IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 14TH DECEMBER 2011 / 23RD AGRAHAYANA 1933 WP(C).No. 24808 of 2011(A) ---------------------------------------- PETITIONER(S): ------------------------- 1. SIBY JOSE, S/O.JOSEPH, AGED 42, KOCHUPURAYIL HOUSE, POONJAR P.O., KOTTAYAM. 2. K.P.SAJU, S/O.PRABHAKARAN, KANYAKONNIL HOUSE, CHANGANASSERY, KOTTAYAM. 3. RAJAPPAN, S/O.NARAYANAN, NELLIKKAL HOUSE, MELUKAVU, KOTTAYAM. 4. SAJEEV SALU, S/O.SALU, MAPRIYIL HOUSE, THEEKKOY P.O., KOTTAYAM. 5. VIPIN VASU, S/O.VASU, KANAMATTATHIL HOUSE, KATTAMBRAKU KARA, NETTOOR VILLAGE, VAIKOM TALUK, KOTTAYAM. 6. RAJU, S/O.RAGHAVAN, CHATHANICKAL HOUSE, MELUKAVU, KOTTAYAM. 7. M.T.SURESH, AGED 42, S/O.THANKAPPAN, MANATHANATHU HOUSE, POONJAR, THEKKEKARA, KOTTAYAM. 8. JOSE GEORGE, S/O.GEORGE, KUNNEL HOUSE, VELLIKULAM, THEEKKOY, KOTTAYAM. 9. K.P.ANIL KUMAR, S/O.PRABHAKARAN, KOSHAPPALIL HOUSE, VAYALA, ELAKKATTU VILLAGE, MEENACHIL, KOTTAYAM. 10. JOBY AUGUSTINE, S/O.AUGUSTINE, EDAKARA HOUSE, EZHACHERRY, VELLILAPPALLY VILLAGE, MEENACHIL, KOTTAYAM. 11. E.V.SHAJI, S/O.VELAYUDHAN, ERATTIKAL HOUSE, POONJAR P.O., KOTTAYAM. sts 2/- -2- WP(C)NO.24808/2011 12. M.N.THANKAPPAN, S/O.NARAYANAN, MANGALATHEL HOUSE, THINDANADU P.O., KOTTAYAM. 13. R.SANDEEP, S/O.RAJAPPAN, NELLIKAL HOUSE, MELUKAVU, KOTTAYAM. 14. P.G.AJAYAKUMAR, S/O.GOPALAKRISHNAN, PUTHENPURACKAL HOUSE, PANNUR, KARIMANNUR, THODUPUZHA. BY SRI.S.SREEKUMAR, SENIOR ADVOCATE ADV.SRI.SABU S.KALLARAMOOLA SRI.S.NIDHEESH RESPONDENT(S): ----------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES (A) DEPARTMENT, SECRETARIAT, TRIVANDRUM.PIN-695 001 2. THE COMMISSIONER OF EXCISE, COMMISSIONERATE, TRIVANDRUM.PIN-695 001 3. THE DEPUTY COMMISSIONER OF EXCISE, EXCISE DIVISION, KOTTAYAM.PIN-686 002 4. THE DEPUTY COMMISSIONER OF EXCISE, EXCISE DIVISION, ERNAKULAM.PIN-682 030 5. THE DISTRICT COLLECTOR, KOTTAYAM.PIN-686 002 6. THE DISTRICT COLLECTOR, ERNAKULAM.PIN-682 031 7. DEPUTY COMMISSIONER OF EXCISE, EXCISE DIVISION, PALAKKAD.PIN-678 001. 8. JOJIN A.GEORGE, ARACKAL HOUSE, KAROOR KARA, LALAM VILLAGE, MEENACHIL TALUK, PIN-686 589. R1 TO R7 BY GOVERNMENT PLEADER SRI.BIJU MEENATTOOR R8 BY ADV. SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.24808/2011 APPENDIX PETITIONER(S) EXHIBITS EXT.P1 TRUE COPY OF THE LICENSE ISSUED BY THE 3RD RESPONDENT TO THE PETITIONERS 1 T0 3 FOR CONDUCTING T.S.NO.14/2010-11. EXT.P2 TRUE COPY OF THE LICENSE ISSUED BY THE 3RD RESPONDENT TO THE PETITIONERS 1 TO 3 FOR CONDUCTING T.S.NO.16/2010-11. EXT.P3 TRUE COPY OF THE LICENSE ISSUED BY THE 3RD RESPONDENT TO THE PETITIONERS 1 T0 3 FOR CONDUCTING T.S.NO.18/2010-11. EXT.P4 TRUE COPY OF THE TODDY TRANSPORT PERMIT ISSUED TO THE TODDY SHOP NOS.14,16,18/2010-11. EXT.P5 TRUE COPY OF THE LICENCE ISSUED BY THE 3RD RESPONDENT TO THE PETITIONERS 4 TO 6 FOR CONDUCTING T.S.NO.26/2010-2011. EXT.P6 TRUE COPY OF THE TODDY TRANSPORT PERMIT ISSUED TO TODDY SHOP NO.26/2010-11. EXT.P7 TRUE COPY OF THE LICENCE ISSUED BY THE 3RD RESPONDENT TO THE PETITIONERS 7 TO 10 FOR CONDUCTING T.S.NO.48/2010-11. EXT.P8 TRUE COPY OF THE TODDY TRANSPORT PERMIT ISSUED TO TODDY SHOP NO.47,48/2010-11. EXT.P9 TRUE COPY OF THE LICENSE ISSUED TO PETITIONERS 11 TO 13 FOR CONDUCTING TODDY SHOP NO.54/2010-11. EXT.P10 TRUE COPY OF THE LICENSE ISSUED TO PETITIONERS 11 TO 13 FOR CONDUCTING TODDY SHOP NO.55/2010-11. EXT.P11 TRUE COPY OF THE LICENSE ISSUED TO PETITIONERS 11 TO 13 FOR CONDUCTING TODDY SHOP NO.56/2010-11. EXT.P12 TRUE COPY OF THE TODDY TRANSPORT PERMIT ISSUED TO TODDY SHOP NO.54,55,56/10-11. EXT.P13 TRUE COPY OF THE LICENSE ISSUED TO 14TH PETITIONER TO CONDUCT TODDY SHOP NO.18/2010-11 GROUP V. EXT.P14 TRUE COPY OF THE LICENSE ISSUED TO 14TH PETITIONER TO CONDUCT TODDY SHOP NO.43/2010-11 GROUP V. EXT.P15 TRUE COPY OF THE TODDY TRANSPORT PERMIT ISSUED TO TODDY SHOP NO.18, 43/2010-11. EXT.P16 TRUE COPY OF THE OCCURANCE REPORT O.R.34/2011 REGISTERED BY EXCISE INSPECTOR, THRISSUR RANGE. 