IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 4TH MARCH 2008 / 14TH PHALGUNA 1929 WP(C).No. 5837 of 2008(T) ------------------------- PETITIONER: ------------ P.I.AVIRAH, (RETIRED HEADMASTER, ST.JOSEPH'S H.S., KARIMANNOOR), PAIMPILLIL HOUSE, KARIMANNOOR P.O. THODUPUZHA - 685 581. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SRI.S.A.ANAND RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN : 695 001. 2. THE COMMISSIONER OF EXCISE, COMMISSIONERATE OF EXCISE, PUBLIC OFFICE BUILDINGS, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM. PIN : 695 033. 3. THE ASSISTANT EXCISE COMMISSIONER, EXCISE DIVISION OFFICE, IDUKKI, THODUPUZHA P.O., PIN : 685 584. 4. BABY CHACKO, LICENSEE OF T.S.NO.53/2007-2008 KURUMPUPADOM, KARIMANNOOR P.O., THODUPUZHA, PIN : 685 581, IDUKKI DISTRICT. R1 TO R3 BY GOVERNMENT PLEADER, SRI.M.K.PUSHPALATHA R4 BY ADV.SRI.C.C.THOMAS SRI.M.G.KARTHIKEYAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5837/2008/T APPENDIX PETITIONER'S EXHIBITS: EXT. P1: COPY OF THE CERTIFICATE OF AWARD FOR THE BEST TEACHER FROM HIS EXCELLENCY THE PRESIDENT OF INDIA. EXT. P2: COPY OF THE PHOTO OF THE SIGN BOARD ERECTED BEFORE THE SHOP. EXT. P3: COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT ON 15.1.2008. EXT. P4: COPY OF THE COMPLAINT SUBMITTED BY THE PETITINER BEFORE THE SUB INSPECTOR OF POLICE, KARIMANNOOR POLICE STATION ON 15.1.2008. RESPONDENT'S EXHIBITS: EXT. R4(A): COPY OF THE LICENSE NO.23/07-08 ISSUED IN RESPECT OF TODDY SHOP NO.53/07-08 BY THE ASST. EXCISE COMMISSIONER, IDUKKI, DATED 18.5.2007. /TRUE COPY/ P.A. TO JUDGE JP THOTTATHIL B.RADHAKRISHNAN , J. ======================= W.P.(C) No.5837 of 2008(T) ======================= Dated this the 4th day of March, 2008 JUDGMENT The 4th respondent was issued Ext.R4(a) licence on 18.5.2007 to conduct a Toddy Shop. The petitioner, a retired teacher and recipient of Ext.P1, challenges the licence on different grounds. He relies on Rule 7(15) of the Kerala Abkari Shop Disposal Rules, 2002 and Section 18A(2) of the Abkari Act to state that the issuance of licence on 18.5.2007 that is beyond the period of one year is not only without authority but in violation of the laws. He further states that the premises from which the Toddy is being sold is in a building which is not approved by the Panchayat authorities. He further states that the sale is not only unauthorised but within the prohibited distance from certain institutions. 2. Referring to Rule 5(16) of the Rules, it is pointed out by the learned Government Pleader that the requirements of execution of agreement etc. have to be done within a reasonable W.P.(C) No.5837/2008/T -2- time and that the agreement has been executed within a reasonable time and hence there is no violation of the Rules. The learned counsel appearing for the 4th respondent submits that Rule 7(15) is only part of the general conditions applicable to licences and the provision in Rule 7(15) that shops not opened within one month from the date of receipt of confirmation of sale of shop shall be liable to be resold or disposed otherwise at the risk and loss of the licencees is only a liability which the government may enforce and is not one that will result in the licence becoming void. The general conditions of licence which are incorporated in the licence issued and signed by the licencee is characterized by the learned counsel for the 4th respondent as not in terms, mandatory nature, in the sense that it does not result in any statutory cancellation of the licence and that if the government does not move to enforce the liability of being resold or disposed otherwise, a citizen cannot insist on the enforcement of that Rule. In that sense Rule 7(15) is characterized as only directing and not mandatory. 3. Even if I were to resolve all the issues raised in this writ petition, the counter affidavit of the 4th respondent contains W.P.(C) No.5837/2008/T -3- the averment that he had done his part of the requirement in terms of the rules, however, that the issuance of licence was delayed because the files were processed by the department after considering the objections and such delay cannot be put against the 4th respondent. 4. The learned counsel for the petitioner has referred to the judgment of this Court in Balakrishnan Nair v. State of Kerala (1996 (1) KLT 14) to argue that a prescription as to law binds not only private citizens but also the statutory authorities, who are bound to enforce the law. He, accordingly, urges that even if the department was in default, the licence is void. 5. A plain reading of Rule 7(15) appears to suggest that the said part of the general conditions of licence gives the Government the power to have the shop resold or disposed of otherwise. If it is not opened within one month from the date of receipt of confirmation of sale of that shop, such resale or disposal could be at the risk and loss of licencees. Rule 5(16) referred to by the learned Government Pleader which primarily governs the grant of privilege of vending toddy enjoins the condition that the original rental paid by the licencee shall be W.P.(C) No.5837/2008/T -4- forfeited and the group resold or otherwise disposed of if the purchaser fails to comply with the requirements of executing the agreement and taking out necessary licence within a reasonable time. The time lag in the case cannot be treated as unreasonable since Ext.R4(a) licence is issued on 18.5.2007. Rule 5(16) is also designed in such a way that the result of enforcement of that rule is forfeiture and the result of that rule does not provide for an automatic cessation of the licence by efflux of time. That rule also does not require the Government or statutory authority to apply forfeiture on the expiry of one month but leaves it to the wisdom of the Abkari officers to decide whether the licence has been availed and an agreement executed within a reasonable time. 6. As of now, the considerations of the aforesaid questions would exist, in my considered view, is only academic because, by the efflux of time, all that remains is the expiry of the period of licence for this year, which is co-terminus with the expiry of the current Abkari year. It is stated that the Government has already released the policy document in relation to the Abkari policy for the next year and it does not provide for W.P.(C) No.5837/2008/T -5- any renewal of any existing licence. 7. Having regard to the aforesaid, ends of justice will remain satisfied if the competent authority takes care of the petitioner's complaint regarding the identity of the land and building and his objections to the conduct of the toddy shop in the said site and in the building in question. In the result, while refusing to interfere with the impugned licence, it is directed that the objections of the petitioner to the housing of a toddy shop in the site in question shall be considered if and when any shop is proposed to be licenced from the said site in the coming Abkari year. Writ petition ordered accordingly. THOTTATHIL B.RADHAKRISHNAN, JUDGE jp