Kerala High Court
E.L.Joseph vs State Of Kerala on 7 September, 2011
Author: C.K. Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
WEDNESDAY, THE 4TH DAY OF APRIL 2012/15TH CHAITHRA 1934
WP(C).No. 32993 of 2011 (Y)
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PETITIONERS :
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1. E.L.JOSEPH, S/O.LUKKA,
ELAVUNKAL HOUSE, TALIPARAMBA AMSOM, KUTTIKOL P.O.
KANNUR DISTRICT.
2. K.P.MADHAVI, W/O.K.K.NARAYANAN,
K.K.HOUSE, ANDOOR AMSOM, PARASSINIKKADAVU P.O.
KANNUR DISTRICT.
3. P.P.GANGADHARAN, S/O.OTHENAN,
SHINOY NIVAS, CHELERI AMSOM, P.O.CHELERI
KANNUR DISTRICT.
BY ADVS.SRI.K.V.SOHAN
SRI.P.U.SHAILAJAN
RESPONDENTS :
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1. STATE OF KERALA,
REPRESENTED BY CHIEF SECRETARY, SECRETARIAT
THIRUVANANTHAPURAM-695001.
2. THE SECRETARY,
DEPARTMENT OF EXCISE, GOVERNMENT OF KERALA
SECRETARIAT, THIRUVANANTHAPURAM-695001.
3. THE EXCISE COMMISSIONER,
COMMISSIONERATE OF EXCISE
THIRUVANANTHAPURAM-695001.
4. THE DEPUTY COMMISSIONER OF EXCISE,
KANNUR, KANNUR-1.
5. THE DISTRICT COLLECTOR, KANNUR,
KANNUR-1.
6. P.V.SREEDHARAN,
S/O.KUNHAPPA, PUTHIYAVALAPPIL HOUSE, KAYARALAM AMSOM
DESOM, P.O.KAYARALAM, KANNUR DISTRICT-670602.
R1 TO R5 BY SR.GOVERNMENT PLEADER SRI.T.P.SAJID
R6 BY SR.ADV. SRI.C.C.THOMAS
BY ADVS. SRI.M.G.KARTHIKEYAN
SRI.NIREESH MATHEW
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-04-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
AV
W.P.(C).NO.32993 OF 2011
APPENDIX
PETITIONER'S EXHIBITS :
EXT.P1 : COPY OF THE G.O.(P) NO.126/2011/TD DATED 7.9.2011
EXT.P2 : COPY OF THE GUIDELINES TO BE FOLLOWED IN THE SALE OF TODDY SHOP
FOR 2011-2012 ALONG WITH PAYMENT CHART FOR SREEKANDAPUYRAM
RANGE.
EXT.P3 : COPY OF THE LICENCE WITH RESPECT TO THE NEDIYANGA SHOP ISSUED TO
THE PETITIONERS.
EXT.P4 : COPY OF THE WRIT PETITION NO.25573/2011 FILED BY THE 6TH RESPONDENT.
EXT.P5 : COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENTS IN WRIT
PETITION NO.25573/2011.
EXT.P6 : COPY OF THE JUDGMENT IN W.P.(C) NO.25573/2011.
EXT.P7 : COPY OF THE NOTICE DATED 21.11.2011 RECEIVED BY PETITIONERS FROM
THE 2ND RESPONDENT.
EXT.P8 : COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONERS BEFORE
THE EXCISE COMMISSIONER.
EXT.P9 : COPY OF THE ORDER DATED 3.12.2011 OF THE 3RD RESPONDENT.
RESPONDENT'S EXHIBITS :
EXT.R6(a) : COPY OF THE NOTIFICATION, GO(P)NO.126/2011/TD DATED 7.9.2011 ISSUED
BY THE GOVT.
EXT.R6(b) : COPY OF THE APPLICATION DATED 16.9.2011 OF THE PETITIONER AND
OTHERS.
EXT.R6(c) : COPY OF THE IDENTITY CARD DATED 15.9.2011 ISSUED BY THE VILLAGE
OFFICER, KAYARALAM.
EXT.R6(e) : COPY OF THE CERTIFICATE DATED 15.9.2011 ISSUED BY THE EXCISE
INSPECTOR, SREEKANDAPURAM.
EXT.R6(f) : COPY OF THE CERTIFICATE DATED 14.9.2011 ISSUED BY THE C.I. OF EXCISE,
THALIPARAMBA.
EXT.R6(g) : COPY OF THE AFFIDAVIT DATED 15.9.2011 SUBMITTED BEFORE THE 2ND
RESPONDENT.
EXT.R6(h) : COPY OF THE CERTIFICATED DATED 15.9.2011 ISSUED BY THE
COMMERCIAL TAX OFFICER, TALIPARAMBA.
