IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 17TH MARCH 2010 / 26TH PHALGUNA 1931 WP(C).No. 7460 of 2010(F) ------------------------- PETITIONER(S): --------------- 1. RADHAKRISHNAN,S/O.DIVAKARAN, MEKKINKARA PUTHENVEEDU,KUNNATHUKAL DESOM, NEYYATTINKARA TALUK,THIRUVANANTHAPURAM DISTRICT. 2. KRISHNANKUTTY,S/O.MADHAVAN, KAIPPALLIMADAM HOUSE,VELIYANADU VILLAGE, KUTTANADU TALUK,ALAPPUZHA DISTRICT. 3. RAJAN,S/O.THOMAS,PALLITHARA PURAYIDAM HOUSE, VIZHINJAM DESOM,NEYYATTINKKARA TALUK, THIRUVANANTHAPURAM DISTRICT. 4. MANOHARAN,CHARUVILAKATHU HOUSE, THURUTHUMMOOLA DESOM,VILAPPIL HOUSE,NEYYATTINKARA TALUK,THIRUVANANTHAPURAM DISTRICT. 5. SREEKUTTAN,S/O.SRINIVASAN,SREEVILASAM HOUSE,THONNACKAL DESOM,THIRUVANANTHAPURAM TALUK. BY ADV. SRI.M.G.KARTHIKEYAN RESPONDENT(S): --------------- 1. STATE OF KERALA REP.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, THIRUVANANTHAPURAM. 4. THE EXCISE INSPECTOR,EXCISE RANGE OFFICE THIRUVANANTHAPURAM. 5. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. WP(C).No. 7460 of 2010 -2- 6. THE CIRCLE INSPECTOR OF EXCISE, THIRUVANANTHAPURAM. 7. VINU.B,S/O.KURIAN,ANKODE LAKSHAM VEEDU, KALLOORKARA,MELTHONNACKAL VILLAGE,CHIRAYINKEEZHU TALUK,THIRUVANANTHAPURAM DISTRICT. ADV. SRI.GEORGE POONTHOTTAM FOR R7 GP SRI.V.MANU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/03/2010, ALONG WITH W.P.(C).7457/10 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 7460 of 2010 APPENDIX EXHIBITS EXT.P1- PHOTOCOPY OF THE CRIME AND OCCURRENCE REPORT IN CR.NO.99/09 REGISTERED BY THE 4TH RESPONDENT EXT.P2- PHOTOCOPY OF THE CHEMICAL ANALYSIS CERTIFICATE DATED 7.10.09 ISSUED BY THE ASST.CHEMICAL EXAMINER TO GOVT. OF KERALA EXT.P3- PHOTOCOPY OF THE ORDER NO.XA7-30869/09 DATED 11.2.10 PASSED BY THE 2ND RESPONDENT EXT.P4- PHOTOCOPY OF THE INTERIM ORDER DATED 25.1.10 IN SLP(C).941- 945/2010 PASSED BY THE HONOURABLE SUPREME COURT EXT.P5- PHOTOCOPY OF THE JUDGMENT DATED 17.6.09 IN W.P.(C).8096/09 PASSED BY THIS HONOURABLE COURT EXT.P6- PHOTOCOPY OF THE JUDGMENT DATED 18.3.08 IN W.P.(C).9080/08 PASSED BY THIS HONOURABLE COURT EXT.P7- PHOTOCOPY OF THE ORDER DATED 21.3.07 IN W.P.(C).9037/07 PASSED BY THIS HONOURABLE COURT EXT.P8- PHOTOCOPY OF THE JUDGMENT DATED 5.2.09 IN W.P.(C).3910/09 PASSED BY THIS HONOURABLE COURT EXT.P9- PHOTOCOPY OF THE ABKARI POLICE, G.O.(MS).38/2008/TD DATED 29.2.08 ISSUED BY THE 1ST RESPONDENT EXT.P10- PHOTOCOPY OF THE LETTER DATED 22.2.10 SENT TO THE RESOPNDENTS 3 TO 6 EXT.P11- PHOTOCOPY OF THE JUDGMENT DATED 25.2.10 IN W.P.(C).6310/10 PASSED BY THIS HONOURABLE COURT EXT.P12- PHOTOCOPY OF THE LETTER DATED 25.2.10 SUBMITTED BEFORE THE 5TH RESPONDENT EXT.P13- PHOTOCOPY OF THE LETTER DATED 5.3.10 SUBMITTED BEFORE THE EXCISE COMMISSIONER EXT.P14- PHOTOCOPY OF THE ORDER NO.S10-18010/10 DATED 4.3.10 PASSED BY THE 5TH RESPONDENT EXT.P15- PHOTOCOPY OF THE JUDGMENT DATED 1.12.09 IN W.P.(C).31562/09 PASSED BY THIS HONOURABLE COURT (TRUE COPY) P.A TO JUDGE ANTONY DOMINIC, J ------------------- W.P.(C)S.7457, 7460, 8780 & 8816 of 2010 -------------------- Dated this the 17th day of March, 2010 JUDGMENT The issue raised in these writ petitions being connected, the cases were heard together and are disposed of by this common judgment. 2. For convenience, I shall refer to the facts in W.P.(C). 7460/2010. 3. Petitioners herein were the licensees of toddy shops in Group No.IV in Thiruvananthapuram Excise Range for the Abkari year 2009-10. Based on Ext.P1, the Crime and Occurrence Report, C.R.99/2009 was registered against the petitioners under Section 57(a) and 56(b) of the Abkari Act. Ext.P1 crime and occurrence report and Rule 9(2) of the Kerala Abkari Shops Disposal Rules, 2002 (in short 'the Rules') were challenged before this Court in W.P.(C).37005/2009. Based on the judgment of this Court in Komalan v. State of Kerala and Others (2009 (2) W.P.(C).7460/10 & Connected Cases. 2 KLT 744), the writ petition was dismissed. Petitioners filed Special Leave Petition before the Supreme Court and by Ext.P4 interim order, continuance of the prosecution was stayed. Subsequently proceedings were initiated for cancellation of the licence and finally the licences were cancelled by Ext.P3 order. That order was also unsuccessfully called in question before this Court and the writ petition and writ appeal was dismissed. 4. Privilege to conduct toddy shops for the remaining period of 2009-10 was resold on 5.3.2010. At that stage, petitioners claimed preference under Rule 5(1)(a) of the Rules by filing Ext.P10 representation. Complaining that there was delay in considering Ext.P10, they approached this Court by filing W.P.(C). 