IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 21ST MARCH 2011 / 30TH PHALGUNA 1932 WP(C).No. 7075 of 2011(H) ------------------------- PETITIONER(S): --------------- P.GOPALAN,S/O.PAZHANAN,RESIDING AT MELEVEEDU,MUKRONI,KANJIKODE.P.O,PALAKKAD-678621. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP RESPONDENT(S): --------------- 1. THE STATE OF KERALA,REPRESENTED BY THE DISTRICT COLLECTOR,PALAKKAD-1. 2. THE EXCISE COMMISSIONER, THIRUVANANTHAPURAM,PIN-695001. GOVERNMENT PLEADER SMT.K.R.DEEPA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO.7075 OF 2011 -------------------------------------------- Dated this the 21th day of March, 2011 JUDGMENT The petitioner was conducting Abkari shop Nos.51, 52, 53, 120, 121 and 145 in Group 3 and 32 of Palakkad Excise Range. He has been conducting the same for years together till the year 1994-1995. He could not successfully bid the shops in the year 1994-1995. Subsequently, he requested the Government to allow him to clear the outstanding amount towards the Kerala Toddy Workers Welfare Fund (for short 'K.T.W.W.F') in 20 equal instalments. Heeding to the request of the petitioner in that regard, the Government have granted permission to him to clear the entire dues in 20 equal instalments and also to pay the same at the rate of 9% interest. The contention of the petitioner is that he has discharged the entire liability towards the K.T.W.W.F in terms of the said direction. In fact, prior to the discharge of the said liability by the petitioner, there occurred a hike in the interest rate from 9% to 18%. According to the petitioner, he was never put on notice about the change in the interest rate and he was flabbergasted when revenue recovery proceedings were initiated against him. The said action on the part of the respondents constrained the petitioner to file C.R.P.Nos.52 and 140 of 2009 before this W.P.(C) NO.7075/2011 2 Court. The said revision petitions are admitted into the file and are still pending before this Court. Exts.P1 and P2 are interim orders respectively passed in the said revision petitions. They would show that interim stay against all further coercive proceedings was granted subject to the condition specifically made thereunder ie., payment of Rs.7,552/- in C.R.P.No.52/2009 and Rs.5,048/- in C.R.P.No.140/2009. 2. Rule 5 of the Kerala Abkari Shops Disposal Rules, 2002 (for short 'the Rules') provides for grant of privilege, preference to licencees for those who conducted toddy shops during the preceding three years consecutively from 2006-2007, 2007-2008 and 2008-2009. The said provision was introduced with effect from 1.4.2007 as is obvious from Ext.P3. The contention of the petitioner is that on account of the pending dispute regarding the recovery of the balance portion of the interest due towards the K.T.W.W.F, he was illegally prevented from participating in the auction. He was not granted No Objection Certificate by the K.T.W.W.F.Board or from the office of the Excise Inspector or by the Commercial Tax Officer. He obtained the No Objection Certificates from the aforesaid authorities only after obtaining Ext.P1 order dated 19.2.2009 and Ext.P2 order dated 27.2.2009. Accordingly, the Welfare Fund W.P.(C) NO.7075/2011 3 Inspector of K.T.W.W.F issued Ext.P4 No Objection Certificate to the petitioner and Exts.P5 and P6 are the Non Objection Certificates respectively issued by the Excise Inspector and Commercial Tax Officer. On obtaining Exts.P4 to P6, the petitioner sought permission to take part in the auction for the year 2010-2011. But, he was prevented from participating in the auction by availing the benefit under Rule 5 of the Rules. In other words, he was not granted the privilege or preference as contemplated thereunder. This Writ Petition has been filed apprehending that he would not be permitted to take part in the bid auction for the year 2011-2012 by availing the privilege or preference in terms of Rule 5 of the Rules. 3. The very contention of the petitioner is that Rule 5 of the Rules was introduced only w.e.f 1.4.2007. In other words, according to the petitioner, Rule 5 of the Rules was not in vogue when the revenue recovery proceedings were initiated against him. That apart, it is further contented that the very action on the part of the respondents in granting Exts.P4 to P6 to him for participating in the bid auction would reveal that he was illegally deprived from participating in the bid auction on the earlier occasions. Had he been permitted to participate in the auction after W.P.(C) NO.7075/2011 4 the introduction of Rule 5 of the Rules w.e.f 1.4.2007, it would have fetched him the right of privilege and preference in terms of Rule 5 of the Rules, it is further contended. This Writ Petition has been filed mainly with the prayer to issue a writ of mandamus commanding respondents to permit the petitioner to participate in the auction process and bid for Abkari shops in the Palakkad Excise Range for the year 2011-2012 and for a declaration that he is entitled to take part in the bid auction of toddy shops in Palakkad Excise Range for the year 2011-2012 in the light of Exts.P4 to P6 certificates. 4. For the purpose of considering the issue involved in this case, it is relevant to refer to Rule 5 (1)(a) of the Rules. It reads thus:- “While giving privilege, preference shall be given to those licensees who has conducted toddy shops during the preceding three years consecutively from [2005-06, 2006-07 and 2007-08] provided no Abkari case is registered against him other than under section 56 of the Abkari Act. The licensees who has conducted the shops during 2002-03, 2003-04 or 2004-05 and whose licences cancelled due to registration of Abkari cases and subsequently exonerated by the Courts and those W.P.