IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 14TH FEBRUARY 2011 / 25TH MAGHA 1932 WP(C).No. 4040 of 2011(D) -------------------------------------- PETITIONER(S): ------------------------- BIJU JOSEPH, AGED 40 YEARS, S/O.P.G.BABU, PADIPPURAVEETTIL KIZHEKKETHIL, KADAMPANADU P.O., ADOOR, PATHANAMTHITTA DISTRICT. BY SRI.C.C.THOMAS, SENIOR ADVOCATE, BY ADV. SRI.M.G.KARTHIKEYAN. RESPONDENT(S): ------------------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY, TAXES (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2. THE COMMISSIONER OF EXCISE, EXCISE COMMISSIONERATE, THIRUVANANTHAPURAM - 695 001. 3. THE DEPUTY COMMISSIONER OF EXCISE, KOLLAM - 691 001. 4. THE CIRCLE INSPECTOR OF EXCISE, KUNNATHOOR, KOLLAM DISTRICT - 691 001. 5. THE EXCISE RANGE OFFICE, EXCISE RANGE OFFICE, SASTHAMCOTTA, KOLLAM DISTRICT - 691 001. 6. SRI.S.SUBBIAH I.A.S.,EXCISE COMMISSIONER (TILL 2.2.2011), COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM - 695 001. R1 TO R5 BY GOVERNMENT PLEADER SMT. K.R. DEEPA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/02/2011 ALONG WITH WPC NO.4042 OF 2011 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss C.T. RAVIKUMAR, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P.(C)No. 4040, 4042, 4044 & 4046 OF 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of February, 2011 J U D G M E N T The petitioners were running licenced toddy shops in different Groups under Sasthamkotta excise range in Kollam Division. On account of Malappuram hooch tragedy the petitioners were orally directed to close down their respective toddy shops. The contention of the petitioners is that based on the instruction by the department they have re- opened on 28.1.2011 their respective toddy shops and that fact was duly entered in the General Diary by the 4th respondent. That apart, according to the petitioner the said fact was duly intimated by the 4th respondent to the higher officer. These crucial aspects were not taken into consideration while passing Ext.P1 order(Ext.P1 in all these writ petitions), it is submitted. As per Ext.P1 orders passed under section 26(b) of the Abkari Act read with Rule 5(19) and 7(31) of the Kerala Abkari Shops Disposal Rules,2002, the licences issued to all the petitioners were cancelled and the rent deposited by them were forfeited. Further the Deputy WPC.No.4040 and connection. : 2 : Commissioner of Excise, Kollam was directed to conduct resale of toddy shops belonging to the petitioners as per the Rules and to entrust the toddy shops with societies. 2. I have heard the learned Senior counsel appearing for the petitioners as also the learned Government Pleader. Evidently, the inevitable impact of the impugned order in all these writ petitions is that the petitioners would lose their preferential guaranteed under Rule 5(a) of the Rules. Obviously, the rent deposited by each of them was forfeited. Other adverse civil consequences also flow from the impugned orders. Even then, the impugned orders were passed without notice to them and therefore, it is contended that they are liable to be set aside on the ground of violation of the principles of natural justice. To buttress the said contentions the petitioner rely on the decision of the Hon'ble Apex Court in Kranti Associates Private Limited and Another V. Masood Ahmed Khan and Others (2010(9) SCC 496). Evidently, failure to comply with the requirements under Rule 7(15) of the Kerala Abkari Shops Disposal Rules, 2002 is the reason assigned for cancellation of their permits. In terms of WPC.No.4040 and connection. : 3 : the said Rules, if shops are not opened within one month from the date of receipt of the confirmation of sale of shop of privilege and shops once opened but in which sales have been discontinued for more than 30 days consecutively, shall be liable to be resold or disposed otherwise at the risk and loss of the licensees. As already noticed hereinbefore the consistent case of the petitioner is that they had reopened the respective shops on 28.1.2011 and the said fact was duly entered in the General Diary of the 4th respondent and further that the 4th respondent had duly intimated the said facts to the higher officers. If the said fact was duly taken into consideration failure to comply with the requirements under Rule 7(15) of the Rules would not have been attributed against the petitioners and their licences would not have been cancelled for non-compliance with the requirements under Rule 7(15) of the Rules. In short, according to them, violation of the principles of natural justice caused considerable prejudice. The learned senior counsel appearing for the petitioner submitted that it is not an invariable requirement to cancel the licence under all circumstances. Admittedly, after the WPC.No.4040 and connection. : 4 : passing of the impugned orders no resale of the toddy shops have been conducted so far. In the said circumstances, considering the adverse civil consequences and the impact of the impugned orders, I am inclined to accept the contention that violation of the principles of natural justice caused great prejudice to the petitioners. In the said circumstances, Ext.P1 in all these writ petitions are liable to be set aside to enable the second respondent to consider the claims and contentions of the petitioners and to pass fresh orders in the matter, with opportunity to the petitioners. Accordingly, Ext.P1 in all these writ petitions are set aside. Consequently, the second respondent will be at liberty to take appropriate action on appreciation of the factual aspects involved in these cases, in accordance with law. At any rate, any further action shall be taken only after affording an opportunity of being heard to the petitioners. Considering the welfare of the workers of the toddy shops in questionthere will be a further direction as hereunder:- In case the shops are being run by any other agency pursuant to Ext.P1 orders status quo shall be continued till a WPC.No.4040 and connection. : 5 : final decision is taken based on the above direction. A decision shall be taken in this matter at any rate, within three weeks from today. However, if shops are remaining closed on account of the impugned orders the second respondent shall permit the petitioners to reopen the same and to conduct the business in accordance with the licence issued to the petitioners but, its continuance will be subject to orders to be passed by the second respondent. Disposed of accordingly. Sd/- (C.T. RAVIKUMAR, JUDGE) jma //true copy// P.A to Judge