6310/2010. That writ petition was disposed of by Ext.P11 judgment directing the District Collector to consider their aforesaid claim for preference. The District Collector considered the matter and by Ext.P14 order rejected the preference claimed by the petitioners and the shops were also resold to others. It was at that stage, this writ petition was filed challenging Ext.P14 order. W.P.(C).7460/10 & Connected Cases. 3 5. At the time when the writ petition was considered for admission, taking into account the fact that confirmation of resale was pending consideration of the Commissioner of Excise, this Court by order dated 9.3.2010, directed the parties to appear before the Commissioner on 11.3.2010 and the Commissioner was asked to consider Ext.P15 objections filed by the petitioners against confirmation and to pass orders forthwith. Accordingly parties were heard and the Commissioner by order dated 16.3.2010, confirmed the resale subject to the conditions mentioned in the said order. 6. Insofar as the writ petitioners in W.P.(C).7457/2010 is concerned, apart from the fact that they were the licensees of toddy shops in Group No.II of Thiruvananthapuram Excise Range and were accused in C.R.100 and 101/2009, facts are similar in all other respects. 7. Petitioners in W.P.(C)s. 8780 & 8816/2010 are the persons who are the successful bidders in the resale that was conducted W.P.(C).7460/10 & Connected Cases. 4 on 5.3.2010 and their complaint is that the Excise Commissioner had delayed confirmation of the resale in their favour. 8. Heard the learned counsel for the petitioners and the learned Government Pleader. 9. As already seen, the claim of the petitioners in W.P. (C)s.7460 and 7457/2010 is for preference as contemplated under Rule 5(1)(a) of the Rules. The said Rule provides that preference shall be given to the licensees who have conducted the toddy shops during the preceding three years consecutively from 2005-06, 2006-07 and 2007-08, provided no abkari case is registered against them other than under Section 56 of the Abkari Act. In this case, the fact that abkari cases have been registered against the petitioners and the fact that the offences alleged are those other than under Section 56 of the Abkari Act, are not in dispute. Therefore, in view of the admitted fact that the abkari cases for offences other than under Section 56 of the Abkari Act have been registered against the petitioners, petitioners do not satisfy the condition prescribed for preference W.P.(C).7460/10 & Connected Cases. 5 under Rule 5(1)(a) of the Rules and therefore the rejection of claim for preference by Ext.P14 order of the District Collector and the order of confirmation issued by the Commissioner of Excise cannot be faulted. 10. Learned counsel for the petitioners invited my attention to the judgment of this Court in W.P.(C).8096/09, produced as Ext.P5 in W.P.(C).7457/2010 and contended that since charges have not been framed against the petitioners, preference cannot be denied to them. However, having regard to the fact that under the Rule, on registration of crime itself a person is dis entitled to preference, the fact that charges have not beenlaid or framed, is inconsequential. That apart, I also notice that in Ext.P5 judgment the requirement that no abkari case shall be registered against a person claiming preference, is not seen noticed. Therefore, having regard to the fact that the petitioners are accused in abkari cases involving offences other than those under Section 56 of the Abkari Act, I am satisfied that the impugned orders cannot be faulted. Accordingly, W.P.(C)s.7457 and 7460/2010 will stand rejected. W.P.(C).7460/10 & Connected Cases. 6 11. Insofar as W.P.(C)s.8780 and 8816/2010 are concerned, petitioners are the persons who have been alloted the shops in the resale that was conducted on 5.3.2010. Though, as per the order dated 9.3.2010, passed in W.P.(C).7457 and 7460/2010, the Commissioner ought to have passed orders immediately after hearing the parties on 11.3.2010, the allotment has also been confirmed vide his proceedings dated 16.3.2010 only. In view of the order confining the resale, the petitioners herein are entitled to be issued the licence. It is clarified that the delay on the part of the Excise Commissioner in passing orders of confirmation, shall not result in depriving the petitioners in these writ petitions any other benefits, which they are otherwise entitled under the Rules. With this clarification and directing that necessary action in this behalf shall be taken, W.P.(C)s.8780 and 8816/2010 are disposed of. ANTONY DOMINIC, Judge mrcs