IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 20TH AUGUST 2008 / 29TH SRAVANA 1930 WP(C).No. 16675 of 2008(I) ------------------------------------- PETITIONERS: --------------------- 1. SARATH CHANDRAN, SATHYALATHIL, VARANAD P.O., CHERTHALA, ALAPPUZHA DISTRICT. 2. HARILAL KRISHNAN, THAYYIL KANDASSERIL, ARTHUNKAL P.O., CHERTHALA, ALAPPUZHA DISTRICT. 3. GEORGE C.VARGHESE, CHENNOTH, MARY VILLA, KOKKOTHAMANGALAM, CHERTHALA, ALAPPUZHA DISTRICT. 4. R.SHIBU, CHELLIKANDATHIL, MUHAMMA P.O., CHERTHALA, ALAPPUZHA DISTRICT. 5. KARUNAKARAN, UNNI NIVAS, VARANAD P.O., CHERTHALA, ALAPPUZHA DISTRICT. BY ADV. SRI.N.RAGHURAJ, ADV. SMT.K.AMMINIKUTTY. RESPONDENTS: ----------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF TAXES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF EXCISE, EXCISE COMMISSIONERATE, THIRUVANANTHAPURAM. 3. THE ASSISTANT EXCISE COMMISSIONER, ALAPPUZHA. 4. SHAILENDRAN, S/O.KUNJAPPI, PADATHARA, SECRETARY, ANJLIKKADU SOUTH SCHEDULED CASTE COLONY ASSOCIATION, AROOR, ALAPPUZHA DISTRICT. GOVERNMENT PLEADER SRI. K.V. MANOJ KUMAR FOR R1 TO R3, ADV. SRI.C.S.MANILAL FOR R4. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/08/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.16675/2008-I: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE LICENSE ISSUED BY R.3. IN RESPECT OF T.S. NO. 13/07-08 (ANJILIKKAD SHOP). EXT.P.2: COPY OF THE PROCEEDINGS OF THE R.3. BEARING ORDER NO.A-1697/67 DTD. 14/07/2007. EXT.P.3: COPY OF THE JUDGMENT DTD. 19/11/2007 IN W.P.(C).NO.27221/07. EXT.P.4: COPY OF THE COMMON JUDGMENT IN R.P.NO.14/2008 AND W.P.(C). NO.38254/2007 (D) DTD. 14/01/2008. EXT.P.5: COPY OF THE COMMUNICATION ISSUED BY THE R.3, BEARING NO.A1-850/08 DTD. 30/03/08. EXT.P.6: COPY OF THE APPLICATION DTD. 31/03/2008 SUBMITTED BY THE PETITIONERS IN RESPECT OF T.S. NO. 24/08-09 (ANJILIKKAD SHOP). EXT.P.7: COPY OF THE CHALAN EVIDENCING THE REMITTANCE OF TREE TAX AND FEE FOR TODDY TRANSPORT. EXT.P.8: COPY OF THE TODDY TRANSPORT PERMIT TO THE PETITIONER ISSUED BY THE ASST. EXCISE COMMISSIONER, PALAKKAD DTD. 01/04/2008. EXT.P.9: COPY OF THE PROCEEDINGS OF THE CIRCLE INSPECTOR OF EXCISE, CHERTHALA BEARING ORDER NO. A1-1181/08 DTD. 04/04/2008. EXT.P.10: COPY OF THE RELEVANT PAGE OF THE GOVERNMENT ORDER CONTAINING THE SCHEDULE LIMITS OF T.S. NO. 24 (ANJILIKKAD SHOP). EXT.P.11: COPY OF THE APPLICATION DTD. 05/04/2008 SUBMITTED BY THE PETITIONERS BEFORE THE R.3. EXT.P.12: COPY OF THE LETTER DTD. 07/04/2008 GIVEN BY THE R.3. EXT.P.13: COPY OF THE ABKARI POLICY FOR THE YEAR 2008-09. EXT.P.14: COPY OF THE COMMUNICATION DTD. 18/05/2007 ISSUED BY THE R.3. RESPONDENTS' EXHIBITS: EXT.R4.A: COPY OF THE CERTIFICATE ISSUED BY THE SCHEDULED CASTE/SCHEDULED TRIBE DEVELOPMENT OFFICER DTD. 21/04/07. EXT.R4.B: COPY OF THE ROUGH SKETCH OF THE AREA. EXT.R4.C: COPY OF THE JUDGMENT DTD. 19/07/02 IN O.P.18582/2002 (S). EXT.R4.D: COPY OF THE COMPLAINT/ MASS PETITION DTD. 20/03/07. EXT.R4.E: COPY OF THE MASS PETITION DTD. 10/04/2007. W.P.(C). NO.16675/2008: EXT.R4.F: COPY OF THE MASS PETITION DTD. 20/04/07. EXT.R4.G: COPY OF THE CERTIFICATE ISSUED BY THE SC/ST DEVELOPMENT OFFICER OF THE PATTANAKKADU BLOCK. EXT.R4.H: COPY OF THE COMPLAINT FILED BY THE R.4. HEREIN BEFORE THE R.3. DTD. 03/05/2007. EXT.R4.I: COPY OF THE JUDGMENT DTD. 17/07/07 IN W.P.(C). NO. 14515/07 (C). EXT.R4.J: COPY OF THE ORDER NO. A1-1697/07 DTD. 14/07/07 OF THE R.3. //TRUE COPY// P.S. TO JUDGE. prv. ANTONY DOMINIC, J. = = = = = = = = = = = = = = = = = W.P.(C) No. 16675 OF 2008 I = = = = = = = = = = = = = = = = = Dated this the 20th day of August 2008 J U D G M E N T The challenge in this writ petition is against Ext. P9 and the petitioners are also seeking a direction requiring the 3rd respondent to issue licence in respect of T.S. No. 24/08-09 of Group No. V of Kuthiyathode Excise Range in the premises mentioned in Ext. P6 application. Consequential directions are also sought for. 2. The petitioners are the licensees of toddy shop Nos. 23 to 27 of Group V of Kuthiyathode Excise Range. In so far as this writ petition is concerned the controversy is in relation to toddy shop No. 24, known as Anjilikkadu Shop, which carried the number T.S. 13 in the previous years and this is evident from Ext. P1 licence for the year 2007-08. 