(C) NO.7075/2011 5 Licensees who could not complete the preceding three years on account of the closure of shops shall also be given preference.” Rule 5(1) of the Rules would reveal that while giving the privilege under Rule 5, preference shall be given to those licencees who had conducted toddy shops during the preceding three years consecutively from 2006- 2007, 2007-2008, 2008-2009 provided no abkari case is registered against him under Section 56 of the Abkari Act. Subsequently, an amendment was brought into Rule 5(1) of the Rules inserting the following as proviso to Rule 5(1). “Provided that preference shall also be given to the existing licensees who have conducted toddy shops for less than 3 years, in the absence of those licensees who have conducted Toddy shops during the preceding three years consecutively.” The learned Government Pleader also brought to my attention G.O.(MS) No.26/11 TD dated 14.2.2011 which is the declared Abkari Policy of the Government for the year 2011-2012. My attention was also drawn to the amendment made to the Rules as per G.O(P) No.62/2010/TD dated 12.3.2010 and published as S.R.O.No.256/2010. As per the same, in the first sentence in sub-rule (1)(a) of Rule 5, the words, figures, symbol W.P.(C) NO.7075/2011 6 “preceding three years consecutively from 2006-07, 2007-08, 2008-09” are substituted by the word, figures and symbol “year 2009-2010”. The second sentence in the said rules was substituted by the sentence “the licencees who have conducted the shops during the year 2009-2010 and whose licences cancelled due to registration of Abkari cases and subsequently exonerated by the Court and those licencees who could not complete the year 2009-2010 on account of the closure of shops shall also be given preference.” 5. It is thus obvious that on account of the subsequent Abkari policy evolved and declared by the Government and going by the provisions under the Rules, there was nothing to impede the participation of the petitioner in the auction. The learned Government Pleader, on instructions, submitted that though the petitioner had applied for participating in the auction by availing the privilege and preference, he was permitted to participate in the auction without the benefits of privilege and preference. Evidently, the Abkari policy for the year 2011-2012 was declared by the Government as per G.O.(MS).No.26/11/ TD dated 14.2.2011. There is no case for the petitioner that the amendment that was brought into Rule 5(1) of the Rules by adding proviso vide G.O.(P) W.P.(C) NO.7075/2011 7 103/2009/TD dated 16.6.2009 is not now in force. As long as the said proviso is in force, besides those licencees who have conducted toddy shops during the preceding three years consecutively, only the existing licncees who have conducted toddy shops for not less than three years alone can claim preference that too, only in the absence of the former category. As already noticed hereinbefore, the specific contention of the petitioner is that he had been conducting the aforementioned toddy shops till the year 1994-95. The petitioner has no case that he had conducted any of the aforesaid toddy shops at any point of time after the year 1994-'95. His case is that he was illegally deprived of the opportunity to participate in the auction. According to the petitioner, in the circumstances explained above, privilege and preference contemplated under Rule 5(1) has to be extended to him. However, the learned Government Pleader submitted that the proviso to Rule 5(1) would not bring the petitioner within its purview. In other words, the contention is that as long as the petitioner had conducted the toddy shops only till the year 1994-'95, he cannot be considered as an existing licencee who conducted the toddy shops for less than three years or consecutively during the preceding three years. Therefore, the petitioner cannot claim the benefit of privilege or preference W.P.(C) NO.7075/2011 8 that was introduced as per Rule 5(1) of the Rules w.e.f 1.4.2007. The petitioner did not have a case that subsequent to 1994-95, at any point of time, he had conducted any shops so as to earn eligibility to claim the preference or privilege contemplated under Rule 5(1) of the Rules. When that be the admitted position, I am of the view that merely because the petitioner had obtained Exts.P1 and P2 stay of all further coercive proceedings that cannot be a ground to stake claim the privilege or preference contemplated under Rule 5(1) of the Rules as long as he had not conducted any toddy shop during any of the period specified under the proviso to Rule 5(1). In short, in view of the admitted position that the petitioner had not conducted any toddy shops till 1994-95, he is not entitled to the benefit under Rule 5(1) ie., privilege and preference for the purpose of bidding. True that it will not take away the right of the petitioner to participate and admittedly, the petitioner was permitted to participate in the auction. There is no merit in the Writ Petition. Accordingly, it is dismissed. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.7075/2011 9 C.T. RAVIKUMAR, J. W.P.(C) NO.7075/2011 10 JUDGMENT September, 2010