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Thomaskutty, S/o. Xavier Versus The Commissioner of Excise, The Deputy Commissioner of Excise Circle Inspector of Excise, Jayaprakash

2016 (4) TMI 726 - KERALA HIGH COURT

Auction for the privilege - denial of preference - Held that:- With respect to the contention that the first respondent has granted the benefit of preference to the fourth respondent though such a relief has been declined by this Court in Ext.P9 order, we notice that such a contention was raised before this Court earlier W.P.. The said contention was considered by this Court and rejected, in Ext.P5 judgment. This Court has found that, the consequence of Ext.P9 interim order was to set at naught .....

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ilege to him and upon rejection therof, had participated in the auction from the general category. Since he had participated in the auction and was unsuccessful, it was not open to him to claim the privilege after the auction was conducted. We notice that, the fourth respondent had challenged the denial of preference to him before this Court in earlier W.P.. In the said writ petition an interim order had been granted by this Court staying confirmation of the auction that was conducted on 5.3.201 .....

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ntentions of the appellant as well as the fourth respondent and decided the issues, it is not open to the appellant to contend that the fourth respondent should be held disentitled to the preference claimed by him for the reason that he had participated in the auction. The said contention is therefore rejected. - WA. No. 236 of 2016, WP(C).20871/2015 - Dated:- 9-3-2016 - K. Surendra Mohan And P. V. Asha, JJ. For the Petitioner : Sri N. Raghuraj For the Respondent : Shri Joseph George JUDGMENT Su .....

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d Single Judge has dismissed the said writ petition. The brief facts of the case are the following. The fourth respondent was the licensee for the toddy shops in Group No:XXI of Kuttanad Excise Range, Alappuzha division for the year 2013-14. On 11.7.2013, the Sub Inspector of Police, Pulinkunnu Police Station, inspected one of the shops (T.S.No:76) of which the fourth respondent was the licensee. He found two persons, alleged to be the Manager and the salesman, selling Indian Made Foreign Liquor .....

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nvoking the jurisdiction under Section 482 of the Code of Criminal Procedure by filing Crl.M.C.3269/2013. The Crl.M.C was admitted by this Court and by Ext.P9 interim order dated 26.8.2013, the investigation in Crime No:472/2013 of Pulinkunnu Police Station was stayed. The interim order of stay is still in force. 2. Against suspension of his license, the fourth respondent filed WPC 20255/2013 before this Court. The said writ petition was disposed of by judgment dated 29.8.2013 directing the firs .....

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ge to conduct various toddy shops including those that were licensed to the fourth respondent. Various persons including the appellant submitted applications in response to the said notification. The fourth respondent on the other hand sought for the issue of a preference certificate to him. Since such a certificate was denied to him he also participated in the auction that was conducted, as a general candidate. The successful bidder was finally decided by drawing of lots and the appellant becam .....

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on of auction that the first respondent had initiated. The direction of this Court in Ext.P3 reads as follows:- "The Excise Commissioner, the common first respondent in these writ petitions, shall issue notice of hearing to the petitioners as also the party respondents before passing orders invoking the powers under Rule5 (15) of the Rules in respect of the aforementioned shops and pass orders only after considering the question of entitlement of the petitioners for preferential right under .....

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nd by Ext.P4 order cancelled the provisional allotment made in favour of the appellant herein, holding that the fourth respondent was entitled to a preferential right. Ext.P4 was the subject matter of challenge in WPC 14191/2014. As per Ext.P5 judgment dated 9.3.2015, after considering the rival contentions of the parties, this Court set aside the order of the first respondent and directed the said authority to take a fresh decision in the matter. The appellant as well as the fourth respondent w .....

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before the learned Single Judge by the appellant. 5. According to Adv.N.Raghuraj who appears for the petitioner, this is a case in which the fourth respondent's application for the grant of preferential right had been declined. He accepted the action, participated in the auction that was conducted but, was not successful. At the same time the appellant became the successful bidder. After having participated in the auction that was conducted, from the general category, it is contended that i .....

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the fourth respondent for preferential right. However, the same was not considered in Ext.P4. It was for the said reason that the order was challenged in WPC 14191/2014. As per Ext.P5 judgment, the order of the first respondent was set aside and the said authority was directed to consider the matter afresh. However, Ext.P8 order does not disclose any such consideration. The first respondent has omitted to consider the issues raised, in compliance with the direction of this Court contained in Ex .....

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e is placed on the decision of another Division Bench of this Court in State of Kerala v. Komalan [2010(2)KLT190] in support of the above proposition. It is further contended that, Ext.P8 is only a verbatim reproduction of the earlier order passed by the first respondent. The said order having been set aside by this Court, a verbatim reproduction thereof betrays a total lack of application of mind. It is therefore contended that, the learned Single Judge went wrong in sustaining the impugned ord .....

