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2015 (3) TMI 1176 - KERALA HIGH COURT

2015 (3) TMI 1176 - KERALA HIGH COURT - TMI - Seeking permission to continue to conduct the toddy shops - Suspension and cancellation of licenses - auction sale of privilege for vending toddy in different toddy shops - Revokation of provisional allotment granted in favour of the petitioners - Entitled to get preferential right in terms of Rule 5(1)(a) of Kerala Abkari Shops Disposal Rules, 2002 - Held that:- as per Ext.P2 this Court granted only an interim order staying all further proceedings i .....

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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, suc .....

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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 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 t .....

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the first respondent to consider the claim of the petitioner for preferential right under rule 5(1)(a) of the Rules and then to pass orders invoking the power under Rule 5(15) of the Rules - Petitioner submitted that though the 4th respondent participated in the auction, at that point of time the challenge against the prosecution proceedings launched against him was not there. In such circumstances, the disqualification by virtue of the registration had to be adversely affected the 4th responden .....

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irection to the first respondent to consider all such contentions if taken up appropriately by both the parties, on merits and to take appropriate decisions, in accordance with law, and also in terms of the common judgment dated 2.4.2014 after affording an opportunity of being heard to both the parties. It shall be done expeditiously, and at any rate, within six weeks from the date of receipt of the respective petitions carrying such contentions from the petitioner and the 4th respondent.
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he 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 p .....

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spondent 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 observations in this judgment as also the common judgment dated 2.4.2014 and any other authorities if cited by the concerned parties and in accordance with law. - Petition disposed of - W.P.(C) Nos. 13758, 13868 & 14191 of 2014 - .....

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in different toddy shops in different Excise Ranges under different Excise Divisions. The respective 4th respondent in all these writ petitions are the previous licensees of the shops concerned in each of these writ petitions. However, they were denied preference owing to the registration of abkari cases against them other than under section 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 .....

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le 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 bidder .....

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ion. 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 of Ext.P1 viz., the order dated 17.3.2013 passed by t .....

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this writ petition viz., W.P.(C) No.13868/2014 the said order of suspension was stayed. In W.P.(C).No.14191/2014, against the 4th respondent therein Crime No.472/2013 was registered against him and as per Ext.P2 his license was suspended. Later, it was revoked and the shop was notified for sale. Earlier, when the shops concerned were notified for sale the 4th respondents in these writ petitions approached this Court by filing respectively W.P.(C)Nos. 6324/2014, 6359/2014 and 6380/2014. Those wr .....

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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 effe .....

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nal 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 preferenc .....

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dated 23.5.2014 were passed respectively pursuant to the said direction. Evidently, the said orders are passed by the said respondent in invocation of his power under Rule 5(15) of the Rules pursuant to the common judgment dated 2.4.2014. Evidently in all these cases, the first respondent revoked the provisional allotment granted in favour of the petitioners herein subject to final orders in the connected criminal cases pending before this Court and further observed that the previous licensee/t .....

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02. These writ petitions are filed on the challenge against the aforementioned orders. 2. I have heard the learned counsel for the petitioners in these writ petitions, the learned counsel appearing for the 4th respondent as also the learned Government Pleader. 3. The facts expatiated above would reveal that the concerned 4th respondent in these writ petitions was the previous licensee of the shop concerned and all those shops were put for auction in a general category pursuant to the registratio .....

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he 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 Ru .....

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ases 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 cri .....

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further proceedings pursuant to Annexure-B that is the occurrence report in C.R.No.72/2013 of Excise Range, Wadakkanchery, including the suspension and cancellation of the toddy shop in Group No.III of the Kunnamkulam Excise Range no consequential direction to give preferential claim was granted in favour of the 4th respondent. Such a contention was raised by the learned counsel appearing for the petitioner in the said writ petition taking note of the prayers made in Crl.M.A.No.7679/2013 as is d .....

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l /extension of the toddy shops in Group No. III in Kunnamkulam Excise Range if he is otherwise qualified, till the disposal of the Crl.M.C. As per Ext.P2 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 specif .....

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sued 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 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 proceedin .....

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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 subsequent years and whose licences 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 preferences. A bare perusa .....

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fect of suspension/cancellation of licence could not visit him. As noticed herein before, the contention of the petitioner in W.P.(C) No.13758/2013 is that since a direction to grant preferential right was specifically sought for by the 4th respondent and was not granted the 4th respondent is not legally justified in contending with his right which is otherwise available under Rule 5(1)(a) is still available even on the non-grant of a direction to give preferential right. A scanning of the impug .....

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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 .....

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ed 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 whet .....

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he decision in Anilkumar's case (supra) with reference to the records and considering the impact of the stay granted by this Court including against the suspension and cancellation of the llicences of the shops concerned. It is held therein that in compliance with the interim order passed in Crl.M.C.No.4299/2013 the licence of the 4th respondent in W.P.(C) No.13758/2014 was provisionally renewed up to 31.3.2014 subject to the result of W.P. (C) No.7945/2012 and Crl.M.C.No.4229/2013. It is th .....

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xcise Commissioner, Thrissur was directed to dispose of the shops in accordance with the rules. At the same time, in the light of the discussion as above a scanning of Ext.P7 impugned order dated 24.5.2013 in W.P.(C) No.13758/2014 would reveal that though the decision in Anilkumar's case was referred to therein the question whether an abkari case 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 t .....

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rtunity 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. .....

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ects 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 were registered against the 4th respondent viz., C.R.No.14/2013 and C.R.No.23/13. .....

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the claim of the petitioner for preferential right under rule 5(1) (a) of the Rules and then to pass orders invoking the power under Rule 5 (15) of the Rules. The learned counsel for the 4th respondent in this case would submit subsequently the criminal proceedings launched against the 4th respondent in C.R.Nos.14/2013 and 23/13 culminated in the discharge of the 4th respondent. Exts.R4(h) and (i) are the orders of the Court of the Judicial First Class Magistrate, Kunnamangalam discharging the .....

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ted 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 ha .....

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he 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 .....

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respondent to consider all such contentions if taken up appropriately by both the parties, on merits and to take appropriate decisions, in accordance with law, and also in terms of the common judgment dated 2.4.2014 after affording an opportunity of being heard to both the parties. It shall be done expeditiously, and at any rate, within six weeks from the date of receipt of the respective petitions carrying such contentions from the petitioner and the 4th respondent. W.P.(C) No.14191/2014 Ext.P .....

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ies were given liberty to raise all the contentions for and against the said claim of the preferential right. As per the impugned Ext.P5 order which was passed pursuant to Ext.P3 common judgment the provisional allotment granted in favour of the petitioner was cancelled and the Deputy Commissioner of Excise, Alappuzha was directed to dispose of the toddy shop afresh, in accordance with rules. A perusal of the order would reveal that the first respondent passed such an order taking into account t .....

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y 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 th .....

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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 .....

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ential right under Rule 5(1)(a) of the Rules raised by the 4th respondent. True that, the petitioner herein took up a contention that the order passed by this Court in Crl.M.C.No.3269/2013 could not efface the impact of registration of the aforementioned crime and to buttress the said contention the petitioner relied on the decision of this Court in State of Kerala v. Komalan reported in 2010(2) KLT 190. As a matter of fact after rendering the decision in Komalan's case (supra) the very same .....

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