IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 3RD DECEMBER 2009 / 12TH AGRAHAYANA 1931 WP(C).No. 27311 of 2009(H) --------------------------------------- PETITIONER(S): ----------------------- 1. SIJUMON THANKAPPAN, AGED 37 YEARS, S/O.THANKAPPAN, POOTHALAKOTTIL HOUSE, ARUNOOTTIMANGALAM P.O., KADUTHURUTHY, KOTTAYAM DISTRICT. 2. E.P. SADANANDAN, AGED 40 YEARS, S/O.PARAMESWARAN, IRUCHIRACKAL HOUSE, KATTAMPAKKU P.O., KADUTHURUTHY, KOTTAYAM DISTRICT. BY ADV. MR.M.G.KARTHIKEYAN MR.NIREESH MATHEW RESPONDENT(S): ------------------------- 1. THE DISTRICT COLLECTOR, COLLECTORATE P.O., KOTTAYAM. 2. THE DEPUTY COMMISSIONER OF EXCISE, COLLECTORATE P.O., KOTTAYAM. 3. V.B. RAJAN, S/O.BHASKARAN, SIVA SAKTHI, VANDANNOOR P.O., POONJAR, KOTTAYAM DISTRICT. 4. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM. R1, R2 & R4 BY GOVERNMENT PLEADER R3 BY ADV. MR.N.RAGHURAJ, SMT.K.AMMINIKUTTY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/12/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 27311/2009-H APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE APPLICATION DATED 24/06/2009 SUBMITTED BY THE 1ST PETITIONER. EXT.P2: COPY OF THE APPLICATION DATED 24/06/2009 SUBMITTED BY THE 2ND PETITIONER. EXT.P3: COPY OF THE PETITION DATED 25/06/2009 SUBMITTED BEFORE THE 4TH RESPONDENT. EXT.P4: COPY OF THE ORDER NO.XA1-26000/2009 DATED 29/06/2009 PASSED BY THE 4TH RESPONDENT. EXT.P5: COPY OF THE JUDGMENT DATED 31/03/2009 IN S.C. NO.66/2008 PASSED BY THE ADDL. DISTRICT & SESSIONS JUDGE (ADHOC)-II, KOTTAYAM. EXT.P6: COPY OF THE JUDGMENT DATED 18/03/2008 IN WP(C) NO. 9048/2008 PASSED BY THIS HONOURABLE COURT. EXT.P7: COPY OF THE JUDGMENT DATED 31/07/2009 IN WP(C) NO. 17940/2009 PASSED BY THIS HONOURABLE COURT. EXT.P8: COPY OF THE ORDER NO.XA6-14664/2009 DATED 10/09/2009 PASSED BY THE EXCISE COMMISSIONER. EXT.P9: COPY OF THE ARGUMENT NOTES DATED 08/08/2009 SUBMITTED BEFORE THE EXCISE COMMISSIONER. EXT.P10: COPY OF THE ORDER DATED 26/06/2009 IN WP(C) NO. 17940/2009 IS PASSED BY THIS HONOURABLE COURT. EXT.P11: COPY OF THE LETTER DATED 18/07/2009 ISSUED BY THE PUBLIC INFORMATION OFFICER TO THE 1ST PETITIONER. RESPONDENT'S EXHIBITS: EXT.R4(a): COPY OF THE GO(MS).27/09/TD DATED 13/02/2009. EXT.R4(b): COPY OF THE GO(MS).100/09/TD DATED 12/06/2009. EXT.R4(c): COPY OF THE GUIDELINES ISSUED BY THE GOVERNMENT. EXT.R4(d): COPY OF THE PREFERENCE CERTIFICATE NO.VC.5/09(A)(a) DATED 22/06/2009 ISSUED BY THE CIRCLE INSPECTOR OF EXCISE, VAIKOM. EXT.R3(a): COPY OF THE ABKARI POLICY FOR THE YEAR 2009-2010 PUBLISHED VIDE G.O.(MS) NO.27/09/TAXES DATED 13/02/2009. EXT.R3(b): COPY OF THE GUIDE LINES. //TRUE COPY// P.S. TO JUDGE rs. THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.27311 of 2009-H = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 3rd day of December, 2009. JUDGMENT 1.The petitioners along with the third respondent and another Baiju were co-licensees of different toddy shops during 2007-08. In one of the shops of which the third respondent was a co-licensee with another group under another excise range, an abkari offence was detected and a case was registered against the third respondent. As a consequence, the third respondent did not participate in the abkari auction for 2008-09, though he states that he desired to participate but was excluded by the Excise officers on the ground that an abkari case has been registered against him. During the subsequent abkari year 2009-2010 (the current year), the petitioners claimed preference on the strength of their continuous running of the shops and the third respondent claimed preference on the ground that WPC27311/09 -: 2 :- he has been subsequently exonerated by the Court in the criminal case. The Excise authorities treated the petitioners and the third respondent as entitled to preference. This resulted in draw of lots. The third respondent succeeded. The petitioners challenged it. The Excise Commissioner has turned down that. This is under challenge. 