3. Petitioners submit that the toddy shop No. 13 now renumbered as toddy shop No. 24 was functioning in building No. XIII/274. This factual position is seen admitted by the Asst. Excise W.P.(C) No. 16675 OF 2008 -2- Commissioner, Alappuzha in Ext. P14 certificate issued on 1.8.2007 where he says that the shop in question was functioning in the premises referred to above since 1983-84 till 2006-07 except 2002-03. In paragraph 2 of the counter affidavit filed by respondents 1 to 3 also this factual position is not disputed. 4. Petitioners contend that in 2007, when also they were the licencees, the 4th respondent herein filed a writ petition before this Court as W.P.(C) No. 14515/07 seeking, inter alia, to quash the license granted in their favour and on account of the obstruction to the functioning of the shop, the petitioners had also approached this Court by filing W.P.(C) No. 13713/07, seeking orders of police protection. Those writ petitions were disposed of by a Division Bench of this Court by a common judgment, produced as Ext. R4(i), granting police protection and also directing that the Assistant Excise Commissioner shall consider Ext. P9 filed by the 4th respondent for shifting the shop, with notice to all concerned. It is stated that in pursuance to the direction in Ext. R4(i) judgment the Asst. Excise Commissioner conducted an enquiry and passed Ext. P2 order dated 14.7.2007. 5. Dealing with the claim of the 4th respondent about the W.P.(C) No. 16675 OF 2008 -3- existence of a Scheduled Caste Colony named as Anjilikkadu South Colony, in Ext. P2 order, the Asst. Excise Commissioner held in paragraph 2 as follows: “The above boundaries stated by the petitioner comprises almost entire scheduled limits prescribed for T.S. No. 13/07-08 Anjilikkad as per Gazette notification and the entire area of the said colony will amount to around 2 sq. km. The toddy shop in question is located in about the north western side of the above area. The Scheduled Caste families are residing in the area mingled with members of other communities viz. Ezhava, Dheevara, Latin Catholic...etc.” Proceeding further, in the penultimate paragraph of the said order it has been held as follows: “The shop in question was licensed/Renewed till 2007-08 by observing the stipulation mentioned in proviso to Rule 7(2). Hence the petition dated 03-05-07 submitted by Sri. Shailendran (Ext. P9) cannot be considered favourably at present. However, taking into account of all facts and circumstances of the case the matter will be taken up before the Higher authorities of the department to reschedule the scheduled limits of the T.S. No. 13/07-08 of Anjilikkad of Kuthiyathodu Range to locate the above shop in an unobjectionable site as there is no unobjectionable site in the present scheduled limits of the shop to redress the grievance of the petitioner.” 6. Against Ext. P2 order, the 4th respondent filed a writ petition as W.P.(C) No. 27221/07 and the petitioners also W.P.(C) No. 16675 OF 2008 -4- approached this Court by filing W.P.(C) No. 38254/07. W.P.(C) No. 27221/07 alone was disposed of by this Court by Ext. P3 judgment dated 19.11.2007, directing that what is stated in the last paragraph of Ext. P2 herein, which is extracted above, shall be finalised before the end of February, 2008 without fail. 7. Petitioners submit that apprehending that the directions in Ext. P3 judgment would affect their continued running of the toddy shop during the abkari year 2007-08 itself, they filed a review petition before this Court as R.P. No. 14/08. The review petition and W.P.