IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 13TH AUGUST 2008 / 22ND SRAVANA 1930 WP(C).No. 21289 of 2008(H) -------------------------- PETITIONER: ------------ C.C. PRAKASH, CHARANGATT HOUSE, CHERTHALA SOUTH.P.O, CHERTHALA. BY ADV. SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT.NISHA BOSE RESPONDENTS: ------------- 1. THE DISTRICT COLLECTOR, ALAPPUZHA. 2. THE ASSISTANT EXCISE COMMISSIONER, ALAPPUZHA. 3. EXCISE CIRLCE INSPECTOR, CHERTHALA. 4. THE VILLAGE OFFICER, THANNEERMUKKOM VILLAGE, CHERTHALA TALUK, ALAPPUZHA. BY GOVERNMENT PLEADER SMT. K.R.DEEPA FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. -------------------------------------------------------- W.P.(C) 21289 of 2008 -------------------------------------------------------- Dated: AUGUST 13, 2008 JUDGMENT The challenge in this writ petition is against Ext.P5. 2. Petitioner submits that the licence in respect of toddy shop Nos.64, 65, 66, 67 and 68 of Group No.XII of Cherthala Excise Range for the period from 1.4.2008 to 31.3.2009 were recommended to be granted in his favour by Ext.P1 dated 30.3.2008. This writ petition concerns only toddy shop No.67 and in so far as that shop is concerned, it is the case of the petitioner that the building where the shop is located, is the same building where the shop was functioning in the previous year when it was licensed to another licensee. 3. Petitioner contends that in respect of shop No.67, though licence has not been issued, in respect of all other shops mentioned above, licences have been issued W.P.(C) 21289 of 2008 2 and those licences which were issued in May 2008 are produced as Ext.P14 series. It is his case that on the strength of Ext.P1, though formal licence was not issued, he had commenced business from 1.4.2008 with knowledge and consent of the authorities. This contention of the petitioner is sought to be supported by placing reliance on Ext.P15, the register maintained by the petitioner under Rule 7(20) of the Abkari Shops Disposal Rules, 2002. The register contains the endorsements made by the Circle inspector of Excise, Cherthala, on 24.4.2008, 17.5.2008 and 10.6.2008. From these endorsements which carry the signature of the Circle inspector of Excise, it is clear that the shop in question was functioning as contended by the petitioner and that this was with the full knowledge of the officials. 4. Trouble arose when Ext.P5 order was issued by the 2nd respondent ordering closure of the shop. Ext.P5 was not addressed to the petitioner and was also not issued to him. However, when the same was implemented by W.P.(C) 21289 of 2008 3 closure of TS No.67, according to him, he invoked the provisions of the Right to Information Act and obtained a copy of this document. It is also not in dispute that before Ext.P5 was issued, petitioner was not issued any notice either which is presumably for the reason that licence was not issued. On a perusal of Ext.P5, petitioner came to know that Ext.P5 was passed on the basis of Ext.P6 order dated 10.3.2008 passed by the Munsiff's Court, Cherthala in I.A.No.2539/2007 in OS 615/2007. Evidently petitioner was not a party to the suit and that order was passed long prior to 1.4.2008. 5. Now the only question that needs to be considered is whether, before issuing Ext.P5 on 17.6.2008, ordering closure of TS No.67, notice ought to have been given to the petitioner, he being the person in whose favour the licence was ordered to be granted. 6. According to the learned Government Pleader, licence was not granted to the petitioner and that even an application in that behalf was also not made as required W.P.(C) 21289 of 2008 4 under Rule 15 of the Abkari Disposal of Shops Rules 2002. Therefore, it is argued that since the petitioner was not a licensee, he was not entitled to notice when Ext.P5 was issued. 7. It is true that the learned Government Pleader is perfectly justified in her submission that the petitioner has not been issued the licence so far. But then, the fact remains that going by the statutory records maintained by the petitioner, which carries the endorsements of none other than the jurisdictional Circle Inspector of Excise, viz. Ext.P15, shop No.67 allotted to the petitioner was functioning as contended by the petitioner. If that be so, although even under the provisions of the Abkari Act, a person is entitled to run the shop only after licence is issued in his favour, the Department has accepted and recognised the fact that the petitioner was authorisedly running the shop, although licence was not issued in his favour. 8. Once that factual position is accepted by the W.P.(C) 21289 of 2008 5 Department also, in my view, a notice and an opportunity of hearing should not have been denied to him for the only technical reason that licence in the proper form was not issued in his favour In my view, by reason of Ext.P5, the valuable right of the petitioner to continue to run the shop has been affected and for that reason the order is bad for violation of the principles of natural justice. 9. Accordingly I quash Ext.P5 and direct that the 2nd respondent shall issue notice to the petitioner, hear his objections and pass fresh orders, as expeditiously as possible, and at any rate within four weeks of receipt of a copy of this judgment. Writ petition is disposed of as above. ANTONY DOMINIC JUDGE mt/-