IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 1ST AUGUST 2011 / 10TH SRAVANA 1933 WP(C).No. 15386 of 2011(W) -------------------------- PETITIONERS: --------------- 1. SAJIMON SEBASTIAN, S/O.DEVASSIA, KANDATHINKAL HOUSE, PONKUNNAM, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT. 2. T.D.ANTONY, S/O.DEVASSY, THOTTATHANPARAMBIL HOUSE, CHERAI, N.PARAVOOR, ERNAKULAM DISTRICT. 3. C.M.RAMU, S/O.MADHAVAN, CHENNARA HOUSE, PANANGAD, KODUNGALLUR, THRISSUR DISTRICT. 4. V.BABU, S/O.SANKARA NARAYANAN, VATTAPARAMBIL HOUSE, EDAPALLAM, OTTAPALAM, PALAKKAD DISTRICT. 5. RAJESH, S/O.PANKAJAKSHI, KUDAKKATTUPARAMBIL, N.PARAVUR, ERNAKULAM DISTRICT. 6. JOFY MATHEW, S/O.MATHEW, VETTIKOMBIL HOUSE, CHERPUMKAL P.O., PALA, KOTTAYAM DISTRICT. 7. JOBY JOHN, S/O.JOHN, AMBATTU HOUSE, N.PARAVUR, ERNAKULAM DISTRICT. 8. P.G.SUNIL, S/O.GANGADHARAN, PUTHUMADAM HOUSE, ETTUMANA, OORAKAM, THRISSUR DISTRICT. 9. K.V.SAJEEV, S/O.VELAYUDHAN, KUTTIPARAMBIL HOUSE, KODASSERY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 10. K.P.SANTHOSH, S/O.PRABHAKARAN, KALATHIPARAMBIL HOUSE, CHENNAMANGALAM, NORTH PARAVUR, ERNAKULAM DISTRICT. (CNTD....2) WP(C).No. 15386 of 2011(W) ::2:: 11. BOSCO ANTONY, S/O.ANTONY, THENGAPURACKAL HOUSE, N.PARAVUR, ERNAKULAM DISTRICT. 12. V.K.MURALEEDHARAN, S/O.KUMARAN, VIRUTHIYIL HOUSE, KARIMPADAM, CHENNAMANGALAM, ERNAKULAM DISTRICT. 13. T.V.SAJEEV, S/O.VELUKUTTY, THARAYIL VEEDU, MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 14. DAISILY, S/O.ANTONY, CHIRAYATH HOUSE, PALLIPURAM, KOCHI TALUK, ERNAKULAM DISTRICT. BY ADV. MR.C.C.THOMAS, SENIOR ADVOCATE MR.M.G.KARTHIKEYAN MR.SAJI SANKARAN NAIR MR.RANJITH JACOB KOSHY MR.NIREESH MATHEW RESPONDENTS: --------------- 1. STATE OF KERALA REP. BY SECRETARY, TAXES (A) DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF EXCISE, EXCISE COMMISSIONERATE, THIRUVANANTHAPURAM. 3. THE DEPUTY COMMISSIONER OF EXCISE, THRISSUR. 4. THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, THRISSUR. 5. THE EXCISE INSEPCTOR, EXCISE RANGE OFFICE, CHERPU, THRISSUR DISTRICT. 6. THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, ANTHIKKAD, THRISSUR DISTRICT. GOVERNMENT PLEADER MR.M.MUHAMMED SHAFI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 15386 of 2011(W) APPENDIX PETITIONERS' EXHIBITS: EXT.P1: ORDER NO.XA2-31598/2010 DTD. 28.12.2010 PASSED BY R2. EXT.P2: JUDGMENT DTD. 13.1.2011 IN W.P.(C).NO.110/2011 PASSED BY THIS COURT. EXT.P3: ORDER NO.XA2-31598/10 DTD NIL PASSED BY R2. EXT.P4: INFORMATION/LETTER DTD. 9.2.2011 ISSUED BY R3 TO R2. RESPONDENTS' EXHIBITS: ANNEXURE-R3(a)(1) TO (a)(14): NOTICES GIVEN TO THE CIRCLE INSPECTOR OF EXCISE, THRISSUR. ....... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.15386 Of 2011 ---------------------- Dated this the 1st day of August, 2011. J U D G M E N T The writ petition is filed seeking to quash Ext.P3 order, for a declaration that the petitioners are entitled to get the preferential right over the respective licenses of toddy shops for the remaining abkari year and for the coming abkari year 2011-12 and for other incidental reliefs. 2. Petitioners 1 to 5 were the licensees of toddy shops in Group Nos.I, III, IV, V and VII in Thrissur Excise Range, petitioners 6 to 13 were the licensees of toddy shops in Group Nos.I to VIII in Cherpu Excise Range and 14th petitioner was the licensee of toddy shops in Group No.I of Anthikkad Excise Range respectively for the abkari year 2010-11. Due to Malappuram liquor tragedy during the 1st week of September, 2010, the then Excise Commissioner gave an oral direction to close down all the toddy shops in Thrissur District on 8.9.2010, as a matter of taking extreme precaution. Subsequently, all the licensees in Thrissur District including the petitioners were permitted to run their toddy shops after considering the medical report of the hospitalised person received on 13.9.2010. Though the ::2:: W.P.(C).No.15386 Of 2011 petitioners were permitted to run the toddy shops during September, some licensees including the petitioners did not open the shops during September and October. In the statement filed by the 3rd respondent it is pointed out that the petitioners along with other licensees of the Thrissur Taluk opened the shops on 16.11.2010 on the basis of the talks held between the Excise Commissioner with the toddy shop licensees of Thrissur Taluk and trade union leaders in the meeting held on 13.11.2010 at Collectorate conference hall, Thrissur. It is also stated that on 28.11.2010 the petitioners informed the Circle Inspector of Excise, Thrissur that since the running of toddy shops are uneconomical, they closed down the toddy shops with effect from 25.11.2010. The notice issued by the petitioners addressed to the Excise Circle Inspector are produced and marked as Annexure R3 (a)(1) to (a)(14). The learned Government Pleader submitted that thereafter the shops remained closed till the end of licence period, namely, 31.3.2011. Later, vide Ext.P1 order dated 28.12.2010, the Excise Commissioner cancelled the licence and rental amount forfeited to Government under Section 26(b) of the Abkari Act r/w Rule 7(15) of the Kerala Abkari Shops Disposal ::3:: W.P.(C).No.15386 Of 2011 Rules, 2002. The Excise Commissioner directed the Deputy Commissioner of Excise, Thrissur to conduct resale of the toddy shops as per Rules and also directed to take steps to place the shops under Department Management Rules in order to protect the livelihood of the employees. The petitioners challenged Ext.P1 order before this Court in W.P.