(C) No. 38254/07 filed by them were disposed of by Ext. P4 judgment. Dealing with the review petition this Court clarified that their apprehension was misplaced since the direction in the judgment to the Asst. Excise Commissioner was specific that any re-scheduling of the limits would be only for the subsequent abkari years. The learned Judge did not interfere with Ext. P2 order in any manner. It was also directed that since the rescheduling , going by the judgment sought to be reviewed, is to be considered by the end of February, 2008, it is only appropriate that the review petitioners, are also heard in the matter, though the continued right to be heard would depend upon the question whether he is the licensee. While W.P.(C) No. 16675 OF 2008 -5- matters stood thus, and the petitioners continued to run the shop in the premises in question till the end of the abkari year. 8. In the meanwhile, following the directions contained in Ext. P4, it is stated that the parties were heard by an officer of the Excise Department, on 11.2.2008. While matters stood thus, Ext. P13 abkari policy was declared by the Government on 29.2.2008, clauses 3 and 4 of which, being relevant, is extracted below for reference: “3. Toddy shops which were functioning in 2007- 08 will be allowed to function in 2008-09 also. 4. Toddy shops which were granted relaxation in distance rule will continue to enjoy the benefit during 2008-09 also, including those toddy shops newly sanctioned and functioning in 2007-08.” 9. During the abkari year 2008-09, conceding the preference that the petitioners were eligible, Ext. P5 notice was issued by the Asst. Excise Commissioner granting them the privilege of running the shop in question. On receipt of Ext. P5, it is stated that the petitioners submitted Ext. P6 application and thereafter they have also remitted the tree tax that is payable and toddy transport permit was also issued to them, which are Exts. P7 and P8. In pursuance to the hearing on 11.2.2008, Ext. P10 order was issued by the W.P.(C) No. 16675 OF 2008 -6- Government on 19.3.2008 modifying the schedule of toddy shop No. 24, by including the schedule of T.S. No. 43 of Group IV of Kuthiyathodu Excise Range known as Kuzhiyil shop. Subsequently, on 4.4.2008 the 3rd respondent issued Ext. P9 order informing the petitioners that the application for licence submitted by them for toddy shop No. 24 in building No. 389/11-1/2 cannot be entertained and is rejected. Proceeding further, they were directed to find out another unobjectionable site within the newly extended schedule limits and submit a fresh application for licencing T.S. No. 24/08-09 for the year 2008-09. It is on receipt of Ext. P9, the writ petition was filed, in which order dated 19.6.2008 was passed directing the 3rd respondent to issue licence to the petitioners in the premises mentioned in Ext. P6 on a provisional basis. It is stated that in compliance with the said order licence has been issued on 5.7.2008. 10. Counsel for the petitioners submits that since 1983-84 onwards, as is evident from Ext. P14, the shop in question has been located in the building mentioned in Ext. P6 except for the year 2002-03. It is stated that if that be so, even if it is accepted that the Scheduled Caste colony is in existence, they are eligible for the W.P.(C) No. 16675 OF 2008 -7- benefit of the second proviso to Rule 7 of the Kerala Abkari Shops Disposal Rules, 2002. It is also stated that by Ext. P13, the Government declared its abkari policy on 29.2.2008. Therefore, Ext. P9 decision rendered on 4.4.2008 could have been only consistent with the abkari policy declared by the Government. 