2/- -2- WP(C)NO.24808/2011 EXT.P17 TRUE COPY OF THE MAHAZAR DATED 2/8/2011 PREPARED BY EXCISE INSPECTOR, THRISSUR. EXT.P18 TRUE COPY OF THE ORDER DATED 2/9/2011 IN WPC.23655/2011. EXT.P19 TRUE COPY OF THE ORDER DATED 2/9/2011 IN WPC.23656/2011. EXT.P20 TRUE COPY OF THE REPORT DATED 30/8/2011 PREPARED BY EXCISE INSPECTOR THRISSUR RANGE. EXT.P21 TRUE COPY OF THE ORDER OF CONFIRMATION ISSUED TO 8TH RESPONDENT JOJIN A.GEORGE. EXT.P22 TRUE COPY OF THE JUDGMENT IN CRL.M.C.3281/11 DATED 10/10/2011. RESPONDENTS' EXHIBITS : EXT.R8(A) PHOTOCOPY OF THE GUIDELINES FOR THE SALE OF THE TODDY SHOPS FOR 2011-12(FROM 1/10/2011 TO 31/3/2012). /TRUE COPY/ P.A.TO.JUDGE sts HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.24808 Of 2011 ---------------------- Dated this the 14th day of December, 2011. J U D G M E N T Writ petition is filed seeking to quash Ext.P21, for a direction commanding the respondents to grant/renew the toddy shop licenses held by the petitioners from 1.10.2011 to 31.3.2012, for a direction commanding the respondents to permit the petitioners to conduct toddy shop covered by respective licenses after granting/renewing the toddy shop licenses for six months from 1.10.2011 to 31.3.2012, for a declaration that the denial of toddy shop licence to the petitioners on the ground of their subsequent false implication in Crime No.34/2011 of Thrissur Excise Range as illegal and for other incidental reliefs. 2. Petitioners 1 to 3 are the joint licensees of Group No.3 of Erattupetta Range of Kottayam Division, 4 to 6 are the joint licensees of Group No.5 of the same Range, 7 to 10 are the joint licensees of Group No.9 of the same Range, petitioners 11 to 13 are the joint licensees of Group No.10 of the same Range and 14th petitioner is the licensee of Group No.5 of Muvattupuzha Excise Range with toddy shop Nos.18 & 43. The Government had ::2:: W.P.(C).No.24808 Of 2011 issued orders for renewal of licenses of the existing toddy shops for six months from 1.10.2011. It is pointed out that the Government, as a matter of policy, issued Government Order, whereby the licenses of all existing toddy shops in the State of Kerala were extended for one month from 1.9.2011 to 30.9.2011 and by order dated 13.9.2011 it was decided to grant/renew the toddy shop licenses to the existing licensees for six months i.e., from 1.10.2011 to 31.3.2012. 3. On 2.8.2011, a Crime was registered against the petitioners and others for the alleged illegal transport of toddy without permit. Crime and Occurrence Report was registered against the petitioners and others for the offences punishable under Sections 55(a) and 56(b) of the Abkari Act. 3. Under Rule 5(1)(a) of the Kerala Abkari Shops Disposal Rules, 2002, the existing licensees are entitled to preference, provided, no Abkari case is registered against them other than under Section 56 of the Abkari Act. 4. Writ petition was filed by the petitioners for the reliefs aforementioned stating that petitioners are innocent, that they ::3:: W.P.