IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 13TH JANUARY 2011 / 23RD POUSHA 1932 WP(C).No. 78 of 2011(H) ------------------------------------ PETITIONER(S): ------------------------ K.V.SAJEEV, AGED 40 YEARS, S/O.VELAYUDHAN, KUTTIPARAMBIL HOUSE, KODASSERY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY SRI.C.C.THOMAS, SENIOR ADVOCATE, BY ADV. SRI. M.G. KARTHIKEYAN, SRI. NIREESH MATHEW. RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REP.BY SECRETARY, TAXES (A) DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF EXCISE, EXCISE COMMISSIONERATE, THIRUVANANTHAPURAM. 3. THE DEPUTY COMMISSIONER OF EXCISE, THRISSUR. 4. THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, CHERPU, THRISSUR DISTRICT. R1 TO R4 BY GOVERNMENT PLEADER SMT. K.R. DEEPA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/01/2011 ALONG WITH WPC.NO.109 OF 2011 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss C.T.RAVIKUMAR, J. ---------------------------- W.P.(C)Nos.78, 109, 110, 122, 136, 463, 477 of 2011 ---------------------------- Dated 13th January, 2011 JUDGMENT The petitioners are running toddy shops in different Groups under Cherpu Excise Range/Thrissur Excise Range of Thrissur Division. They have been running the toddy shops under licence for the past several years. Pursuant to the Malappuram hooch tragedy the petitioners were orally directed to close down their respective toddy shops. According to the petitioners, thereafter they have re-opened their respective toddy shops and later, owing to compelling circumstances arising out of the demands made from the part of the workers in their respective toddy shops, they were compelled to close the respective shops on 25.11.2010. It is their contention that subsequently they have reopened the same on 20.12.2010. The petitioners are aggrieved by Order No.XA2-31598/2010 dated 28.12.2010 (Ext.P1 in all these writ petitions). The impugned orders have been passed under Section 26(b) of the Abkari Act (for short `the Act') read with Rule 7(15) of the Kerala Abkari Shops Disposal Rules, 2002 (for short `the Rules'). As per the impugned orders, after cancelling the licence with respect to the toddy shops run by the petitioners the Deputy Commissioner of Excise, WP(C).No.78/2011 & connected cases 2 Thrissur was directed to conduct resale of the toddy shops belonging to the petitioners and further directed to take steps to place the shops under Department Management Rules till the toddy shops are sold in order to protect the livelihood of the employees. A statement has been filed on behalf of the third respondent in these writ petitions. 2. I have heard the learned Senior Counsel appearing for the petitioners and also the learned Government Pleader. 3. In view of the indisputable position obtained in this case, I do not think it necessary to delve into the facts and contentions any further at this stage. There cannot be any dispute with respect to the fact that the inevitable impact of the impugned orders is that the petitioners would lose their preferential right guaranteed under Rule 5(a) of the Rules. There are other civil consequences as well flowing from the impugned orders. Despite such a situation, admittedly, the impugned orders were passed without putting the petitioners on notice. There is nothing in the statement filed on behalf of the third respondent to suggest that the impugned orders were passed with notice to the petitioners. 4. As noticed hereinbefore, the consistent case of the petitioners is that they have closed down their respective toddy shops on WP(C).No.78/2011 & connected cases 3 25.11.2010 and thereafter reopened the same on 20.12.2010. The verity of their contentions have to be looked into by the concerned competent authority as the very application of the above mentioned provisions would depend upon the outcome of such a fact finding process. Further, it is evident from the impugned orders that after cancelling the licence issued to the petitioners, based on which they were running the toddy shops, it was ordered to conduct resale of the concerned toddy shops. Since the impugned orders are passed in total disregard to the principle of Audi altrem partem and indisputable position that adverse civil consequences flow from the impugned orders, I am inclined to interfere with the impugned orders viz., Ext.P1 in all these writ petitions. Accordingly, Ext.P1 in all these writ petitions are set aside. There will be a consequential direction to the second respondent as hereunder:- It will be open to the second respondent to take appropriate action, in case the said authority thinks it fit to do so, on appreciation of the factual aspects involved in this case, in accordance with law. The learned Government Pleader submitted that pursuant to Ext.P1 orders the toddy shops in question are being run under the Department Management Rules in order to protect the livelihood of the employees. WP(C).No.78/2011 & connected cases 4 However, the learned Senior Counsel appearing for the petitioners refuted the same and submitted that the shops are being run by them and not under the Department Management Rules and that, in fact, the toddy shops in question are now remaining closed pursuant to Ext.P1 orders. Therefore, in case the shops in question in all these writ petitions are being run under the Department Management Rules, the said position shall continue to be so for a period of 10 days. At the same time, if the 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 conditions in the licence issued to the petitioners. As observed earlier, it will be open to the second respondent to proceed with the matter in accordance with law, in case he thinks it fit to take appropriate action in accordance with law. However, it is made clear that any such action shall be done strictly adhering to the principles of natural justice. All the writ petitions are disposed of accordingly. Sd/- C.T.RAVIKUMAR Judge TKS