IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 WP(C).No. 13229 of 2008(Y) -------------------------------------- PETITIONER: ------------------- SHIBU, AGED 27 YEARS, S/O.SASI, PADIMOOTTILVILA VEEDU, PERUMKUZHI P.O., AZHOOR VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.C.C.THOMAS (SR.) SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW RESPONDENTS: ---------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, TAXES(A)DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE EXCISE COMMISSIONER, THIRUVANANTHAPURAM. 3. THE ASST. EXCISE COMMISSIONER, THIRUVANANTHAPURAM. 4. THE CIRCLE INSPECTOR OF EXCISE, THIRUVANANTHAPURAM. 5. ASUMA BEEVI .P., NISAM MANZIL, VAVARA AMBALAM, POTHENCODE P.O., THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.K.V.MANOJKUMAR ADV. SRI.S.MOHAMMED AL RAFI - R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).13229/2008 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER DATED 11/05/2007 IN W.P.(C).NO.14296/207 PASSED BY THIS HON'BLE COURT. EXT.P2: COPY OF THE JUDGMENT DATED 12/09/2007 IN W.P.(C).NO.14296/2007 OF THIS HON'BLE COURT. EXT.P3: COPY OF THE ORDER DATED 07/08/2007 IN COMPLAINT NO.1277/2007 PASSED BY THE LOK AYUKTA. EXT.P4: COPY OF THE ORDER DATED 19/03/2008 IN W.P.(C).NO.9284/2008 PASSED BY THIS HON'BLE COURT. EXT.P5: COPY OF THE ORDER NO.T4-2230/2008 DATED 07/04/2008 PASSED BY THE 3RD RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R5(a): COPY OF THE RESOLUTION DATED 16/04/2007 ISSUED BY POTHENCODE GRAMA PANCHAYATH. // TRUE COPY // Rs/ ANTONY DOMINIC, J. = = = = = = = = = = = = = = = = = W.P.(C) No. 13229 OF 2008 Y = = = = = = = = = = = = = = = = = Dated this the 20th June 2008 J U D G M E N T The challenge in this writ petition is against Ext. P5, an order passed by the 3rd respondent. Petitioner and 4 others are the allottees of toddy shops in Group No. I of Kazhakoottam Excise Range for the abkari year 2008-09 and this writ petition concerns only toddy shop No. 12. The complaint in this writ petition is that following the allotment when they applied for licence to conduct the shop in the building bearing Door No. PP VI/416 of Andoorkonam Village in Thiruvananthapuram Taluk, the same was rejected by Ext. P5. 2. According to the petitioner, the only reason for rejecting licence is a representation filed by the 5th respondent which was directed to be considered by this Court in Ext. P4 judgment. Petitioner complains that while the 3rd respondent dealt with the licence application of the petitioner and decided to reject the application relying entirely only on the complaint made by the 5th W.P.(C) No. 13229 OF 2008 -2- respondent, he was not given a notice or an opportunity of hearing. It is also his contention that he is entitled to the benefit of the 2nd proviso to Rule 7 (2) of the Kerala Abkari Shops Disposal Rules 2002 and the provisions contained in the abkari policy for the year 2008- 09 which permits toddy shops which were functioning in 2007-08 to continue in the same premises for the succeeding year also. 3. Learned Govt. Pleader on the other hand would submit that the petitioner was given notice before Ext. P5 order was issued. It is also his contention that as compared to the previous year there has been a change in the schedule of the shop and as a result of which the petitioner is not entitled to the protection of the 2nd proviso to sub-rule (2) of Rule 7 of the Rules. He would also contend that the shop in question has to be relocated as it is a nuisence to the residents in the locality. 4. The 5th respondent also has filed her counter affidavit and is supporting Ext. P5. According to the 5th respondent the Pothencode Grama Panchayat within whose jurisdiction the building in question is situated has resolved by Ext. R5(a) to have the shop relocated from the previous year's location. 5. I have heard the counsel for the petitioner, the learned Govt. Pleader and the counsel for the 5th respondent. W.P.(C) No. 13229 OF 2008 -3- 6. Many of the contentions that are urged before me were not dealt with by the 3rd respondent in Ext. P5. It is also seen that the changes, if any of the schedule of the shop, was not an issue that was considered in Ext. P5. From Ext. P5 it is clear that it is only because of the representation made by the 5th respondent which was directed to be considered in Ext. P4 judgment, that licence was decided to be declined to the petitioner and others. 7. While considering the application for licence submitted by the petitioner, if the licensing authority was to consider any other material adverse to the petitioner, natural justice required the licensing authority to put the petitioner on notice of those materials that are proposed to be relied on against them and they should have been given an opportunity to rebut the correctness of those materials. Though the learned Govt. Pleader canvassed for the position that the petitioner was given notice before Ext. P5 was rendered, a reading of Ext. P5 does not support this position as no such notice or opportunity of hearing is referred to anywhere in the order. The order also does not say that the petitioner had any opportunity to rebut the correctness of what was canvassed by the 5th respondent in her representation. 8. Therefore, I hold that Ext. P5 has been rendered in violation W.P.(C) No. 13229 OF 2008 -4- of the principles of natural justice and for that reason Ext. P5 will stand quashed. The reasoning of the learned Govt. Pleader that by issuing Ext. P5 they were only complying with Ext. P4 judgment of this Court does not carry much weight for the reason that this Court does not say that natural justice should be ignored while implementing the judgment. On the other hand, the judgment could be understood only as one requiring the authority to consider the representation in accordance with law. 9. For the aforesaid reasons, the writ petition is disposed of quashing Ext. P5 and the 3rd respondent will reconsider the matter giving notice to the petitioner disclosing the materials against him and the 5th respondent. They will also be given an opportunity of hearing and thereafter fresh orders in this matter will be passed by the 3rd respondent as expeditiously as possible, at any rate within 2 weeks of production of a copy of this judgment. Petitioner shall produce a copy of this judgment before the 3rd respondent for compliance. ANTONY DOMINIC JUDGE jan/-