(C).No.24808 Of 2011 were not involved in offence under Section 55(a) of the Abkari Act and therefore, the registration of the crime is not a matter which stands in the way of renewal of licence by giving preference under Rule 5(1)(a) of the Rules. This Court passed an interim order dated 16.9.2011 which reads as follows: “Auction of toddy shops if any conducted will be subject to result of these writ petitions. It is made clear that the petitioners in these cases also shall be permitted to participate in the auction on a provisional basis, subject to result of these writ petitions on the question of their eligibility.” 5. Pursuant to the interim direction issued by this Court, petitioners participated in the open allotment of sale of toddy shops. Except petitioners 4 to 6, others have got allotment of toddy shops in the open allotment. As far as the petitioners 4 to 6 are concerned, who are the licensees of Group No.5, there were also applicants and in the draw of lots that followed, the additional 8th respondent got allotment of Group No.5. All other petitioners except petitioners 4 to 6 got allotment since there are no other participants in the open allotment. ::4:: W.P.(C).No.24808 Of 2011 6. Petitioners filed Crl.M.C.No.3281/2011 seeking to quash Occurrence Report No.34/2011 registered by the Excise Range, Thrissur, so far as Section 55(a) of the Abkari Act is concerned. This Court examined the contentions of the petitioners and allowed the Crl.M.C by Ext.P22 judgment holding that the prosecution against petitioners for offence punishable under Section 55(a) of the Abkari Act will stand quashed. On the basis of Ext.P22 judgment, petitioners contend that they are eligible to get preferential right to vend toddy in all the groups. On a plain reading of Rule 5(1)(a) of the Kerala Abkari Shop Disposal Rules and Ext.R8(a) guidelines, it is clear that previous licensees are entitled to preference provided no Abkari case is registered against them other than under Section 56 of the Abkari Act. In this case, at the time of allotment of toddy shops, an Abkari case is registered against the petitioners under Section 55(a) of the Act r/w Section 56 of the Act. Therefore, it is not open to the petitioners to contend that they are eligible to preference in the matter of allotment of licenses to the petitioners. In so far as the present allotment is concerned, ::5:: W.P.(C).No.24808 Of 2011 petitioners are not entitled to get preference since Abkari case was registered against them under Section 55(a) of the Abkari Act. So long as the prosecution against petitioners for offence punishable under Section 55(a) of the Abkari Act stand quashed by Ext.P22 judgment, petitioners are eligible to apply for preference for the next year, subject to the Abkari Policy relevant for consideration as on 1.4.2012. Petitioners other than petitioners 4 to 6 obtained licence in the open quota till 31.3.2012. Since Rule 5(1)(a) of the Rules is not attracted, petitioners other than petitioners 4 to 6 are entitled to continue to run the shops till 31.3.2012. Since prosecution against the petitioners under Section 55(a) of the Abkari Act stands quashed, petitioners are entitled to claim preference for the next year, subject to the Abkari Policy relevant for consideration for the year 2012-2013. The writ petition is disposed of as above. HARUN-UL-RASHID, Judge. bkn/-