IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 17TH MARCH 2009 / 26TH PHALGUNA 1930 WA.No. 2003 of 2006(A) ---------------------- AGAINST THE JUDGEMENT IN OP.35364/2002 Dated 22/12/2005 .................... APPELLANT: PETITIONER ------------------------ V.V.SWAMYNADHAN, AGED 49 YEARS, SON OF V.K.VASU, VALOORTHODI VEEDU, MANAKURISSI, MANKARA, PALAKKAD DISTRICT. BY ADV. SRI.C.C.THOMAS, SENIOR ADVOCATE SRI.M.G.KARTHIKEYAN RESPONDENT(S)/RESPONDENTS: --------------- 1. THE CIRCLE INSPECTOR OF POLICE, PALAKKAD. 2. THE WELFARE FUND INSPECTOR, KERALA TODDY WORKERS WELFARE FUND BOARD, PALAKKAD. 3. THE DISTRICT COLLECTOR, PALAKKAD. 4. THE ASST. EXCISE COMMISSIONER, PALAKKAD. 5. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM. ADV. SRI.A.K.JOHN, SC, KTWWFB FOR R2 GOVERNMENT PLEADER SMT.R.BINDU FOR R1,3,4,5 SRI.K.D.BABU,SC,KTWWFB FOR R2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17/03/2009, ALONG WITH WA NO. 2040 OF 2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- W.A. NO.2003 & 2040 OF 2006 ----------------------------------------- Dated 17th March, 2009. JUDGMENT Balakrishnan Nair, J. W.A.No.2003/2006: The writ petitioner is the appellant. The respondents herein were the respondents in the Writ Petition. The point that arises for decision in this case is regarding the correctness of the interpretation to Rule 5(2)(a) of the Kerala Abkari Shops Disposal Rules, 2002 (hereinafter referred to as “the Rules”), as it stood in the year 2002-03. 2. The brief facts of the case are the following: The appellant had run six toddy shops during the year 1996-97 and three shops each during the years 1997-98, 1998-99, 1999-2000 and 2000-01. During the year 2002-03, the Government framed a policy to give preference to persons, who run toddy shops earlier, in the matter of grant of licence to run toddy shops. The norm prescribed for the same was that the applicant should have run not more than three toddy shops in any of the abkari years between 1996-97 WA NOS.2003 & 2040/06 2 and 2000-01. The appellant thinking that he is a person qualified in terms of the Rules, submitted his application. It was accompanied by Ext.P1 certificate issued by the 1st respondent Circle Inspector of Excise, Palakkad, stating that the appellant has conducted toddy shop Nos.117, 118 and 119 of Palakkad Excise Range during the year 1999-2000. In the application submitted by him, there was a query in column 13 thereof, calling upon him to state whether he has conducted not more than three shops in any year between 1996 and 2001. The appellant answered “yes”. He also mentioned the toddy shops he run in Palakkad Range. The auction of toddy shops for the financial year 2002-03 was held on 23.4.2002. The appellant was the successful bidder for T.S.No.37 of Chittur Excise Range. Immediately thereafter, the provisional allotment of that shop in his favour was cancelled by the Excise Commissioner by Ext.P5 order dated 26.4.2002. Not only the provisional grant in his favour was cancelled, but the annual rental of Rs. Four lakhs deposited by him was ordered to be confiscated. The aggrieved appellant challenged that order before this Court. The said Original Petition was disposed of by Ext.P6 judgment. The learned Single Judge did not interfere with the cancellation of the grant, but quashed the direction to confiscate the kisth amount paid by him. Though the appellant challenged that judgment by filing W.A.No.1497/2002, the said decision WA NOS.2003 & 2040/06 3 was affirmed by the Division Bench by Ext.P7 judgment. Later, the State filed an appeal, challenging Ext.P6 judgment to the extent it interferes with the forfeiture of the kisth amount paid by the appellant. That appeal was allowed and the 5th respondent Excise Commissioner was directed to reconsider the matter with notice to the appellant. The Excise Commissioner, after hearing the appellant, passed fresh orders, a copy of which is produced as Ext.P9. The Commissioner found that the appellant mis-represented regarding the running of more than three shops during the year 1996-97 and therefore, the action taken to confiscate the kisth amount was found correct. The writ petition was filed challenging Ext.P9 and also seeking consequential reliefs. 3. The learned Single Judge called for the records, perused the same and found that the answer given by the appellant in column 13 of his application, a specimen of which is produced as Ext.P4, was “yes”. It was also found that the appellant had mentioned about two shops in Palakkad Range, run by him. Finding that the above action of the appellant amounted to suppression of material facts, the Writ Petition was dismissed. Hence this appeal. 4. The learned counsel for the appellant Mr.M.G.Karthikeyan submitted that the rule which provided for preference was vague. It was not WA NOS.2003 & 2040/06 4 clear whether the running of more than three shops in any one of the years between 1996 and 2001 will act as a disqualification. In other words, the rule did not give fair warning to a person of reasonable intelligence. The competent authority also certified that the appellant is eligible, as evident from Ext.P1. Therefore, there was no deliberate suppression or mis- representation. So, the confiscation of the kisth amount paid by the appellant is unjustified. Therefore, the learned counsel prayed for refund of the confiscated kisth amount. 