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P.S. Jibin Versus The Excise Commissioner Commissionerate of Excise, The Deputy Excise Commissioner, The Circle Inspector of Excise, Pangu

2016 (4) TMI 974 - 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 5.3.2014 .....

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tentions 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. 235 of 2016 , WP(C).20503/2015 - Dated:- 9-3-2016 - K. Surendra Mohan And P. V. Asha, JJ. For the Petitioner : Sri. S. Sreekumar For the Respondent : Shri Joseph George JUDGMENT .....

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The learned Single Judge has dismissed the said writ petition. 2. The brief facts of the case are the following. The fourth respondent was the licensee of the toddy shops in question for the previous year 2013-14. While he was conducting the toddy shops, on 24.8.2013 a squad of the Excise Department conducted a raid and recovered from a building nearby, which was in his possession 1950 litres of toddy which is alleged to be not fit for human consumption. Immediately, Crime No:72/2013 was regist .....

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e toddy shops in the said group was issued. The said interim order of stay is still in force. 3. In the above circumstances, a public auction for sale of the privilege of vending toddy in the toddy shops in Group No:3 of Kunnamkulam Excise Range, Thrissur district, during the period 2014-17 was conducted on 5.3.2014. The appellant participated in the said auction and became the highest bidder. Therefore, a provisional allotment of the privilege was made in his favour. While so, the fourth respon .....

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the appellant that, though the fourth respondent was aware of the auction that was conducted on 5.3.2014, he had not sought for the grant of a privilege at any time before the auction. Nor did he participate in the auction. Thereafter, on 2.4.2014 WPC 6359/2014 was disposed of directing the first respondent to consider and pass orders on the claim of the fourth respondent for preferential right, within a period of three weeks of the date of receipt of a copy of the judgment. The said judgment ha .....

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the preferential right claimed by him, by the said order. 4. The appellant challenged Ext.P7 order by filing WPC 13758/2014 against the same before this Court. The said writ petition was allowed by Ext.P8 judgment, Ext.P7 order was set aside and the first respondent was directed to consider the question afresh and to pass fresh orders in the matter after considering the legal contentions raised by both parties. Accordingly the matter was reconsidered and by Ext.P10 order the first respondent ha .....

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he Senior Counsel Shri. S.Sreekumar who appears for the appellant a huge quantity of toddy had been seized, from a building in the possession of the fourth respondent. A crime was also registered in respect of the said incident under Section 55(a) & (i) of the Abkari Act. In view of the registration of the crime, a fact that is not disputed by any of the parties the fourth respondent has lost his right to claim preference under Rule 5 of the Rules. The only requirement for application of the .....

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nsion of toddy shops in the particular group, was not granted. Since such a relief was declined by this Court, it is contended that the first respondent had no authority to grant the privilege. The learned Senior Counsel also points out that, though detailed argument notes had been submitted, a copy of which has been produced as Ext.P9, the first respondent had omitted to consider any of the contentions raised. Ext.P8 judgment of this Court had specifically directed the first respondent to consi .....

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arned Single Judge, the impugned order has been sustained. In view of the above, it is contended that the judgment of the learned Single Judge is unsustainable and liable to be set aside. 6. The contentions of the counsel for the appellant are opposed by Adv.M.G.Karthikeyan who appears for the fourth respondent. According to the learned counsel, the toddy that was allegedly seized, was not from the toddy shop that was conducted by the fourth respondent. Chemical analysis of the toddy showed that .....

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llegation that the provisions of Section 55(a) & (i) were attracted is also without any basis. The only provision if at all any could be attracted was the one under Section 56(b) of the Abkari Act. 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 against any further action on the basis thereof. Accordingly, canc .....

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rth 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 have 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. The above aspect has been correctly taken note of by the first .....

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ll further proceedings on the basis of the crime that has been registered and stayed the cancellation of fourth respondent's license also there was no ground on which the preference available to him under Rule 5 (1) could be denied. In answer to the contention that Ext.P10 was 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 contentions that were put forward. In the face of the prima facie .....

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ingle 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 toddy unfit for human consumption had been seized from a building in th .....

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force. In the above circumstances, whether the fourth respondent is entitled to claim privilege in the matter of grant of license to conduct the toddy 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, t .....

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as conducted the shops during [2013-14] and whose licenses cancelled due to registration of Abkari cases and subsequently exonerated by the Courts and 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 Senior 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 admittedly a .....

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been challenged by the fourth respondent invoking the powers of this Court under Section 482 of the Code of Criminal Procedure. Thus, the matter is pending consideration of this Court in Crl.M.C.4299/2013. The said case has been taken on file and this Court has also granted an interim order, which reads as follows:- "There will be an interim order staying all further proceedings pursuant to Annexure-B (Cr.No:72/2013 of Excise Inspector Excise Range, Wadakkancherry, Thrissur) including the s .....

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me has subsequently been extended until further orders and is still in force. The consequence of the above order is that, all further proceedings against the fourth respondent have been brought to a standstill. The only ground on which the license in favour of the fourth respondent was cancelled, was the registration of the crime. Since the cancellation itself was stayed, the fourth respondent was permitted to conduct the toddy shops up to the end of his license period. Having permitted the four .....

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his contentions in the said writ petition also. Having considered the rival contentions this Court disposed of the same with the following directions:- "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 Rule 5 (15) of the Rules in respect of the aforementioned shops and pass orders only after considering the question of entitlement of the .....

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ered by the first respondent and a decision was taken to grant privilege to the fourth respondent as per Ext.P7. Ext.P7 was the subject matter of challenge in WPC 13758/2014 at the instance of the appellant herein. By Ext.P8 judgment, Ext.P7 was set aside and the first respondent was directed to consider the issues afresh. Ext.P10 is the order passed pursuant to the said direction. Though it is contended that, Ext.P10 is a verbatim reproduction of Ext.P7, we are unable to agree. We find that the .....

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rder. 13. 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.P2 order, we notice that such a contention had been raised before this Court in WPC 13758/2014. The said contention was considered by this Court and rejected, in Ext.P8 judgment. This Court has found that, the consequence of Ext.P2 interim order was to set at naught all the proceedings initiated against the f .....

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