EXT.R6(i) : COPY OF THE CERTIFICATE DATED 15.9.2011 ISSUED BY THE WELFARE
FUND INSPECTOR, KERALA ABKARI WORKERS WELFARE FUND BOARD,
KOZHIKODE.
W.P.(C).NO.32993 OF 2011
EXT.R6(j) : COPY OF THE CERTIFICATE DATED 15.9.2011 ISSUED BY THE WELFARE
FUND INSPECTOR, KERALA TODDY WORKERS WELFARE FUND BOARD,
KANNUR.
EXT.R6(k) : COPY OF THE RTION CARD OF THE PETITIONER.
EXT.R6(l) : COPY OF THE CERTIFICATE DATED 20.09.2011 ISSUED BY THE KANNUR DIST.
CO-OP.BANK LTD., SREEKANDAPURAM EVENING BRANCH.
EXT.R6(m) : COPY OF THE PETITION DATED 20.09.2011 SUBMITTED BEFORE THE EXCISE
COMMISSIONER.
EXT.R6(n) : COPY OF THE LETTER DATED 20.09.2011 ISSUED BY THE PUBLIC
INFORMATION OFFICER, EXCISE DIVISION OFFICE, KANNUR.
EXT.R6(o) : COPY OF THE JUDGMENT DATED 19.10.2011 IN WP(C)NO.25573/2011 PASSED
BY THIS HON'BLE COURT.
/TRUE COPY/
P.A TO JUDGE
AV
C.K. ABDUL REHIM, J.
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W.P.(c) No. 32993 OF 2011-Y
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DATED THIS THE 4th DAY OF APRIL, 2012
J U D G M E N T
The petitioners are challenging Ext.P9 order issued by the 3rd respondent. The petitioners and the 6th respondent were licencees of different toddy shops in Group-VI of Sreekandapuram Excise Range, for the year 2006-2007. By virtue of provisions contained in Rule 5 (1) of the Abkari Shops Disposal Rules, 2002 they were eligible to claim preferential right for conduct of toddy shops in the said group for the year 2011-2012. Allotment of the toddy shops in the group by way of sale of the privilege was conducted on 16-09-2011, in which all the 4 shops in the group were alloted to the petitioners. The sale of the privilege was confirmed and the petitioners continued as licencees of the shops in question for the year 2011-2012. By virtue of the extension granted, even now the petitioners are continuing as licencees.
W.P.(c) No.32993/2011 -2-
2. With respect to the allotment made on 16-09-2011, there exist a dispute between the petitioners on one side and the 6th respondent on the other side. The 6th respondent challenged confirmation of the sale in favour of the petitioners on the basis of an allegation that he has been cheated by the petitioners. According to him, the Demand Drafts purchased by him were used by the petitioners for the purpose of obtaining the allotment, in violation of the specific agreement arrived between the petitioners and the 6th respondent to purchase the privilege in joint name of all of them. The 6th respondent had challenged the allotment and its confirmation before this court, in W.P (c) No.25573/2011. Through Ext.P6 this court directed the 3rd respondent to consider and dispose of a representation submitted by the 6th respondent, which was marked as Ext.P13 in that writ petition, after hearing all the parties concerned. Exhibit P9 is the consequential order issued by the 3rd respondent in which the 3rd respondent had cancelled the licences in favour of the petitioners with respect to the toddy shops in Group-VI, invoking power W.P.(c) No.32993/2011 -3- vested under Rule 5 (17) of the Disposal Rules. The petitioners are challenging Ext.P9 decision in this writ petition.
3. Before the Excise Commissioner, contentions were raised on behalf of 6th respondent that a joint application for purchase of the privilege was prepared including his name, but his name was not called for signing the documents, at the sale hall. Therefore he filed a petition before the District Collector on the sale hall itself. According to the 6th respondent the petitioners have used 3 Demand Drafts purchased by him for the purpose of getting allotment of the privilege. This according to him was done against the specific agreement arrived to purchase the privilege in the joint name by submitting the joint application. Contention of the 6th respondent is that the petitioners have cheated him and purchased the privilege by using the above said Demand Drafts.
4. Per contra, the petitioners contended before the 3rd respondent that, there was an understanding for submitting joint application for allotment of the shops in the group and W.P.(c) No.32993/2011 -4- there was a specific understanding to allot the 'Nediyanga Shop' to the 6th respondent, subject to condition of the 6th respondent remitting the entire amount due with respect to the 'Nediyanga Shop'. But the 6th respondent was not prepared to make payment of the amount required for purchase of 'Nediyanga Shop'. Therefore a fresh application was submitted, excluding the 6th respondent.
