IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 28TH SEPTEMBER 2011 / 6TH ASWINA 1933 WP(C).No. 24922 of 2011(M) ----------------------------------------- PETITIONER(S): ----------------------- SUDHEESH.P, S/O.HARIDASAN.P, AGED 39, PARAMEL HOUSE, VELLANEZHI, THIRUVAZHIYODE, OTTAPALAM, PALAKKAD DISTRICT. BY SRI.C.C.THOMAS, SENIOR ADVOCATE BY ADVS. SRI.K.N.ABHILASH SMT.R.LEELA SRI.SUNIL NAIR PALAKKAT RESPONDENT(S): -------------------------- 1. THE DISTRICT COLLECTOR, PALAKKAD DISTRICT, COLLECTORATE,PALAKKAD, PIN-678 001. 2. THE DEPUTY COMMISSIONER OF EXCISE, EXCISE DEPARTMENT, PALAKKAD, PIN-678 001. 3. THE ADDITIONAL DISTRICT MAGISTRATE, PALAKKAD DISTRICT, COLLECTORATE, PALAKKAD, PIN-678 001. 4. ASSISTANT COMMISSIONER OF EXCISE, EXCISE DEPARTMENT, PALAKKAD, PIN-678 001. 5. THE EXCISE CIRCLE INSPECTOR, OTTAPALAM CIRCLE, PALAKKAD DISTRICT, PIN-679 101. 6. SURESH KUMAR.K, S/O.SUDHAKARAN NAIR, KONNATH HOUSE, PUTHUPERIYAR, PALAKKAD, PIN-679 101. *ADDL. R7 IMPLEADED. 7. THE EXCISE COMMISSIONER, COMMISSINERATE OF EXCISE, THIRUVANANTHAPURAM. ADDL. R7 IS IMPLEADED AS PER ORDER DTD. 28/09/2011 IN IA. 15528/2011. R1 TO R5 BY GOVT. PLEADER SRI.S.ABDUL SALAM R6 BY ADV. SRI.B.GOPAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.24922/2011 APPENDIX PETITIONER(S) EXHIBITS EXHIBIT P1:- THE TRUE COPY OF THE APPLICATION DATED 18/2/2010 SUBMITTED BY THE PETITIONER. EXHIBIT P2:- THE TRUE COPY OF THE CERTIFICATE OF PREFERENCE ISSUED BY THE 3RD RESPONDENT DATED 15.9.2011. EXHIBIT P3:- THE TRUE COPY OF THE APPLICATION DATED 16.9.2011 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P4:- THE TRUE COPY OF THE DEMAND DRAFT OF STATE BANK OF TRAVANCORE DATED 15.9.2011 IN FAVOR OF THE DEPUTY COMMISSIONER OF EXCISE. EXHIBIT P5:-- THE TRUE COPY OF THE CERTIFICATE ISSUED BY KERALA STATE TODDY WORKERS WELFARE FUND BOARD DATED 14.9.2011 IN FAVOR OF THE PETITIONER. EXHIBIT P6:- THE TRUE COPY OF IDENTITY OF INTENDING PURCHASER OF TODDY SHOP 21.3.2011 CARD. EXHIBIT P7:- THE TRUE COPY OF THE ENTRY FEE RECEIPT ISSUED BY THE EXCISE DIVISION OFFICE, PALAKKAT DATED 16.9.2011. EXHIBIT P8:- THE TRUE COPY OF THE PROCEEDINGS ORDER NO.P5-9000/2011 DATED 7.9.2011 WITH REGARD TO THE PUBLIC SALE OF TODDY SHOP FOR THE YEAR 2011- 2012 IN PALAKKAD DISTRICT OF THE 2ND RESPONDENT. P9:- COPY OF THE GUIDELINES FOR THE SALE OF TODDY SHOPS FOR THE YEAR 2011- 12. P10:- COPY OF THE PETITION DTD. 26.9.2011 SUBMITTED BEFORE THE EXCISE COMMISSIONER. RESPONDENTS' EXHIBITS R5:- COPY OF THE COUNTER FOIL OF THE CHALAN DT. 16.9.2011 ISSUED IN FAVOUR OF THE 6TH RESPONDENT FOR RS. 3000/-. R5(a):- COPY OF THE COUNTER FOIL OF THE CHALAN DTD. 16.9.2011 ISSUED IN FAVOUR OF THE 6TH RESPONDENT FOR RS. 136200/-. R5(b):- COPY OF THE MINUTES OF THE SALE OF TODDY SHOPS IN GROUP NO.X OF CHERPULASSERY RANGE CONDUCTED ON 16.9.2011. TRUE COPY P.A. TO JUDGE tss HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO.24922 OF 2011 ------------------------------- DATED THIS THE 28TH DAY OF SEPTEMBER, 2011 JUDGMENT The matter relates to the sale of toddy shops in Group No.10 of Cherpulassery Range in Palakkad District. This writ petition is filed seeking to declare that the sale of toddy shops in Goup No.10 of Cherpulassery Range in Palakkad District as illegal and ultravires to Rule 5 of the Abkari Shops Disposal Rules, 2002, and a direction commanding the lst respondent to conduct re-sale of toddy shops in Group 10 of the Cherpulassery Range in Palakkad District and to quash all further proceedings for sale of the said toddy shops. 2. Petitioner is an Abkari licensee. He holds abkari licence to conduct Group No. 10 toddy shops of Cherpulasseri Range, Palakkad District which includes toddy shop Nos.14, 17, 18, 50, 51 and 53. Petitioner submits that he has been continuing the business for the last nine years and that the licences of the -2- W.P.