TMI Blog2015 (3) TMI 1176X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent. 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, such a direction was uncalled for as even in the absence of such a direction preference by virtue of the Rule 5(1)(a) of the Rules ought to be available owing to the stay of all further proceedings pursuant to the registration including suspension and cancellation of the licence of the shops concerned was carried out. Therefore, it will only be appropriate to refer to Rule 5(1)(a) of the Rules. 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 with notice to the petitioner, the first respondent should have taken a decision after addressing the said issues in accordance with law. The learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules and subject to the said decision to pass an order invoking the power under Rule 5(15) of the Rules - 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 - Also submitted that one of the employees of the shops concerned run by the 4th respondent approached this Court challenging Ext.R4(d) which is Ext.P2 in this writ petition, and the said writ petition is still pending. In the said circumstances, he is entitled to the preferential right which is otherwise available under Rule 5(1)(a) of the Rules. Held that:- in the light of the common judgment of this Court in various writ petitions, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lated 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, provisional allotment of the concerned toddy shops were also effected in their names. In all these cases pursuant to the registration of the crimes as aforementioned against the respective 4th respondent the licenses issued in their favour were initially suspended and then cancelled. Feeling aggrieved by such actions they approached this court by filing writ petition as also criminal cases challenging the registration of crimes as also cancellation. In W.P.(C)No.13758/2014 the 4th respondent therein filed W.P.(C). No.6359/2014 and an interim order was passed therein by this court whereby the investigation in the crime concerned was stayed. In W.P.(C) No.13868/2014, the 4th respondent therein filed W.P. (C).No.8094/2013 and Ext.P3 interim order dated 22.3.2013 (Ext.P3 in W.P.(C) 13868/2014) was passed thereon. The 4th respondent therein prayed for staying operation and implementation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 6380/2014 directing the Excise Commissioner, the common first respondent in those writ petitions to issue notice of hearing to the parties before passing orders invoking the power under Rule 5(15) of the Rules in respect of the shops concerned and pass orders thereon only after considering the question of entitlement of the petitioners for preference under Rule 5(1)(a) of the Rules and subject to such decision. The parties were given liberty to raise all their contentions for establishing/resisting the respective claims. Pursuant to the directions in the said common judgment, orders have been issued by the 1st respondent. In W.P.(C).No.13758/2014 pursuant to the direction in the common judgment, Ext.P7 order dated 24.5.2014 was passed and in W.P.(C).Nos.13868/2014 and 14191/2014 Ext.P7 order dated 13.5.2013 (Sic 13.5.2014) and Ext.P5 order dated 23.5.2014 were passed respectively pursu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... propriate 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 hearing. Evidently, the impugned orders were passed after affording opportunity of being heard to both the petitioners as also the 4th respondent in all these writ petitions. It is admitted by both sides that the writ petitions as also the criminal cases filed by the 4th respondents in these writ petitions against the cancellation as also the registration of the cases are still pending. In such circumstances, the question posed for consideration is whether the first respondent is justified in cancelling the provisional allotments issued in favour of the petitioners herein and restoring the preferential right available to the 4th respondent in the concerned writ petitions as per the impugned orders subject to the outcome of the connected criminal cases pending before this Court and directing to conduct resale of the shops concerned? 4. In W.P.(C) No.13758/2014 Ext.P2 is the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tances, 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 absence of such a direction preference by virtue of the Rule 5(1)(a) of the Rules ought to be available owing to the stay of all further proceedings pursuant to the registration of Annexure-B including suspension and cancellation of the licence of the shops concerned was carried out. In the light of the aforementioned rival contentions it will only be appropriate to refer to Rule 5(1)(a) of the Rules. It reads thus:- 5. The Grant of privilege of vending Toddy shall be subject to the following conditions, namely:- (1)(a) While giving privilege, preference shall be given to those licensees who has conducted toddy shops during the preceding three years consecutively from 2006-2007, 2007-2008 and 2008-2009 provided no Abkari case is registered against him other than under section 56 of the Abkari Act. The licensees who has conducted the shops during 2002-2003 and subseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Commissioner. Evidently, the said contention was pointedly posed for consideration, going by the argument note submitted at the hearing conferred to the petitioner by virtue of the directions in the common judgment dated 2.4.2014. However, it was also not considered. True that while passing the impugned order the first respondent took note of the decision of this Court in Anilkumar v. State of Kerala reported in 2013(3) KLT 358. In the said decision this Court held that while deciding the question of preferential right the question to be considered is whether the abkari case was validly registered or not. In such circumstances, the first respondent was bound to consider the question whether the abkari case was validly registered or not against the 4th respondent while deciding his entitlement to the preferential right under Rule 5(1)(a) of the Rules. Ext.P6 order dated 24.5.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 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 first respondent is directed to consider the question of the availability of the preferential right under rule 5(1)(a) of the Rules to the 4th respondent after considering all the legal contentions raised by both the parties. I may hasten to add that this Court has not made any observation touching the merits of the rival contentions and both the parties are left at liberty to raise all legal and factual contentions. After considering all such aspects appropriate orders shall also be passed on the aforesaid question while passing orders in terms of the common judgment dated 2.4.2014 as mentioned hereinbefore, expeditiously and at any rate, within a period of 6 weeks from the date of receipt of a copy of this judgment. W.P.(C) No.13868/2014 Ext.P7 dated 13.5.2013 (sic 13.5.2014) is the impugned order in this writ petition. Evidently, in this case two reports ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. In such circumstances, the effect of the aforesaid contentions were to be considered by the first respondent while taking a decision pursuant to the direction of this Court in the common judgment dated 2.4.2014. A scanning of the impugned Ext.P7 order dated 13.5.2014 would reveal that those points were not pointedly considered by the first respondent. In the said circumstances, I am of the considered view that a fresh decision shall be taken by the first respondent after bestowing consideration and to enable the first respondent to consider those points the parties are permitted to take up their respective contentions on the points mentioned hereinbefore, appropriately, within two weeks from the date of receipt of a copy of this judgment. To enable such consideration Ext.P7 impugned order is set aside. There will be a direction to the first respondent to cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 orders in the said Crl.M.C. and the Deputy Commissioner of Excise, Alappuzha was directed to restore the privilege of licence of toddy shops concerned to the 4th respondent. It is the further contention that said order dated 25.9.2013 has not been successfully challenged and, in fact, on the strength of the said order the 4th respondent continued to conduct the shop in question. The learned counsel for the petitioner submitted that one of the employees of the shops concerned run by the 4th respondent approached this Court challenging Ext.R4(d) which is Ext.P2 in this writ petition, and the said writ petition is still pending. In the said circumstances, according to him he is entitled to the preferential right which is otherwise available under Rule 5(1)(a) of the Rules. A perusal of impugned Ext.P5 order would reveal that the rival contentions on the aforesa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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