IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 9TH FEBRUARY 2010 / 20TH MAGHA 1931 WA.No. 228 of 2010 -------------------- AGAINST THE JUDGEMENT IN WPC.38/2010 Dated 01/02/2010 .................... APPELLANT(S): PETITIONERS: -------------------------- 1. RAVI, AGED 53 YEARS, S/O.KESAVAN, THARAYIL HOUSE, PALLIPPATTU MURI, THRIKKUNNAPPUZHA VILLAGE, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT. 2. SAJI, AGED 26 YEARS, S/O.KRISHNANKUTTY, VALLOOR HOUSE, KANNAMANGALAM THEKKU MURI, KANNAMANGALAM VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.C.C.THOMAS, SENIOR ADVOCATE SRI.M.G.KARTHIKEYAN RESPONDENT(S)/RESPONDENTS: --------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY, TAXES (A) DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF EXCISE, EXCISE COMMISSIONERATE, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM. 3. THE DEPUTY COMMISSIONER OF EXCISE, ALAPPUZHA. 4. THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, KARTHIKAPPALLY, ALAPPUZHA DISTRICT. BY SENIOR GOVT. PLEADER SRI.BENNY GERVASIS THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09/02/2010, ALONG WITH WA NOS.229 & 231/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ------------------------------ W.A.Nos.228,229 & 231/2010 ------------------------------ Dated this, the 9th day of February, 2010 JUDGMENT Balakrishnan Nair, J. W.A.No.228/2010: The writ petitioners are the appellants. The facts of the case as stated by the appellants are as follows: The appellants were licensees of toddy shops in Group No.V/2009-10 of Karthikappally Excise Range. Samples of coconut toddy taken from T.S.No.28/2009-2010, which is one of the shops in the aforementioned group, were found to contain 8.40% Volume by Volume of ethyl alcohol, which is higher than the prescribed limit of 8.1% Volume by Volume. Upon receipt of the report of the same, the Excise Commissioner, Thiruvananthapuram issued Ext.P9 show cause notice, proposing to cancel the licences of all their toddy shops under Section 26(b) of the Abkari Act read with Rules 5(19) and 7(31) of the Kerala Abkari Shops Disposal Rules, 2002. The notice was preceded by suspension of the licences of the shops pending decision in the WA Nos.228,229 & 231/2010 - 2 - matter. The appellants submitted their explanation. The Excise Commissioner, after hearing them through counsel and considering the objections filed by them, passed Ext.P13 order dated 19.12.2009, cancelling the licences of all the toddy shops in the aforementioned group. Aggrieved by the said order, the appellants preferred the Writ Petition. The learned Single Judge, after hearing both sides, dismissed the same and hence this appeal. 2. We heard the learned senior counsel Sri.C.C.Thomas for the appellants. The learned senior counsel submitted that the prosecution for violation of Rule 9(2) of the Kerala Abkari Shops Disposal Rules, that is, selling coconut toddy containing alcohol in excess of 8.1% Volume by Volume, has been stayed by the Apex Court as per Ext.P11 interim order dated 4.12.2009. As per that order, the prosecution for violation of the aforementioned rule before the filing of the Writ Petition by the appellants before this Court was stayed. The Writ Petition filed by them was dismissed by this Court by Ext.P7 judgment dated 26.10.2009. According to the learned senior counsel, since the WA Nos.228,229 & 231/2010 - 3 - prosecution is stayed, there cannot be any further proceedings by way of cancellation of the licence. 3. We notice that Section 26(b) of the Abkari Act permits cancellation of licence for breach by the holder of such licence or permit or by his servant, or by any one acting with his express or implied permission on his behalf, of any of the terms and conditions of such licence or permit. For the breach of rules, the licensee could be prosecuted under Section 56(b) and also under Section 57(a) of the Abkari Act. We think, both the proceedings are distinct and different. For selling coconut toddy having ethyl alcohol in excess of the prescribed limit, action under Section 26(b) of the Abkari Act can be taken for cancelling the licence. Simultaneously, the licensee can be prosecuted and if the prosecution is successful, he can be sent to jail also. So, if the prosecution is stayed, it does not mean that action under Section 26(b) is barred. In this context, we refer to a submission made by the learned senior counsel, relying on certain observations in Ext.P14, which is an interim order dated 21.3.2007, passed in a batch of Writ Petitions WA Nos.228,229 & 231/2010 - 4 - challenging the abkari policy of the Government concerning grant of licence to run toddy shops during the year 2008-09. In the context of disqualification to participate in the auction with reference to pending proceedings like prosecution etc., the learned Single Judge stated as follows: “13. It is also directed that if any offence other than under Section 56 is charged and if this Court has stayed the proceedings under such case as regards the offence other than under Section 56, such case shall also be treated as cases 'exonerated by Courts', for the purpose of Rule 5(1)(a).” We think, the above observations have nothing to do with the present case. The learned senior counsel brought to our notice that the above interim order has been upheld by the Division Bench and the S.L.P attempted against the said judgment was dismissed by the Apex Court also. But, still, we notice that Ext.P14 is only an interim order. It cannot be pressed into service as a binding precedent. We think, for the proposition that proceedings to cancel the licence and to prosecute the delinquents can be taken simultaneously, no authority is WA Nos.228,229 & 231/2010 - 5 - required. The same is evident from the scheme of the Act. We think, the order quoted above, passed by the learned Single Judge concerning the abkari policy of last year, does not, in any way, go against the above proposition. 4. The learned Single Judge, we notice, has dismissed the Writ Petition relying on another ground also. The learned Judge noticed that the appellants prayed for stay of the proceedings for cancellation of the licence before the Apex Court along with other interim reliefs. But, the Apex Court granted stay of prosecution only. So, the learned Single Judge took the view that this Court is not competent to consider the grievance raised by the appellants against the cancellation of the licence or rather the appellants are barred from taking such a plea before this Court, after failing to get an order from the Apex Court. We find that the view taken by the learned Single Judge is a plausible view. In the result, we find no reason to interfere with the judgment under appeal and accordingly, the Writ Appeal is dismissed. WA Nos.228,229 & 231/2010 - 6 - W.A.Nos.229 & 231/2010: 5. In view of the judgment in W.A.No.228/2010, these appeals are also dismissed. K. Balakrishnan Nair, Judge. P.N.Ravindran, Judge. nm.