2.The plea of the petitioners is that under Rule 5 (1)(a) of the Kerala Abkari Shops Disposal Rules, 2002, the petitioners have the undisputed preference in terms of the first sentence of that rule. In so far as the third respondent is concerned, the petitioners contend that he was not entitled to preference because, his licence was not cancelled due to the registration of the abkari case against him and therefore, the subsequent exoneration by the Court is of no consequence. The substance of this argument, as projected by the petitioners' counsel, is that the third respondent, not having suffered the WPC27311/09 -: 3 :- cancellation of licence for the abkari year 2007- 08, i.e., during the year in which the abkari case was registered against him, continued to run the shop and cannot be treated as a person who was deprived of the commercial benefit of a privilege, taken away on a ground referable to the registration of an abkari case. 3.The question that pithily arises for decision is as to whether the third respondent was entitled to treat his absence from the arena for the year 2008-09 on a ground referable to the registration of the abkari case as a ground on which he could get a preference by virtue of the acquittal in the criminal case. True, the third respondent's licence was not cancelled for the year 2007-08. I may also notice that though the third respondent states that the Excise authorities had refused his request for participation for the year 2008- 09, the learned counsel for the petitioners points out that he had not challenged such denial. But, had the third respondent WPC27311/09 -: 4 :- participated in the year 2008-09, Rule 5(3)(i) of the Disposal Rules would stand staring at him describing him as ineligible for the preference since prosecution proceedings were pending against him before a court of law. Advertence to Ext.P5 judgment of acquittal issued by the Court of Session shows that the third respondent's case was committed for trial to the Court of Session on 26.3.2008, i.e., before the commencement of the abkari year 2008-09. By making an order of committal, it goes without saying that the learned Magistrate had taken cognizance and issued process prior to that. This means that the prosecution proceedings at the instance of the State by the presentment of the final report on the conclusion of investigation, had commenced in a court of law before the abkari year 2007-08 ended. Therefore, Rule 5(3) would, beyond doubt, disentitle the third respondent from competing for the privilege for the year 2008-09. The Abkari Officers cannot, therefore, be described as unjustified in having refused the third WPC27311/09 -: 5 :- respondent the right to be considered for the year 2008-09. In so far as the prescription of a preference in the second sentence of Rule 5(1)(a) of the Disposal Rules is concerned, the cancellation of licence “due to registration of abkari cases”, only means that if abkari cases are registered, thereby meaning registered by the abkari officers; could be in the primitive stage of a preliminary report or during the course of investigation; and subsequently that case results in an exoneration by a competent court, the preference may operate. But no preference under Rule 5(1)(a) can operate in favour of a person whose dis-entitlement is prescribed by Rule 5(3) of the Disposal Rules. In this view of the matter, notwithstanding the fact that the abkari officers had not cancelled the licence of the third respondent immediately following the registration of the abkari case against him, the resultant situation is not different. The acquittal in the criminal case is coupled with the fact that the third respondent was deprived WPC27311/09 -: 6 :- of his right to seek privilege during the year 2008-09. 4.In the aforesaid backdrop, the Excise Commissioner being a statutory authority and having considered and issued an order, the question would be as to whether it requires interference under Article 226 of the Constitution. The learned counsel for the petitioners very strenuously argued that the Commissioner has not adverted to the relevant facts and materials and has really not answered any of the issues arising for decision. The quality of quasi-judicial and administrative power may have different facets. It may sometimes find complete expression on the orders, with quality and precision, that a citizen may expect. It appears that when orders are subjected to judicial review, it may occur that all issues have not been completely answered. One of the sound principles for guidance in this jurisdiction is as to whether injustice has been WPC27311/09 -: 7 :- done to the petitioners by the order impugned. Having assimilated and considered the facts, I do not find that the impugned order results in injustice. For the aforesaid reasons, this writ petition fails. The same is accordingly dismissed. THOTTATHIL B.RADHAKRISHNAN, JUDGE. Sha/07/16-12