(C).No.24922/2011 aforesaid toddy shops are valid upto 30/9/2011. Ext.P9 is the copy of the guidelines for the sale of toddy shops for the year 2011-12. Rule 5(1)(a) of the Kerala Abkari Shops Disposal Rules, 2002 stipulates that while giving privilege, preference shall be given to those licensees, who has conducted toddy shops during the period 2010-11 provided no abkari case is registered against him other than Section 56 of the Act. Rule 5(2) of the Rules stipulates that the Circle Inspector of Excise shall certify the eligibility of preference as required in sub rule (1). It is provided that if none of the applicants are eligible for getting preference under Rule 5(1)(a) of the Rules, the name of eligible applicants shall be put to lot by the officer conducting the sale in the presence of the applicants and the name of the successful applicant drawn by the lot shall be provisionally declared by the officer for conducting the sale of toddy. The contention of the petitioner is that he is entitled to get renewal of licence as per Rule 5(1)(a) of the Rules. Ext.P2 is the preference certificate issued by the Circle Inspector of Excise on -3- W.P.(C).No.24922/2011 15/9/2011 as per Rule 5(2) of the Rules. It is not disputed that no other person has got preferential claim other than the petitioner. 3. In the writ petition it is averred that the petitioner participated in the allotment held on 16/9/2011 and that he has submitted all the documents as required by the rules along with Ext.P3 application before the respondents. Ext.P3 is the copy of the application dated 16/9/2011. It is also averred that the preference to which the petitioner is entitled to is denied to him by respondents 3 and 5 stating that the petitioner was late by ten minutes and informed that the sale of toddy shops be conducted by lot and that the petitioner is free to participate in the lot. The 6th respondent won the lot. 4. The 6th respondent filed a counter affidavit. In paragraph 6 of the counter affidavit, it is averred that the 6th respondent has not seen the petitioner submitting a document like Ext.P2 for the perusal of the authorities concerned, while the public auction was conducted and that had it been produced, no other -4- W.P.(C).No.24922/2011 parties would have been permitted to participate in the public action as it was the practice and procedure. 5. In the statement filed by the learned Government Pleader on behalf of the Deputy Commissioner of Excise, Palakkad, it is stated that toddy shops of TS Group 10 of Cherpulassery Range was put for sale at about 1.00 p.m., that applications were called for from intending purchasers for the grant of privilege, that no applications were received from anyone in the preferential category and therefore seven applications received from general category including that of the petitioner was taken up. All the names were put to open lot and the 6th respondent won the lot and his application was provisionally considered by the sale officer. 6. The learned counsel for the petitioner submits that he had produced all the documents including Ext.P2 along with Ext.P3 application. It is not disputed by any of the parties that when all the applications were taken up for consideration, the application preferred by the petitioner was also before the authorities including -5- W.P.(C).No.24922/2011 Ext.P2 preference certificate. In such circumstances, the learned Senior Counsel appearing for the petitioner submits that the authority should have extended the privilege to the petitioner and should not have considered the applications in open sale. It is not a case where the petitioner has not attended the allotment on 16/9/2011 and at the time when the petitioner was present, the authorities had considered the matter in open category. Ext.R5(b) also would go to show that the petitioner was present when the authorities had called all the applications in the general category. In these circumstances, this Court is of the view that the request of the petitioner for preference under Rule 5(1)(a) requires reconsideration. In the circumstances of the case, this writ petition is disposed of with a direction to respondents 1 to 3 to re-consider the matter afresh and pass appropriate orders, after hearing the petitioner and the 6th respondent, within a period of ten days from -6- W.P.(C).No.24922/2011 today. Till the matter is decided afresh, all further proceedings for sale of toddy shops in Group No. 10 of Cherpulassery Range, Palakkad District shall be kept in abeyance. HARUN-UL-RASHID, Judge. kcv.