(C).No.78/11 and connected cases. By Ext.P2 judgment dated 13.1.2011, this Court set aside Ext.P1 order and issued directions that, if the shops are under the Department Management Rules, the status quo shall continue for a period of 10 days and, if the shops are remaining closed on account of the impugned orders, the Excise Commissioner shall permit the petitioners to reopen the same to conduct business in accordance with the conditions in the licence issued to the petitioners. This Court also directed that it will be open to the excise commissioner to proceed with the matter in accordance with law, in case he thinks it fit to take appropriate action in accordance with law. 3. Pursuant to the directions issued by this Court in Ext.P2 judgment, the Excise Commissioner conducted a hearing. The petitioners were summoned for hearing on 16.2.2011. In ::4:: W.P.(C).No.15386 Of 2011 Ext.P3 it is stated that the petitioners confined their arguments only on the payment of wages to the labourers of the toddy shops. Petitioners expressed their willingness to pay only the existing wages to the labourers and they have submitted before the Excise Commissioner that full wages for the defunct period of four and a half months will not be paid to the workers. The only contention raised is regarding payment of wages to the workers. In fact, the petitioners could not reopen the shops for the reason that there is dispute between the licensees and labourers regarding the payment of wages. The learned counsel for the petitioners contended that the shops were reopened on 20.12.2010 and therefore Rule 7(15) of the Abkari Shops Disposal Rules is not attracted. During the course of argument, this Court enquired about the materials produced before the Excise Commissioner in order to show that the shops were opened on 20.12.2010. The petitioners are not in a position to show any materials to prove that the shops were opened on 20.12.2010. Learned counsel for the petitioners submitted that the matter may be again directed to be reconsidered by the Excise Commissioner, since the Commissioner did not consider ::5:: W.P.(C).No.15386 Of 2011 the contention of the petitioners that the shops were opened on 20.12.2010 and therefore Rule 7(15 ) is not attracted. Since there is no materials produced before the Excise Commissioner nor before this Court in this writ petition, there is no purpose in again directing the Excise Commissioner to consider the matter afresh. The fact remains that the shops were remained closed till 31.3.2011, ie., till the end of the licence period. 4. This is a clear case where the shops remained closed more than 30 days and sales have been discontinued for more than 30 days consecutively. Rule 7(15) of the Abkari Shops Disposal Rules mandates that in such circumstances such shops shall be liable to be resold or disposed otherwise at the risk and loss of the licensees. Finding that the shops remained closed for more than 30 days the Excise Commissioner passed Ext.P3 order was passed ordering resale and further issued directions to the Deputy Excise Commissioner, Thrissur to proceed with the resale of the toddy shops as per Rules. 5. The contention of the petitioners is that the closure of the toddy shops for more than 30 days is not due to any act or omission on the part of the petitioners that it happened due to ::6:: W.P.(C).No.15386 Of 2011 the direction issued by the then Excise Commissioner to close down the toddy shops in the event of Malapuram Liquor Tragedy and that the aforesaid reasons coupled with the labour union agitation demanding wages for the days of non-functioning and consequential reliefs for the period of non-functioning are the reasons for the closure of the Abkari shops for more than 30 days. According to the petitioners Ext.P3 order is passed without applying mind and not applying to the facts pleaded by the petitioners. 6. I have examined Ext.P3 order. Ext.P1 is the original order passed on 28.12.2010 under Rule 7(15) of the Abkari Shops Disposal Rules. Finding that the shops remained closed for more than 30 days, the Commissioner cancelled the licence and rental amount forfeited to Government under Section 26(b) of the Abkari Act. The excise commissioner directed the Deputy Commissioner to conduct resale of the toddy shops and place the shops under the Department Management Rules. Ext.P3 order was passed in accordance with the directions issued in Ext.P2 judgment. The petitioners were afforded an opportunity of hearing. After hearing the petitioners the Excise Commissioner ::7:: W.P.(C).No.15386 Of 2011 came to the very same conclusion that Rule 7(15) of the Abkari Shops Disposal Rules is violated. Ext.P3 order was passed finding that the shops remained closed for more than 30 days. 7. After perusing Ext.P3 order and hearing the contentions of the petitioners, this Court is of the considered view that no purpose will be served by directing the Excise Commissioner to decide the matter afresh. All the contentions raised by the petitioners were heard by the Excise Commissioner before passing Ext.P3 order. No grounds are made out by the petitioners for interference with the order under challenge. The writ petition is without any merit, accordingly, it is dismissed. HARUN-UL-RASHID, Judge. bkn/-