5. After considering the rival contentions, in Ext.P9, the 3rd respondent observed that, it is clear that the demand drafts produced by the 6th respondent has been used for the purchase of toddy shops by the petitioners. He further opined that there is no right to him to interfere in any of the disputes between the petitioners and the 6th respondent, which of civil nature, and that he has no responsibility to settle the issue between the parties. But the 3rd respondent further observed that the petitioners have used the Demand Drafts purchased by the 6th respondent and therefore it is to be treated as a 'Binami Transaction'. He further observed that going by the affidavit submitted by the petitioners before the District Collector they have raised the fund for W.P.(c) No.32993/2011 -5- purchase of the toddy shops from their "business and relatives". But, contrary to such an affirmation, the Demand Drafts used were purchased by the 6th respondent. Hence it is observed that the licence granted in favour of the petitioners are liable to be cancelled. For arriving such a decision, the 3rd respondent had relied on the provisions of Rule 5 (17) of the Abkari Shops Disposal rules, 2002.
6. While considering the question as to whether Ext.P9 is sustainable or not, it will be beneficial to consider the provisions contained in Rule 5 (17), which extracted hereunder;
"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 by him towards the annual rental of the shop or shops, shall be forfeited to Government and the shop or shops re- sold or otherwise disposed of."
7. In the case at hand, the parties are not in dispute with respect to the fact that the alleged joint application prepared by the petitioners along with the 6th respondent W.P.(c) No.32993/2011 -6- was not submitted to the authority concerned at the Auction Hall. It is also not in dispute that the allotment was made on the basis of the application submitted by the petitioners alone. However, another fact which is not in dispute is that the petitioners have used 3 Demand Drafts purchased by the 6th respondent. The 6th respondent has no case that the Demand Drafts were not given to the petitioners nor he had a case that the Demand Drafts were utilized without his consent or knowledge. His case is that Demand Drafts were entrusted only for purchase of the privilege in the joint name, utilizing the joint application. But it is alleged that the petitioners have utilized the Demand Drafts for the purpose of purchasing the privilege in their own name. As rightly observed by the 3rd respondent in Ext.P9, it is not the responsibility of the Excise Commissioner to settle the dispute between the parties and he has no right to interfere in the civil dispute.
8. For cancellation of licence already granted, the ingredients contemplated under Rule 5 (17) are, (i) there should be proof to the effect that the purchaser had W.P.(c) No.32993/2011 -7- suppressed facts in his application as to the eligibility or (ii) the purchaser had produced any fake documents for the purpose of getting the privilege declared in his name and for the purpose of obtaining licence granted in his name. In the case at hand, the finding of the 3rd respondent is that "on examination of the affidavits submitted by the respondents before the District Collector at the time of sale they have raised fund for the purchase of toddy shops from their business and relatives". Sri C.C. Thomas, learned senior counsel appearing for the 6th respondent contended that, the affidavit, which is referred to, is the declaration contemplated under Rule 5 (7) (v) of the Disposal Rule and the informations furnished therein are matters which touches the eligibility of the party for purchase of the privilege. Therefore the factual situation prevailing, which is contrary to the terms of the affidavit, will amount to suppression of facts, is the contention.
9. On the other hand Sri. K.V. Sohan, learned counsel for the petitioners contended that the 3rd respondent had not arrived at any conclusion that there was suppression of W.P.(c) No.32993/2011 -8- any material facts in the application on the basis of which the privilege has been alloted. It is pertinent to note that Rule 5 (7) (v) insist that a declaration disclosing the source of fund which is being utilized for purchase of toddy shops, should also be accompanied along with application. The petitioners have stated in the declaration that they have raised fund from their 'business and their relatives'. The foremost question to be considered is whether the petitioners were bound to disclose that they were also using the Demand Drafts purchased by the 6th respondent along with other Demand Drafts. Secondly, even assuming (without admitting) that, the word used 'from business and relatives' will not take in utilisation of the Demand Drafts purchased by the 6th respondent, whether that will amount to a suppression as contemplated under Rule 5 (17)? As stated above, Rule 5 (17) contemplates only with respect to suppression of facts in the application as to the eligibility. Nowhere in the disposal Rules it is stated that if a person borrows money from anybody, for purchase of the privilege, that will in any manner disentitled him for getting W.P.(c) No.32993/2011 -9- allotment. Therefore, I am of the view that even if a wrong information is furnished in the affidavit submitted which is the declaration as contemplated under rule 5 (7) (v), that will not affect the eligibility of the purchaser in getting the privilege. Hence I am of the view that the conclusion arrived at by the 3rd respondent for canceling the licence is not legally sustainable.
10. Under the above mentioned circumstances the writ petition is allowed and Ext.P9 is hereby quashed. However, it is made clear that the petitioners as well as the 6th respondent will be eligible for preferential rights for purchase of the privilege for the future periods, depending on the policy and Rules which will be made applicable, on the basis of the fact that they were licencees for the year 2006-2007, if the Rule applicable for the relevant year permits such privilege.
Sd/-
C.K. ABDUL REHIM, JUDGE.
AMG True copy P.A to Judge