IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 14TH JANUARY 2010 / 24TH POUSHA 1931 WP(C).No. 36409 of 2009(U) --------------------------------------- PETITIONER: ------------------- E.P.SOMAN, S/O.PAZHANI ANDI, IDIYAMPOTTA HOUSE, NENMARA, CHITTOOR TALUK, PALAKKAD DISTRICT. BY ADVS. MR.B.GOPAKUMAR, SMT.CHINCY GOPAKUMAR. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE COMMISSIONER OF EXCISE, KERALA, THIRUVANANTHAPURAM. 2. DEPUTY COMMISSIONER OF EXCISE, THRISSUR. 3. THE ASSISTANT EXCISE COMMISSIONER, THRISSUR. 4. THE CIRCLE INSPECTOR OF EXCISE, IRINJALAKKUDA. 5. PARAMESWARAN, S/O.RAMAN, VETTIYATTIL, THEKKUMURI, VARANTHARAPPILLY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 6. LALU.C.K, S/O.LESAVAN, CHERAI HOUSE, NELLAYI, THRISSUR-680 305. R1 TO R4 BY GOVT. PLEADER MR. V. MANU, R6 BY ADV. MR.C.A.CHACKO. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/01/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.36409/2009-U: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE LICENCE NO.9/2008-09 ISSUED TO THE R.5. EXT.P.1.A: COPY OF THE ORDER NO.R5.1575/08/A. DTD. 11/11/2008 ISSUED BY THE ASST. EXCISE COMMISSIONER, THRISSUR. EXT.P.2: COPY OF THE JUDGMENT IN W.P.(C).NO.27630 OF 2008(L) DTD. 24/10/2008 IN THE HONOURABLE COURT. EXT.P.2.A: COPY OF THE JUDGMENT IN R.P.NO.12/2009(L) DT. 19/01/2009. EXT.P.2.B: COPY OF THE JUDGMENT IN W.P.(C).NO.27630/2008(L) DTD. 19/03/2009 IN THE HONOURABLE COURT. EXT.P.3: EXTRACT OF THE LICENCE ISSUED IN FAVOUR OF THE PETITIONER. EXT.P.3.A: COPY OF THE JUDGMENT IN W.A. NO.1118/2009(L) DT. 30/06/2009. EXT.P.4: COPY OF THE REPRESENTATION SEND BY 6TH RESPONDENT TO R.3. DT. 28/07/2009. EXT.P.4.A: COPY OF THE ORDER G.O.(MS).NO.70/2000/T DTD. 19/04/2000. EXT.P.4.B: COPY OF THE LETTER NO.R5-1942/09 DTD. 03/08/2009 SEND BY THE OFFICE OF THE DEPUTY EXCISE COMMISSIONER, TRISSUR TO THE R.6. EXT.P.5: COPY OF THE JUDGMENT IN W.P.(C).NO.25785/2009(P). EXT.P.6: COPY OF THE ORDER NO.XA2-12533/2009 DT. 30/11/2009. EXT.P.7: COPY OF THE REPRESENTATION DT. 03/11/2009. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.36409 OF 2009 (U) -------------------------------------------------- Dated this the 14th day of January, 2010 J U D G M E N T Challenge in this writ petition is against Ext.P6, an order passed by the Commissioner for Excise. 2. Briefly stated the facts are that, on the strength of Ext.P1, hence, T.S.No.89/08 in Group No.7 of Irinjalakkuda Excise Range was run by the 5th respondent till 30.6.2009. Initially, the shop was licensed in another premises but had to be shifted to building No.IX/57-A, consequent on the acquisition and widening of National Highway. With effect from 1.7.2009, petitioner became the licensee of the shop and Ext.P3 is the licence issued to him. 3. During the period when the 5th respondent was the licensee, it would appear that the 6th respondent raised certain objections regarding the location of the shop in building No.IX/57- A. That resulted in Ext.P2(b) judgment dated 19.3.2009, by which this Court allowed WP(c).No.27630/08 filed by the 5th respondent and allowed him to continue his shop in building No.IX/57-A, to which the shop was already ordered to be shifted. In that writ WPC.No. 36409/09 :2 : petition, 6th respondent was the additional 4th respondent. Aggrieved by Ext.P2(b) judgment, the 6th respondent filed W.A. No.1118/09 and that writ appeal came up for hearing on 30.6.2009 and was disposed of by Ext.P3(a) judgment recording that by then the 5th respondent herein had ceased to be the licensee for the year 2009-2010 and therefore in view of the subsequent developments it was unnecessary to consider the validity of the judgment under appeal. It was clarified that if the new contractor is proposing to start a toddy shop in the premises objected by the 6th respondent, he will be free to raise his objections and that in case the 6th respondent raise any such objection, he will not be bound by the findings in Ext.P2(b) judgment and that his contentions are left open. 4. It is stated that, in pursuance to Ext.P3(a) judgment, the 6th respondent submitted Ext.P4 representation to the Assistant Excise Commissioner objecting to the location of the shop in building No.IX/57-A. That was rejected by Ext.P4(b) stating that it was in view of Ext.P2(b) judgment that licence was granted in the same premises. Ext.P4(b) communication was challenged by the 6th respondent in WP(c).No.25785/09 and that writ petition was WPC.No. 36409/09 :3 : disposed of by Ext.P5 judgment, leaving it open to him to move the Excise Commissioner and with a further direction to the Excise Commissioner that, if any such application is filed, the same shall be disposed of. 5. Petitioner states that thereafter he was served notice dated 26.10.2009 from the office of the Excise Commissioner summoning him for a personal hearing scheduled on 3.11.2009. The notice was without enclosing a copy of the complaint filed by the 6th respondent. He states that he appeared before the Commissioner on 3.11.2009 and submitted Ext.P7 representation informing that he was not furnished a copy of the complaint filed by the 6th respondent and requesting that a copy there of be furnished in order to file an effective reply to the complaint. For this purpose he also sought postponement of 15 days. According to him he did not hear anything further but was served Ext.P6 order passed by the Commissioner. Ext.P6 order, which in so far as it is