IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 23RD MARCH 2011 / 2ND CHAITHRA 1933 WP(C).No. 8229 of 2011(C) ------------------------------------- PETITIONER: ------------------- CHRISTU BABU,S/O.KESARI, PANDAMCODU PUTHEN VEEDU, PARASUVAIKKAL P.O.,THIRUVANANTHAPURAM. BY ADV. SRI.M.SREEKUMAR. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVT., DEPARTMENT OF TAXES, SECRETARIAT, THIRUVANANTHAPURAM – 695 001. 2. COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM – 695 001. 3. DEPUTY COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM – 695 001. 4. DEPUTY EXCISE COMMISSIONER, PALAKKAD – 678 001. R1 TO R4 BY GOVERNMENT PLEADER SRI. A.J. VAGHESE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/03/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO.8229 OF 2011 -------------------------------------------- Dated this the 23rd day of March, 2011 JUDGMENT The petitioner was granted Exts.P1 to P3 licences for running toddy shops bearing Nos.5,7 and 8 of Group II of Nedumangadu Excise Range for the year 2010-2011. This Writ Petition has been filed mainly challenging Ext.P8 order passed by the second respondent by invoking powers under Section 26(b) of the Abkari Act r/w Rule 7(15), 7(29) and 7 (31) of the Kerala Abkari Shops Disposal Rules, 2002 (for short 'the Rules'). Rule 7(15) of the Rules reads thus:- “Subject to the above provisions every shop shall be kept open as prescribed in sub-rule (10) unless it's temporary or permanent closure is authorized or ordered by the Commissioner of Excise. In every shop such supply of toddy or foreign liquor, as the Commissioner of Excise or the Joint Commissioner of Excise or Deputy Commissioner of Excise may consider sufficient to meet the local requirement, shall be maintained. Shops not opened within one month from the date of receipt of confirmation of sale of shop of privilege and shops once opened but in which the sales have been discontinued for more than 30 days consecutively, shall be liable to be re-sold or disposed otherwise at the risk and loss of the licensees.” 2. Section 26(b) of the Abkari Act deals with the power to recall W.P.(C) NO.8229/2011 2 licences etc. There cannot be any doubt with respect to the competency of the second respondent in exercising the powers under Section 26 of the Abkari Act to cancel licences . Therefore, the question to be considered is whether the second respondent was justified in invoking the powers under Section 26 of the Abkari Act on the ground of violation of Rule 7(15), 7 (29) and 7(31) of the Rules by the petitioner. In case shops once opened but in which sales have been discontinued for more than 30 days consecutively, going by the provisions under Rule 7(15) of the Rules, they are liable to be resold or disposed of at the risk and loss of the licencees. A scanning of the contentions in this Writ Petition would reveal that the petitioner did not refute the factual aspect that the sales in the said shops remained discontinued for more than 30 days consecutively. The contention of the petitioner is that earlier, he was issued with Ext.P4 Toddy Transport Permit by the fourth respondent. Later, he was issued with Ext.P5 whereby Ext.P4 was cancelled taking note of the liquor tragedy occurred in Malappuram district. 3. Ext.R3(a) circular dated 18.9.2010 is produced along with the counter affidavit in this Writ Petition. In the counter affidavit, the respondents have raised contentions to support and sustain Ext.P8. The W.P.(C) NO.8229/2011 3 scope of consideration in this Writ Petition is only with respect to the legality of Ext.P8. In other words, the question is whether there is violation of the provisions referred thereunder justifying invocation of the powers under Section 26(b) of the Act to issue Ext.P8. As noticed hereinbefore, the sales in the shops in question was discontinued consecutively for more than 30 days. When that be the admitted position, this Court finds no irregularity or illegality infecting Ext.P8 and warranting interference. There is not merit in the Writ Petition and accordingly, it is dismissed. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.8229/2011 4 C.T. RAVIKUMAR, J. JUDGMENT September, 2010 W.P.(C) NO.8229/2011 5