11. Yet another contention raised by the petitioners is that there is no other unobjectionable site available either in the original schedule of the shop or in the schedule as modified by Ext. P10. This contention of the learned counsel for the petitioners is sought to be supported by making reference to Exts. P11 and P12. Ext. P11 is a request made by the petitioners to the 3rd respondent invoking the provisions contained under the Right to Information Act and the answer given is Ext. P12, from which, according to the petitioners, it is evident that the licence for shop No. 43 (Kuzhiyil shop) was not renewed for the reason that there was no unobjectionable site available within the schedule of that shop and therefore the shop was abolished. 12. Yet another plea raised by the counsel for the petitioners is that the very claim of the 4th respondent about the existence of the Scheduled Caste colony is baseless. To support this contention, W.P.(C) No. 16675 OF 2008 -8- counsel for the petitioners is making reference to Ext. P2, the order passed by the 3rd respondent in pursuance to the directions issued by this Court in Ext. R4(i) judgment. Elaborating on this aspect, the learned counsel for the petitioners further submits that if at all there exists a Scheduled Caste colony now, the same could have come into existence subsequent to the establishment of the shop and if that be so, by virtue of the first proviso to Rule 7(2) the subsequent existence of the colony shall not disentitle the continuance of the shop in question. 13. The learned Govt. Pleader on the other hand submits that Ext. P9 order was the result of the directions issued by this Court in Exts. P3 and P4 judgments. According to him, in Ext. P3 this Court directed, taking note of Ext. P2 order, which stated that the matter of relocation of shop No. 13, now renumbered as 24, will be taken up before the higher authorities of the department, that the same shall be finalised before the end of February, 2008. This direction, according to him, is again reiterated in Ext. P4 judgment. It is contended that it was on the directions of this Court as contained in Exts. P3 and P4 that Ext. P9 order was rendered. Learned Govt. Pleader also would submit that in the schedule as modified by Ext. W.P.(C) No. 16675 OF 2008 -9- P10, there are unobjectionable sites available and therefore, there should not be any difficulty for the petitioners to relocate the shop to such an unobjectionable location. 14. The 4th respondent has filed a counter affidavit. According to him, the Scheduled Caste colony known as Anjilikkadu South colony is in existence within the boundaries indicated in paragraph 3 of his counter affidavit. He is also referring to Ext. R4(a) certificate issued by the Scheduled Caste Development Officer, Pattanakkad on 21.4.2007 as also Ext. R4(b) sketch. It is stated that during the year 2002-03 when an attempt was made to locate the shop in the premises in question, the Association of which he is the Secretary, approached this Court and filed O.P. No. 18582/02 against the then licensee and that original petition was disposed of by Ext. R4(c) judgment. In the judgment, this Court recorded the submission of the learned Govt. Pleader that no application has been received from the then licensee for locating a toddy shop in the premises mentioned therein. The original petition was disposed of directing that if and when an application is made, the objections raised should be considered and that no permission shall be granted contrary to the provisions of the rules. W.P.(C) No. 16675 OF 2008 -10- 15. According to the 4th respondent, the directions in Exts. P3 and P4 judgments are positive in nature and required the authorities to reschedule the limits of T.S. No. 24 of group V of Kuthiyathodu Excise Range and that it is in implementation of the directions therein, that Ext. P9 has been issued. He would also canvass for the position that the proviso to Rule 7(2) of the Kerala Abkari Shops Disposal Rules, 2002, does not in any manner fetter the power of the authorities under Rule 7(3) of the Rules which empower them to reschedule or order closure of the shop if circumstances justify such an order. 