IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 14TH MARCH 2011 / 23RD PHALGUNA 1932 WP(C).No. 7562 of 2011(U) ------------------------- PETITIONERS: -------------------- 1. SRI.V.BABU, S/O.VASU, AGED 54 YEARS, 654 LAKSHAMVEEDU COLONY, THEKKEKKARA, KANAVELLY P.O., KOLLAM. 2. SRI.SRINIVASAN, AGED 52 YEARS, S/O.KARUTHAKUNJU, S.J.NIVAS, CHEMMAKKAD, PANAYAM, KOLLAM. BY ADV. SRI.M.K.CHANDRA MOHANDAS RESPONDENT(S): ---------------------- 1. THE STATE OF KERALA REP.BY THE SECRETARY, DEPARTMENT OF EXCISE, THIRUVANANTHAPURAM 695 101. 2. THE COMMISSIONER OF EXCISE, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM 695 101. 3. THE DEPUTY COMMISSIONER OF EXCISE, KOLLAM 691 001. 4. THE CIRCLE INSPECTOR OF EXCISE, KOLLAM 691 001. R1 TO R4 BY GOVERNMENTPLEADER SMT.K.R.DEEPA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/03/2011, ALONG WITH WP(C) NO. 7584 OF 2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jkk C.T. RAVIKUMAR, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P.(C)Nos. 7562 & 7584 OF 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of March, 2011 J U D G M E N T Common issues involved in these writ petitions and therefore, they were heard jointly and are being disposed of by this common judgment. 2. The petitioners in the former writ petition are the licensees of the toddy shop No 33/2010-11 at Cherumood Group 7 in Kollam range and the petitioner in the latter writ petition is the licensee of the toddy shop No. 30/2010-11 at Vellimon Group VI in Kollam range. Both of them are running toddy shops on the strength of Ext.P1(Ext.P1 in both these writ petitions)licences. Shortly, after the Malappuram Liquor tragedy, the toddy shops belonging to the petitioners were ordered to be closed down. Subsequently, Ext.P2 circular viz., circular X A1-28700.2009 dated 18.9.2010 was issued and that carried certain conditions. Since they found very difficult to comply with certain conditions, they sought permission of Deputy Commissioner of Excise, Kollam to permit them to re-open the shops dispensing with compliance with Ext.P2 circulars. Subsequently, they were WPC Nos.7562 & 7584/2011 2 issued with show cause notices as to why their licences should not be cancelled under section 26(b) of the Abkari Act read with 7(15) of the Kerala Abkari Shops Disposal Rules, 2002. Shortly, after the receipt of the said notices, the Commissioner of Excise convened a meeting of the Trade Union leaders of the toddy workers, the licensees and the Excise officials on 6.1.2011 at Kollam. The definite contention of the petitioners is that the second respondent directed all the licensees to start operation of the toddy shops at the earliest and decisions taken at the said meeting were properly recorded in the minutes book of the Deputy Commissioner of Excise, Kollam. The petitioners in these writ petitions contend that after attending the said meeting held on 6.1.2011 they had reopened their respective toddy shops immediately in tune with the decisions taken at the meeting. In the former writ petition the contention is that it was re-opened on 7.1.2011 and in the latter writ petition it was so re-opened on 17.1.2011. Thereafter, the petitioners have applied for permit for transport of toddy from Palakkad and the Deputy Excise Commissioner, Palakkad granted the requisite permit. To substantiate the said WPC Nos.7562 & 7584/2011 3 contention the petitioners have produced documents as Exts.P3 and P4, in both these writ petitions. However, to their deepest dejection they received Ext.P5 dated 25.2.2011. As per the said orders the Commissioner of Excise recommended for cancellation of their respective licenses and also ordered for forfeiture of the rent deposited by them under section 26(b) of the Abkari Act read with Rule 5(19) and 7(31)of the Kerala Abkari Shops Disposal Rules, 2002. In compliance with the said orders of the second respondent the Deputy Commissioner of Excise Kollam cancelled their respective licenses and the rent deposited by them were forfeited. The impugned orders in these writ petitions carry a further direction to the Deputy Commissioner of Excise, Kollam to conduct re-sale of the toddy shops as per the provisions under the Kerala Abkari Shops Disposal Rules, 2002 and in the meanwhile, to place the concerned shops under the departmental management to protect the livelihood of the workers of the concerned toddy shops. It is challenging Ext.P5 orders that these writ petitions have been filed. 3. I have heard the learned counsel for the petitioners WPC Nos.7562 & 7584/2011 4 and the learned Government Pleader. Essentially, the contention of the petitioners is that the impugned orders were passed with a closed mind and without looking into or appreciating the relevant aspects. It is further contended that though adverse civil consequences flow from the impugned orders and that orders were passed in violation of audi alteram partem. As already noticed hereinbefore, the very specific contention of the petitioners is that after issuance of the show cause notices, a meeting was convened and the decision taken in the said meeting were duly recorded in the minutes book kept by the Deputy Commissioner of Excise, Kollam. That apart, it is their specific case that pursuant to the meeting dated 6.1.2011 the petitioners in the former writ petition re-opened their concerned shop on 7.1.2011 and the petitioner in the latter writ petition re-opened the concerned toddy shop on 17.1.2011 itself. Exts.P3 and P4 in both these writ petitions would substantiate their contentions. However, these relevant documents were not at all looked into or properly appreciated by the second respondent while passing the impugned orders. A perusal of the impugned order would WPC Nos.7562 & 7584/2011 5 reveal that those crucial aspects were not taken into consideration before passing the impugned orders. I am also of the considered view that if the contention of the petitioners that they had reopened their respective toddy shops on 7.1.2011 and 17.1.2011 are found as true and correct and Ext.P3 and Ext.P4 produced in their respective writ petitions are found genuine the ground that the sales in the shops had been discontinued for more than 30 days consecutively would not be available at all. Therefore, I am of the view that the said crucial aspects are to be considered by the second respondent as those aspects were never adverted to prior to the passing of Ext.P5. Evidently, the licenses were cancelled and the rent deposited by them were forfeited on the ground that the sales in their respective shops had been discontinued for more than 30 days consecutively. It is in the said context that aforesaid aspects assume relevance. To enable the second respondent to consider the issues afresh and to pass fresh orders after affording an opportunity of being heard to the petitioners Ext.P5 in both these writ petitions are set aside. Consequently, these writ petitions are disposed of with a WPC Nos.7562 & 7584/2011 6 direction to the second respondent to consider the issues afresh after affording an opportunity of being heard to the petitioners and after calling all the relevant records referred above from the respective offices. Exts.P3 and P4 produced in these writ petitions also assume relevance in that context. After such consideration, the second respondent shall pass orders expeditiously, at any rate, within a period of two weeks from today. The learned counsel for the petitioners submitted that though the impugned orders carry a direction to conduct resale of the toddy shops in accordance with provisions under the Kerala Abkari Shops Disposal Rules, 2002 it was not conducted and the toddy shops in question were not placed under the departmental managing committee. If the said averments of the petitioners are true and correct the respondents shall permit the petitioners to reopen the concerned toddy shops to protect the livelihood of the workers of the toddy shops as it is the very concern shown by the second respondent himself. It will also be open to the petitioners to approach the competent authority to submit an application for renewal of the licence issued to them. In case, such an WPC Nos.7562 & 7584/2011 7 application is submitted by the petitioners, it shall be considered in accordance with law. Sd/- C.T. RAVIKUMAR, JUDGE jma //true copy// P.A to Judge