relevant, reads as under. “The Licensee of toddy shop, Sri. P. Soman appeared for hearing and admitted that the functioning of toddy shop in th existing premise is causing much nuisance to the petitioner and others and also stated that he is willing to shift the toddy shop from the WPC.No. 36409/09 :4 : existing premise. He has also admitted that the toddy shop is actually run by one Kiran Rajan for and on behalf of him. I have carefully examined the facts of the case and going by the submissions made by the petitioner as well as the Licensee of the shop it is revealed that the toddy shop is not actually run by the Licensee but by one Sri. Kiran Rajan as Binami of the Licensee. Likewise, the Licensee has also admitted before me that the functioning of the toddy shop in the present site is causing much nuisance to the petitioner and has expressed his desire to shift it to unobjectionable site but Sri. Kiran Rajan, who is his Binami is not agreeing to this. Moreover, the toddy shop in question which had functioned in another objectionable site for many years up to 2007-08 was shifted to the present objectionable site, not availing the benefit given in the 2nd proviso of Rule 7(2) of Disposal Rules 2002. In the circumstances, the functioning of T.S. No.89/09-10 in Group No.7/08-09 of Irinjalakkuda Range in the present objectionable site is hereby stopped under rule 7(3) of Disposal Rules, 2002 and the Licensee is directed to find out another unobjectionable site as per rules to locate the toddy shop. The Deputy Commissioner of Excise, Trissur will conduct enquiry to ascertain whether the toddy shop is run by a Binami as stated by the Licensee. This is inevitable in the context that the person who turned up for hearing claiming as licensee was not carrying any document to prove his identity. The judgment in WP(c).No.25785/09 is complied with. “ 6. It is on receipt of Ext.P6 that this writ petition is filed challenging the said order. WPC.No. 36409/09 :5 : 7. Petitioner contends that the submission stated to have been made by him and recorded in Ext.P6, is factually incorrect. He states that he did not make any such submission. It is also his case that having regard to the findings Ext.P3(b) judgment and as there was no change of circumstances, there was no justification to order to shift the shop. According to him the order is also violative of the principles of natural justice, in as much as the same was passed without furnishing a copy of the complaint, on the basis of which the proceedings were initiated. He also submits that the shop is run by himself and not by anybody else as stated in Ext.P6. I heard the learned Government Pleader on behalf of respondents 1 to 4 and the counsel appearing for the 6th respondent. The 5th respondent has not entered appearance, despite issuance of notice by Special Messenger. 8. Learned Government Pleader made available the files maintained by the Excise Commissioner. He made particular reference to the minutes of the hearing held on 3.11.2009 with the signature of the Excise Commissioner. It is stated that in the minutes it is recorded that the petitioner had made statements exactly in terms of what is mentioned in Ext.P6 order, which is WPC.No. 36409/09 :6 : extracted in the earlier portion of the judgment. It is stated that Ext.P6 order has been passed based on the confession made by the petitioner and there is absolutely no substance in the objection now raised. The 6th respondent also supports the contention made by the learned Government Pleader. 9. I have considered the submissions made. 10. A reading of Ext.P6 order shows that reliance is placed by the Excise Commissioner on the statement made by the petitioner at the time when the petitioner entered appearance on 3.11.2009. The statement made by the petitioner is a self destructive statement and the petitioner submits that he did not make any such statement. Though the very fact that such a statement has been made by the petitioner, appears to be unnatural and is self discriminative, still facts remains that the very same statement is recorded in the minutes of hearing maintained by the Excise Commissioner in his note files. Official acts are presumed to be validly done and if such presumption is to be discarded, it is possible only if the person who impugns it, produces materials in support of his plea. In this case, apart from stating that he did not make the submission which is recorded in WPC.No. 36409/09 :7 : the files and also in Ext.P6, no material has been produced by the petitioner. Thus he has not discharged his burden to substantiate his contention in this behalf. Therefore, on the materials produced, I cannot accept the statement of the petitioner that he did not make such a statement or that what is recorded in the minutes or Ext.P6 order do not reflect what transpired during the course of hearing. If that be so, the Excise Commissioner cannot be faulted for having issued Ext.P6. Further, since Ext.P6 has been passed acting upon the submissions made by none other than the petitioner himself, I also do not find any substance in his complaint that, since copy of the complaint made by the 6th respondent was not served on him, he could not effectively defend the proceedings and thus natural justice has been violated. For these reasons I do not find any merit in the writ petition. Writ petition fails and is dismissed. (ANTONY DOMINIC) JUDGE vi/ WPC.No. 36409/09 :8 :