16. It is also contended that once a statutory authority in exercise of his power comes to a factual conclusion that there exists circumstances which justify modification of the schedule of a toddy shop and shifting of the same, this Court should not sit in judgment over the wisdom of the departmental authorities unless an extreme cause of perversity is made out by the aggrieved person. It is also contended that the right to trade in liquor is not a fundamental right and that it is always open to the authorities to place restrictions on the exercise of the privilege granted in favour of a licensee. Counsel refers to the judgment of the Apex Court in Khoday W.P.(C) No. 16675 OF 2008 -11- Distilleries Ltd. & Others v. State of Karnataka & Others {(1995) 1 SCC 574} in support of this proposition. Yet another contention raised by the learned counsel for the petitioners is on the impact of Ext. P13 abkari policy declared for the current year. Counsel contends that the provisions of Ext. P13 were in existence in the previous year also and it was despite the policy conditions, this Court issued directions in Exts. P3 and P4. The submission made is that the provisions of the policy or the rights created thereunder do not in any manner deprive the power of the excise authorities which they have exercised in Exts. P9 and P10. 17. I have considered the submissions made by both sides. As rightly contended by both sides the genesis of Exts. P9 is Exts. P3 and P4. By Ext. P3 judgment, taking note of Ext. P2 order that the issue of relocation of the shop will be taken up before the higher authorities of the department, to reschedule the schedule limits, this Court directed that the same shall be finalised before the end of February, 2008 without fail. When the petitioners filed a review petition, apprehending that the directions in Ext. P3 might affect their continued running of the shop during the abkari year 2007- 08, this Court clarified the position by Ext. P4 judgment to the effect W.P.(C) No. 16675 OF 2008 -12- that any such rescheduling will be effective only for the subsequent abkari years. 18. Reading Exts. P3 and P4, I am not in a position to infer and conclude that any positive direction has been issued by this Court requiring the authorities to reschedule the limits of T.S. No. 13, now renumbered as T.S. No. 24 referred to above. All that this Court had directed is that the proposal for taking up the rescheduling of the shop shall be taken to its logical conclusions and nothing more. Therefore, in my view, the authorities were free to consider the matter, in accordance with law and applying their discretion and pass orders in that behalf. Ext. P9, the final order passed in pursuance to Exts. P3 and P4 judgments discloses that the 3rd respondent has proceeded on the basis that this Court had directed the Excise Commissioner to reschedule the schedule limits of T.S. No. 13 now renumbered as T.S. No. 24, so as to locate the shop in an unobjectionable site. This is evident from the 2nd paragraph of Ext. P9. It is also evident from Ext. P9 that on the erroneous basis that this Court had directed that the schedule limits of the toddy shop should be rescheduled and without anything more, the respondents have submitted a proposal which was finally approved W.P.(C) No. 16675 OF 2008 -13- by the Government enlarging the schedule limits by including the limits of toddy shop No. 43 of Group IV of Kuthiyathodu Excise Range. Therefore, in my view, the very basis on which the 3rd respondent has proceeded in Ext. P9 is erroneous. 19. This order also does not disclose that the Commissioner of Excise was satisfied that a case for exercise of his power under Rule 7(3) of the Kerala Abkari Shops Disposal Rules, 2002 was made out, in as much as, this power can be exercised only in the interest of public peace or morality or on grounds on expediency. Therefore the argument of the counsel for the 4th respondent to save Ext.P9, relying on Rule 7(3) of the Rules, cannot be accepted. This is all the more so, for the reason that the Govt. Pleader has not addressed such a contention. In view of this position, the further contention of the 4th respondent's counsel that power under Rule 7(3), is independent of the right conferred under the provisions to Rule 7(2) does not arise for consideration. 