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learned counsel, the fourth respondent cannot be found fault with, on any count. For the above reason, the registration of the crime as well as the allegation that the provisions of Section 55(a) & (i) were attracted is also without any basis, it is contended. For the above reason it is pointed out that the registration of the crime itself was unsustainable. It was appreciating the said contention, this Court has admitted the Crl.M.C seeking to quash the same and granted an interim order aga .....

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ourt had in Ext.P2 declined to grant a declaration that the fourth respondent would be entitled to preference, it is pointed out that a similar contention has been rejected by this Court in Ext.P8 judgment. According to the learned counsel, since all further proceedings on the basis of the crime that has been registered has been stayed and the cancellation of his license kept in abeyance, his right for being given preference has revived. No specific declaration to the said effect was necessary. .....

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that, since this Court has granted an interim stay of all further proceedings on the basis of the crime that has been registered and stayed cancellation of the fourth respondent's license also, there was no ground on the basis of which the preference available to him under Rule 5(1) could be denied. To the contention that Ext.P10 is a verbatim reproduction of the earlier order Ext.P7 that was set aside by this Court, it is pointed out that the first respondent has considered all the contenti .....

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said order has been found to be justified by the learned Single Judge also. According to the learned Govt. Pleader there are no grounds to interfere with the same. 8. Though the matter is posted before us for admission, since all the parties were represented through counsel we have heard the respective counsel, at length. We have also considered the contentions advanced before us anxiously. We notice that the facts are not in dispute. It is admitted that, a substantial quantity of IMFL was seiz .....

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shops during the abkari year commencing from 1.4.2014 is the disputed question. It is an admitted fact that, without extending preference to the fourth respondent, a regular auction of the shops was conducted on 5.3.2014, in which the appellant herein became the successful bidder. Therefore, the shops were provisionally allotted to him. However, the said provisional allotment has been cancelled by Ext.P8 order. 9. Rule 5(1)(a) of the Kerala Abkari Shops Disposal Rules, 2002 reads as under:- &quo .....

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those Licensees who could not complete the preceding three years on account of the closure of shops shall also be given preference." According to the learned Counsel for the appellant, for the purpose of the above provision, it is sufficient that an abkari case is registered against the former licensee. In the present case Crime, No. 472/2013 has admittedly been registered against the fourth respondent. The crime has been registered alleging offences under Section 55(a)& (i) of the Abka .....

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rt in Crl.M.C.3269/2013. The said case has been taken on file and this Court has also granted an interim order, which reads as follows:- " Petition praying that in the circumstances stated therein the High Court be pleased to stay the investigation in crime No:472/2013 of Pulinkunnu Police Station and also the arrest of the petitioner therein, till the disposal of this Crl.M.C. This petition coming on for orders upon perusing the petition and upon hearing the arguments of Mr.Grashious Kuria .....

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h the license in favour of the fourth respondent was cancelled was the registration of the crime. Since the investigation itself was stayed, the fourth respondent was permitted to conduct the toddy shops up to the end of his license period. Having permitted the fourth respondent to conduct his toddy shops up to the end of his license period, there was no justification for having denied to him the benefit of the preference contained in Rule 5(1)(a) of the Rules. It is the said infirmity that has .....

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shall issue notice of hearing to the petitioners as also the party respondents before passing orders invoking the powers under Rule 5 (15) of the Rules in respect of the aforementioned shops and pass orders only after considering the question of entitlement of the petitioners for preferential right under Rule 5(1)(a) of the Rules and subject to such decisions. It will be open to the party respondents to raise all their contentions resisting the claim of the petitioners for preferential right und .....

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xt.P4 was set aside and the first respondent was directed to consider the issues afresh. Ext.P8 is the order passed pursuant to the said direction. Though it is contended that, Ext.P8 is a verbatim reproduction of Ext.P4, we are unable to agree. We find that the first respondent has considered the various issues raised. The first respondent being only an administrative functionary, a consideration of the issues with the precision of a judicial pronouncement cannot be expected. Viewing Ext.P8 in .....

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ed before this Court in WPC 14191/2014. The said contention was considered by this Court and rejected, in Ext.P5 judgment. This Court has found that, the consequence of Ext.P9 interim order was to set at naught all the proceedings initiated against the fourth respondent pursuant to registration of the crime against him, including cancellation of his license. Therefore, a further declaration to the effect that his right of preference was available to him was unnecessary. Having suffered the said .....

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