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TMI Blog2015 (3) TMI 1176X X X X Extracts X X X X X X X X Extracts X X X X ..... on 56 of the Abkari Act. In W.P(C).No.13758/2014, C.R.No.72/2013 of Wadakkancherry Excise Range was registered against the 4th respondent therein under section 55(a)&(i) of the Abkari Act. In W.P(C) No.13868/2014 against the 4th respondent therein C.R.Nos. 14/2013 and 23/13 of Kunnamangalam Excise Range were registered under section 57(a) & 56(b) of the Akbari Act and Rule 9(2) of the Kerala Abkari Shops Disposal Rules, 2002 and in W.P (C)No.14191/2014 against the 4th respondent therein Crime No.472/2013 of Pulimkunnu police station was registered under section 56(b) & 55(a) & (i) of the Abkari Act. By virtue of the provisions under Rule 5(1) of the Kerala Abkari Shops Disposal Rules, 2002 (in short 'the Rules') registration of an abkari case against a licensee other than under section 56 of the Abkari Act would disentitle that license to claim the preference as contemplated thereunder. In the said circumstances, it was decided to conduct disposal of toddy shops in the general category. The petitioners in all these cases took part in the auction thus conducted in respect of those shops and became the successful bidders in respect of the shops concerned. Consequently, provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by this Court in connection with the abkari cases registered against them. It was their contention that if the authorities considered the interim orders passed in their favour, in such proceedings, the preferential rights to which they were entitled by virtue of the provisions under Rule 5(1)(a) of the Rules would not have been denied to them. After hearing the petitioners therein and the learned Government Pleader in those writ petitions this Court granted interim orders restraining the official respondents from confirming the sale effected in respect of the shops concerned. At the time of final hearing it was submitted by the learned counsel on both sides that the auction conducted were only confirmed provisionally subject to the confirmation of the sale by the Excise Commissioner invoking the power under Rule 5(15) of the Rules and therefore, they sought for a direction to the Excise Commissioner to consider the question of their entitlement for preference under Rule 5(1)(a) of the Rules before passing orders on the provisional allotments. It was taking note of such contentions that this Court passed the common order dated 2.4.2013 in W.P.(C)Nos.6324/2014, 6359/2014 and 6380/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in these cases. Evidently, in all these cases the petitioners became the successful bidders in the auction. The provisional allotments in their favour came to be cancelled by the impugned orders passed pursuant to the common judgment passed by this Court in W.P.(C) Nos.6324/2014, 6359/2014 and 6380/2014 dated 2.4.2014. A bare perusal of the common judgment would reveal that this Court had never made any observations touching the merits of the rival claims and, in fact, those writ petitions were filed by the respective 4th respondents in these cases raising grievances against the provisional allotment in favour of the petitioners herein, ignoring their preferential right available under Rule 5(1) (a) of the Rules taking note of the registration of the abkari cases against them. This Court stayed the confirmation of the sale and directed the Commissioner of Excise to pass appropriate orders invoking his powers under Rule 5(15) of Rules after taking a decision on the question of the preferential right claimed by the petitioners therein, who are respectively the 4th respondents in these writ petitions. The writ petitioners were also directed to be afforded with an opportunity of heari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court granted only an interim order staying all further proceedings pursuant to Annexure- B therein including suspension/cancellation of the licences of toddy shops concerned and the specific direction sought for as above was not granted. Per contra, the learned counsel for the 4th respondent submitted that even in the absence of a specific direction to give preferential claim for the allotment/renewal/extension of toddy shops the order of stay in respect of suspension and cancellation of licences of toddy shops would have the impact of protection of his preferential right otherwise available under Rule 5(1)(a) of the Rules in favour of the 4th respondent. In otherwords, the stay of the suspension and cancellation of licences when once stayed it would enable the 4th respondent to continue to run the shop, based on the licence issued in his favour and in such circumstances, on the strength of such licence the 4th respondent therein is entitled to claim for preference by virtue of the provisions under Rule 5(1)(a) of the Rules. According to the 4th respondent therein a separate direction though sought for in Crl.M.C.No.4299/2013 such a direction was uncalled for as even in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt the factual position as well those points were not pointedly considered. In fact, a decision to cancel the provisional allotment and to restore the preferential right was taken solely taking into the factum of existence of the interim order passed by this Court in the aforesaid Crl.M.C. There was absolute absence of any discussion in the light of the provisions as also the authorities concerned. When this Court issued a direction to the Excise Commissioner to consider the availability of preferential right under Rule 5(1)(a) of the Rules claimed by the 4th respondent in W.P.