IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 WP(C).No. 7393 of 2009(T) ----------------------------------- PETITIONER(S): ---------------------- K.K.SOMAN, S/O.KUMARAN,AGED 52 YEARS, KAPILAMMOOTTIL HOUSE, MAMALAKANDAM,KUTTAMPUZHA VILLAGE,KOTHAMANGALAM. BY ADV. MR.ALEXANDER JOSEPH RESPONDENT(S): ------------------------ 1. STATE OF KERALA,REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF EXCISE, GOVERNMENT SECRETARIAT,TRIVANDRUM. 2. THE DISTRICT COLLECTOR,ERNAKULAM. 3. THE ASST.EXCISE COMMISSIONER, ERNAKULAM. 4. THE CIRCLE INSPECTOR OF EXCISE, EXCISE CIRCLE, KOTHAMANGALAM. 5. SRI.V.K. SUKUMARAN, S/O.KELA, AGED ABOUT 48 YEARS, VERAMPLACKAL HOUSE, KAVANA, VAZHAKULAM.PO, MUVATTUPUZHA. R1 TO R4 BY GOVERNMENT PLEADER SMT.K.R. DEEPA R5 BY ADV. MR.JOICE GEORGE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/06/2009, ALONG WITH WPC NO.14108 OF 2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 7393/2009-T APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE LICENSE ISSUED BY THE 3RD RESPONDENT. EXT.P2: COPY OF THE ORDER DATED 13/02/2009 OF THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE Rs/ THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).Nos.7393/2009-T, 14108/09-G, 15550/09-K & 15590/09-P = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 17th day of June, 2009. JUDGMENT 1.The petitioners in these cases claim that they were found to be pre-qualified for being considered for allotment of shops by draw of lots in 2007-08, but they lost in the lots. They say that those who came in successful through draw of lots for the year 2007-08, were permitted to continue as licensees for 2008-09 and tagging alone the pre-qualification they had for 2006-07 or before that, such licensees would be eligible to have priority in terms of Clause 3 of the Abkari Policy of the State for the year 2009-2010. Such grant of priority is challenged as one dependent on draw of lots in as much as, in 2007-08, the entry as licensee was on the basis of lots and such benefit on the basis of WP(C)7393/09 & con.cases -: 2 :- lots should not be permitted to be a ground for reckoning such conduct of shops for the purpose of priority in terms of the Policy. It is also argued that the policy of granting priority on the basis of prior experience of three years is essentially only a window throwing open the hidden agenda behind the Policy which would be clear if the veil of the Policy pierced. It is pointed out that, in effect, only people who were running the shops for the prior year 2008-09, would be eligible for the shops in 2009-2010. It is further argued that the provision for priority takes off the concept of auction which is the mode provided by the provisions in Section 18A of the Abkari Act and the relevant Rules and this amounts to hostile discrimination and exclusion of participants in the auction while conferring benefits exclusively on people who are in the field. The learned counsel for the petitioners also pointed out that Clause 2 of the Policy, which provides for reduction in the licence fee, is itself an infraction of the interest of the State in as much WP(C)7393/09 & con.cases -: 3 :- as the Abkari laws provide for such a reduction only in cases where there is none available to bid in auction. 2.The beneficiaries of the experience for the year 2006-07, that is to say, the petitioners and others, who participated in the auction of 2007-08, did not really participate in an auction but it was only a choice by lot. The petitioners participated in that process and at any rate, at this distance of time, they cannot turn round to challenge that procedure. Those, who succeeded in the draw of lots in 2007-08, indisputably conducted the shops in 2007-08 and 2008-09 by virtue of the renewal. Therefore, whatever be the modality of the entry, the fact remains that there are persons who have a continuous experience from 2006 to 2009, including the period during which they became the licensees by virtue of draw of lots. A survey of different provisions of the statute law in different matters, would show that draw of lots as a mode of placing people in chairs WP(C)7393/09 & con.cases -: 4 :- which may even be the choicest and costive ones, is not an anathema. Therefore, if draw of lots is permissible and if a person comes into the field by that process, the experience that he gains after assuming office cannot be ignored on the premise that his entry was on the basis of draw of lots. Therefore, that contention fails. 3.The plea of the petitioners that the procedure of granting priority excluding auction infracts the statutory provision, comments consideration. But, as pointed out by the learned Government Pleader, the Hon'ble Supreme Court of India has granted leave on the questions of law relatable to any discriminatory exclusion on this basis. However, the Apex Court has not granted any stay of such provisions in the Policy. Therefore, I deem it appropriate to leave open such issues, however, refusing to grant any order in favour of the petitioners on that ground. 4.In so far as the reduction in the licence fee is WP(C)7393/09 & con.cases -: 5 :- concerned, the Government is a prime repository of the trust created by the Indian citizenry and the discharge of the duties of the trustee includes the obligation to protect the exchequer. If the State Government are well advised in reducing the licence fee even while excluding the auction, it may tantamount to acting against the interest of the exchequer. However, the petitioners cannot make out a grievance out of it since in these writ petitions they are not prosecuting any public interest but are essentially ventilating their private grievances. For the aforesaid reasons, these writ petitions fail and they are accordingly dismissed subject to the clarification issued above regarding the leaving open of some contentions. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/170609