IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 19TH MARCH 2009 / 28TH PHALGUNA 1930 WP(C).No. 10729 of 2008(B) -------------------------------------- PETITIONER: ------------------- K.C.SURESH BABU, AGED 37 YEARS, S/O.LATE M.K.CHANDRAN, MARUTHAMPADAM, VEETTIKKAL KADAVU, MANGALAM DAM P.O., ALATHUR, PALAKKAD DISTRICT. BY ADV. MR.M.G.KARTHIKEYAN. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY, TAXES (A) DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE EXCISE COMMISSIONER, THIRUVANANTHAPURAM. 3. THE ASST.EXCISE COMMISSIONER, THRISSUR. 4. THE CIRCLE INSPECTOR OF EXCISE, THRISSUR DISTRICT. 5. THE DISTRICT COLLECTOR, THRISSUR. 6. T.S.SUSEELAN, S/O.SANKARAN, THYVALAPPIL HOUSE, ANTHIKKADU P.O. THRISSUR DISTRICT. R1 TO R5 BY GOVT. PLEADER SMT. SUDHA DEVI, R6 BY ADVS. MR. P.VIJAYA BHANU, MR.M.GEORGE THOMAS. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. V.GIRI, J ------------------- W.P.(C).10729/2008 -------------------- Dated this the 19th day of March, 2009 JUDGMENT Petitioner was the licensee of toddy shop No.38 in Anthikkadu Excise Range from 2002 to 2007. According to him, he was allotted all the toddy shops in Group No.III of Kolazhi range (old Anthikkadu range). This group included six toddy shops. Petitioner therefore, claimed that in terms of clause 11 of the abkari policy notified on 29.2.2008, he was entitled to get preference in the allotment of the shops in group-III of Kolazhi Excise Range for the year 2008-09. 2. Petitioner would therefore contend that he had applied to obtain a certificate evidencing his preference for such allotment and reference in this regard is made to the certificates issued by the C.I. of Excise, Thrissur, the Sales Tax Officer, the Toddy Workers Welfare Fund Inspector and the Abkari workers welfare fund Inspector. W.P.(C).10729/2008 2 3. The auction was conducted under the supervision of the District Collector on 27.3.2008. It was held in the Town hall at Thrissur. Obviously the auction related to the allotment of toddy shops in all other groups and was governed by the Kerala Abkari Shops Disposal Rules, 2002 (for short 'the Rules'). Rule 5(4) of the Rules reads as follows:- 5(4).Any individual who intends to avail the privilege of vending toddy in any shop as my be notified in sub-rule (1) of Rule 4 shall be present in the place/room where the sale is conducted. Each intending purchaser shall pay a sum of Rs.200/- as entrance fee to the Assistant Excise Commissioner of the Division concerned before the time of sale and shall obtain a receipt thereof from that officer. The entrance fee thus paid shall not be refunded. He/she shall bring an identity card in Form-I appended to these rules containing his/her recent photograph and his/her signature duly attested by a Revenue Officer not below the rank of a W.P.(C).10729/2008 3 village Officer of the area where he/she permanently resides. The entrance fee receipt and identity card shall also serve as hall ticket for the admission of the intending purchasers into the sale room. No individual will be allowed to purchase the privilege as an agent for another. 4. According to the petitioner, he went to the premises where the Town Hall is situated with the requisite certificates evidencing his entitlement to claim a privilege. But he was denied access to the Town Hall and finding that there is no other privilege holder, the shops were allotted in favour of a stranger, namely the sixth respondent. This is challenged by the petitioner in the writ petition. 5. Finding that he was illegally denied access, petitioner had submitted a complaint before the Excise Commissioner as per Ext.P13 dated 27.3.2008, on the date of the auction itself. The case put forward by the petitioner in Ext.P13 is stated in paragraph 3 of the same, which reads as follows:- W.P.(C).10729/2008 4 “It is submitted that the petitioner prepared an application enclosing Annexures-A to H and went to participate in the allotment before the District Collector on 27.3.08. Due to the reasons best known to the officers therein, they did not permit the petitioner to enter the hall and told the petitioner that he will not be permitted to participate in the allotment. Admittedly, the petitioner is the only person entitled to get preference as far as the toddy shop in Group No.III in Kolazhi excise range evidenced by Annexure-B certificate. The petitioner is not permitted to enter the hall and to participate in the allotment. The conduct of the officers therein is illegal and arbitrary and only to help some other rival applicants. It is understood that the shops are allotted to a third party.” 