20. As already noticed, the counsel for the petitioners submitted that by the time Ext. P9 order was issued on 4.4.2008, Ext.P13, the abkari policy for the year 2008-09 was declared by the Government on 29.2.2008. On this basis what is contended is that W.P.(C) No. 16675 OF 2008 -14- the 3rd respondent could not have issued Ext. P9 ignoring the abkari policy or rather, Ext. P9 could have been only consistent with the Abkari Policy. Learned counsel for the 4th respondent would on the other hand argue that since this Court had issued Exts. P3 and P4 judgments much earlier to Ext. P13 abkari policy, irrespective of whether the policy is there or not, the 3rd respondent was bound to have rescheduled the shop taking into account the position as it prevailed at the time when Exts. P3 and P4 judgments were rendered. 21. I am not in a position to accept the aforesaid contention raised by the learned counsel for the 4th respondent. As already noticed, by Exts. P3 and P4 judgments, all that was directed by this Court, was that the proposal made in the last paragraph of Ext.P2 should be taken to its logical conclusion. That does not in any manner mean that the excise authorities could have ignored the excise policy declared by the Government or that the petitioners could be deprived for the rights conferred by the Rules. Going by the dates, it can be seen that the policy was announced on 29.2.2008, when the time limit prescribed by this Court for complying with the direction in Ext.P3 was also expiring. Therefore, W.P.(C) No. 16675 OF 2008 -15- when the final decision was taken on 4.4.2008 and Ext. P9 was issued, this could have been done only consistent with Ext. P13 policy. 22. True, as contended by the learned counsel for 4th respondent, none has the fundamental right to trade in liquor and it is open to the authorities to place restrictions on the privilege granted. petitioners are not claiming any fundamental right at all and what they submit is that they are entitled to rights available to them under the Abkari Act and the Rules and the policy declared. Even though petitioners do not have any fundamental right to trade in liquor, they are entitled to those rights which are available to them under the Abkari Act, Rules and policy declared. If that be so, T.S. No.24, having been functioning in the building mentioned in Ext.P6, in the year 2007-08, is entitled to be located in the same building, as per the provisions contained in the Abkari Policy for the year 2008-09. 23. Yet another contention raised by the 4th respondent is that when on facts the authorities have found that the Toddy Shop is to be relocated, this Court should not sit in judgment over the wisdom of such decision. This contention is only to be rejected for the W.P.(C) No. 16675 OF 2008 -16- reason that such an immunity could have been claimed if the impugned order was passed, appreciating the factual situation and in exercise of the power under Rule 7(3). Ext.P9 order shows that the said order was passed on the erroneous assumption that this court has issued a positive direction in Exts.P3 and P4 judgments and no other reasons whatsoever are given or taken into account. If that be so, this order cannot be said to have been passed on being satisfied that there existed any factual situation warranting relocation of the Toddy shop. Therefore, Ext.P9 was issued on erroneous basis and on irrelevant considerations and is liable to be interfered with. 24. I am not prepared to accept the contention of the counsel for the petitioners relying on the 1st proviso to