5. The learned Government Pleader, on the other hand, supported the judgment of the learned Single Judge. According to her, there is admitted non-disclosure of the correct facts by the appellant and so, the action of the competent authority was fully justified. Therefore, there is nothing wrong with the decision of the learned Single Judge, upholding the same, it was contended. 6. The relevant rule as it stood then reads as follows: “5. The Grant of privilege of vending Toddy Shops shall be subject to the following conditions, namely:-- (1) Not more than one toddy shop shall be sold to any one individual. (2)(a) While giving privilege, preference shall be given to those applicants who had previous experience in conducting Toddy Shops not exceeding three, in any particular year between the period 1996 to 2001 WA NOS.2003 & 2040/06 5 (b) The Circle Inspector of Excise of an Excise Circle shall certify such eligibility after verifying the records of Toddy Workers Welfare Fund Board.” Rule 5(17) as it stood then reads as follows: “(17) If it is found at any stage that any purchaser of privilege had suppressed facts in his application as to his eligibility including preference or produced fake documents and obtained the privilege declared or confirmed in his name or obtained any licence granted in his name, the licence issued to him, if any, will be cancelled and the whole of the amount paid buy him towards the annual rental of the shop, shall be forfeited to Government and the shop re-sold or otherwise disposed of.” Going by Rule 5(2) as it stood then, it is clear that if a person has run not more than three shops in any of the years between 1996 and 2001, he will be eligible. The rule does not warn a person of ordinary intelligence that if he has run more than three shops in any one of the above years, it will be a disqualification. In view of the vagueness in Rule 5(2), we feel that it is not just or proper to confiscate the kisth amount paid by the appellant. It is one of the fundamental principles of rule of law that all statutory provisions having penal consequences should be defined with precision and notified in advance, so that they will give fair warning and a person of reasonable intelligence can avoid violating them. If the law is vague, a person may violate it unwittingly and later he may be accused ex post facto that what he has committed was an offence. Such a law impermissibly delegates to the WA NOS.2003 & 2040/06 6 police or the Judge to decide from case to case what is an offence and what is not an offence. Such legal provisions are ultra vires for vagueness and therefore, unenforceable. See the opinion of Douglas, J in Krishian v. Bd. of Regents [(1967) 385 U.S. 589], which is as follows: “ .... a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case .... . Certainly one of the basic purposes of the Due Process Clause has always been to protect a person against having the Government to impose burdens upon him except in accordance with the valid laws of the land. Implicit in this constitutional safeguard is the promise that the law must be one that carries an understandable meaning with legal standards that courts must enforce.” Also see the observations of our Apex Court in Kartar Singh v. State of Punjab [(1994)3 SCC 569]. At para 130, it is stated as follows: “It is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. It is insisted or emphasised that laws should give the person of ordinary intelligence a reasonable opportunity to know what is WA NOS.2003 & 2040/06 7 prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Such a law impermissibly delegates basic policy matters to policemen and also judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. More so uncertain and undefined words deployed inevitably lead citizens to 'steer far wider of the unlawful zone ... than if the boundaries of the forbidden areas were clearly marked'. ” 7. In view of the above principles, we have no doubt in our mind that the provisions of Rule 5(2) of the Rules, as it stood then and which were repealed subsequently, are vague and therefore, its infringement cannot lead to the disastrous consequence of forfeiture of the kisth amount paid by the licensee. Accordingly, the Writ Appeal is allowed. The judgment of the learned Single Judge is reversed. Ext.P9 is quashed. The respondents 1, 4 and 5 shall refund the kisth amount confiscated, to the appellant within two months from the date of production of a copy of this judgment. W.A.No.2040/2006: 8. The point raised in this appeal is squarely covered by the judgment in W.A.No.2003/2006. Accordingly, this Writ Appeal is also allowed. The judgment of the learned Single Judge is reversed and Ext.P9 is quashed. WA NOS.2003 & 2040/06 8 The respondents 1, 4 and 5 are directed to refund the confiscated kisth amount to the appellant within two months from the date of production of a copy of this judgment. K.BALAKRISHNAN NAIR, JUDGE. M.L.JOSEPH FRANCIS, JUDGE. nm/