6. Finding that no action is being taken on Ext.P13 and challenging the provisional allotment, which was made in the meanwhile in favour of the sixth respondent, petitioner had approached this Court with W.P.(C).10729/2008 5 this writ petition. Pursuant to an interim order passed by this Court, directing a decision to be taken on Ext.P13, the Excise Commissioner, passed Ext.P14 order dated 24.4.2008. The Excise Commissioner found that the petitioner had not remitted the entrance fee referred to in Rule 5(4) of the Rules and it is therefore, that he was prevented from entering the auction hall. Excise Commissioner therefore, found that the petitioner was not eligible to participate in the sale since he had not remitted the entrance fee. Ext.P14 has also been challenged in this writ petition. Counter affidavit has been filed by the contesting respondents. 7. I heard Mr.Karthikeyan, learned counsel for the petitioner, Mr.Vijayabhanu, learned counsel for the sixth respondent and Smt.Sudha Devi, learned Government Pleader. 8. Rule 5(4) of the Rules which has already been extracted above, makes it clear that if any person, W.P.(C).10729/2008 6 wants to enter the auction hall, he should have obtained entrance fee receipt and should also have an identity card. 9. Learned Government Pleader supports Ext.P14 order, on instructions obtained in that regard. Rule 5 (4) of the Rules mandates that a person who wants to participate in the auction will have to remit an amount of Rs.200/- as entrance fee and obtain a receipt in that regard. According to the respondents, petitioner was denied access to the auction hall, because he had not remitted the entrance fee. Any person, who had not remitted the entrance fee and was not issued entrance fee receipt in this regard, cannot claim a right to enter the auction hall for the purpose of participating in the auction. Remittance of entrance fee and possession of the entrance fee receipt along with the identity card is therefore, a requirement which is statutorily prescribed, for the purpose of entering the auction hall and participating in the auction. Thus, the stand taken by the respondents that the petitioner was denied W.P.(C).10729/2008 7 access because he had not produced the entrance fee receipt, cannot be faulted. 10. Learned counsel for the petitioner submits that the petitioner was ready to remit the entrance fee but was prevented from entering the hall and it is therefore, that he was not in a position to remit the entrance fee and obtain a receipt. I am not inclined to accept the submission for more than one reason. Firstly, the petitioner does not have a case in Ext.P13 that he had gone to the premises where the auction was conducted and was denied permission to even remit the entrance fee. Secondly, it is admitted that the entrance fee could have been remitted on 25.3.2008 and 26.3.2008 in the Excise Division Office, Thrissur. It could also have been remitted before 10.00 a.m on 27.3.2008. Petitioner has no case that he made an attempt to remit the entrance fee on 25.3.2008 and 26.3.2008 nor does he have a specific case in that regard in the writ petition as it was originally instituted, that he tried to remit the W.P.(C).10729/2008 8 entrance fee before 10.00 a.m on 27.3.2008, but was denied permission even to do so. After Ext.P14 order was passed, petitioner sought for amendment of the writ petition and for the first time he took up a contention to the effect that his main grievance was that he was prevented from remitting the entrance fee for the purpose of gaining access to the auction hall. I am not in a position to accept this contention, firstly for the reason that in the earlier representation filed by the petitioner, Ext.P13, he did not have any such case nor did he plead such a case in the writ petition as it was originally instituted. Such a contention is seen to have been taken, for obvious reasons only when the writ petition itself was amended, after Ext.P14 order was passed. 11. The net result is that the petitioner did not actually remit the entrance fee as contemplated by Rule 5(4) of the Rules when he sought for permission to enter the auction hall. If that be so, respondents cannot be faulted with for denying the petitioner W.P.(C).10729/2008 9 access to the entrance hall. Since the petitioner did not participate in the auction, officials proceeded on the premise that there was no privilege holder in terms of clause 11 of the Abkari Policy. Consequently, allotment was made in favour of a stranger. In these circumstances, the stand taken in Ext.P14 cannot be considered as illegal or otherwise in derogation of the provisions of the Rules. Therefore, I find no merit in the writ petition. Accordingly, the same is dismissed. V.GIRI, Judge mrcs