was read out at the venue where the

participants including the petitioner herein had assembled for participating

in the auction. It was only thereafter the participants had filled out their

application forms and submitted them. The petitioner had participated in the

auction, knowing fully well that he was not eligible to participate in the

auction as he was already holding the privilege to vend toddy for two

groups of toddy shops, that is, Kottayam as well as Kuravilangad range. The

application submitted for Pala range was the third one and therefore it was

in clear violation of the 2nd proviso to Rule 5(1)(b) of the Rules, contend

the respondents.

7. The respondents have produced the copy of the three

applications submitted by the petitioner. As per the first application dated

04/03/2014, the petitioner is seen to have applied for TS no.45 to 49, Group

no. IX, Kuravilangad range. Column 12 of this application which requires

information as to whether the applicant had purchased the privilege of

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vending toddy, is seen left blank. The application for purchase of TS no.25

to 30, Group V, Kottayam range dated 03/06/2014 is seen submitted by the

petitioner along with another person. In Column no.12 of this application, in

which application the petitioner is applicant no.2, it is stated that he is the

licensee of Group IX, Kuravilangad range. The third application dated

03/06/2014 is for TS no.1 to 5 in Group no. I of Pala range. In Column

No.12 of this application, the petitioner has stated that he is the licensee of

Group IX of Kuravilangad range.

8. It is true that as per the second proviso to clause (b) to

sub rule (1) of Rule 5, the petitioner is not entitled to purchase more than

two groups of toddy shops. When he submitted his application for Pala

range, he had already obtained the privilege for vending toddy in

Kuravilangad and Kottayam ranges. The petitioner contends that when he

realised this mistake, he immediately gave Ext.P2 request for cancelling his

auction relating to Group no. 5 of Kottayam range and to finalise his

auction relating to Group no.1 of Pala range. According to the learned

single Judge, Ext.P2 would show the bona fides of the petitioner. It is true

that as per the second proviso to clause (b) of sub rule (1), the petitioner

W.A.No.1762 of 2019

ought not to have bid for more than two groups of toddy shops. However,

that infraction would not amount to suppression of facts in his application

relating to his eligibility. Rule 5(3) dealing with eligibility reads-

"(3) No applicant is eligible for the privilege of any group range if he:

(i) is charged with an offence relating to illicit liquor or prosecution proceedings are pending against such applicant before a court of law;

(ii) is Convicted under any Abkari offence or any other Criminal Offence and sentenced to imprisonment for more than three years after 1st April, 1992;

(iii) is a defaulter of Abkari arrears, Sales Tax arrears or any other arrears due to the Kerala Toddy workers Welfare Fund or the Kerala Abkari Workers Welfare Fund unless he produces from the Circle Inspector of Excise, Sales Tax Officer, the Authority of the said Welfare Fund Board or any other officer authorised in this behalf as the case may be a certificate to the effect that no dues are outstanding against him or that he has remitted before the date of sale of group range 50% of the arrears pending against him as on the date of sale notification;

(iv) is liable to pay contribution to the Toddy Workers Welfare Fund and/or the Kerala Abkari Welfare Fund as the case may be unless he produces from the Welfare Fund Inspector concerned a certificate to the effect that he has remitted before the date of sale of group range the arrears of contributions payable up to the 31st day of December of the preceding year.

W.A.No.1762 of 2019

(v) is a public servant in the service of Government.

(vi) is below 18 years of age;

(vii) Omitted by SRO No.366/2003 pub. in GO (P)No.73/2003/TD dt. 29-4-2003"

None of the aforesaid sub clauses has been violated by the petitioner. The

respondents have no such case also. Clause (vii) which has been omitted,

reads- "has already been granted with the privilege of another toddy shop in the State

in the Abkari year in question."

9. Rule 5(17) initially read -

"(17) If it is found at any stage that any purchaser of privilege had

suppressed facts in his application as to his eligibility including

preference or produced fake documents and obtained the privilege

declared or confirmed in his name or obtained any licence granted in his name, the licence issued to him, if any, will be cancelled and the whole of the amount paid by him towards the annual rental of the shop, shall be forfeited to Government and the shop resold or otherwise disposed of."

The words "including preference" was omitted by SRO No.346/2003

published in GO(P) No.68/2003/TD dated 23/04/2003. Initially a person

granted with the privilege of a toddy shop in the State, was ineligible under

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sub rule (3) to bid for the purchase of another one. This clause was omitted

in the year 2003. The second proviso to clause (b) to sub rule (1) of Rule 5

was inserted with effect from 01/04/2008. This condition that no person

shall be allowed to purchase more than two groups of shops, when inserted

was brought under sub rule (1) (a) dealing with the order of preference to be

granted to licensees. Clause (b) says that the privilege in sub rule (1)(a)

shall be confined to the range of shops in which the licensee's shop falls. It

is, as a proviso to clause (b) the condition that no person shall purchase