(C) No.13758/2014 (the petitioner in one of the writ petitions disposed of as per the said order dated 2.4.2014) with notice to the petitioner in W.P.(C) No.13758/2014 the first respondent should have taken a decision after addressing the said issues in accordance with law. The learned counsel for the petitioner submitted that as a matter of fact yet another contention which was taken up by the petitioner that the 4th respondent in the said writ petition had actually failed to apply and obtain the preferential certificate and did not participate in the auction was also not considered by the Excise Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase was validly registered or not against the 4th respondent was not actually considered by the first respondent. It is also to be taken into account the fact that specific contention of the petitioner was that the 4th respondent therein had not obtained a preferential certificate and also had not participated in the auction. This point was also not considered while passing the impugned order. I shall not be understood to have held or said that by virtue of his nonparticipation he would lose his preferential right. The long and short of the discussion is that the first respondent ought to have considered all such points after affording an opportunity to the 4th respondent and also to the petitioner in W.P.(C) No.13758/2014 and taken a decision on the availability of the 4th respondent therein to the preferential right. In such circumstances, W.P.(C) No.13758/2014 I am of the view that a fresh decision is to be taken in terms of the common judgment in W.P.(C) Nos.6324/2014, 6359/2014 and 6380/2014 dated 2.4.2014, after considering all such relevant aspects on the aforesaid point in this writ petition. To enable such consideration Ext.P7 in W.P.(C) No.13758/2014 is set aside and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y virtue of the registration had to be adversely affected the 4th respondent and subsequent discharge as per Ext.R4(h) and R4(i) would be inconsequential. It is also contended that the 4th respondent had never approached the concerned Circle Inspector to get the preferential certificate. The learned counsel for the 4th respondent submitted that with his discharge and by virtue of the restoration of the preferential right as per the impugned Ext.P7 order pursuant to the directions of this Court those contentions raised by the petitioner could not have and would not have any adverse impact on the right of the 4th respondent. In otherwords, according to the learned counsel for the 4th respondent in the light of Exts.P3 and P5 which are the interim orders obtained by the 4th respondent in his favour regarding the suspension of his licence it should be deemed that the 4th respondent was having the right to continue with the conduct of the shops in question and in such circumstances, the disqualification could not have been worked out against the 4th respondent. At the same time, the fact that the 4th respondent had participated in the auction concerned held on 5.3.2014 is not in dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rl.M.C.No.3269/2013 filed by the 4th respondent. The said order passed by this Court in Crl.M.C No.3269/2013 has been produced by the 4th respondent as Ext.R4(C). It would reveal that the 4th respondent/ the petitioner in the said Crl.M.C sought for stay of investigation in Crime No. 472/2013 of Pulinkunnu police station registered against him as also his arrest. After hearing the learned counsel for the 4th respondent herein/ the petitioner therein stay of investigation as also his arrest was granted. The learned counsel for the petitioner contended that since this Court granted stay only in respect of further investigation and the arrest of the 4th respondent it could not efface the consequence of the registration of the crime against the petitioner in the light of the provisions under Rule 5(1)(a) of the Rules. At the same time, the learned counsel for the 4th respondent submitted that on obtaining Ext.R4(C) order in Crl.M.C.No.3269/2013 the same was produced before the first respondent and consequently the first respondent passed Ext.R4(d) order No.XA7-20145/2013 dated 25.9.2013 whereby and whereunder the earlier order suspending the licence was revoked subject to the final ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion whether the abkari case in question was validly registered or not was pointedly considered in Ext.P5 order. A bare perusal of Ext.P5 would reveal that no finding was actually returned by the first respondent as to the question whether the crime in question was validly registered or not against the 4th respondent. In the light of the common judgment of this Court in W.P.(C)Nos. 6324/2014, 6359/2014 and 6380/2014 dated 2.4.2014 the first respondent was bound to consider that question before proceedings to pass order invoking the power under Rule 5(15) of the Rules. However, the impugned order would reveal that the aforesaid points were not actually considered in accordance with law. To enable such a consideration in the light of the provisions as also the decisions on the point the impugned Ext.P5 order is set aside. Consequently, this writ petition is disposed of with liberty to the petitioner and the 4th respondent to take up the aforesaid questions and points appropriately before the first respondents within two weeks from the date of receipt of a copy of this judgment and with a direction to the first respondent to consider those questions and points taking note of the ob ..... X X X X Extracts X X X X X X X X Extracts X X X X
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