Kerala High Court
Benny Jose vs The Excise Commissioner on 17 March, 2014
Author: C.T. Ravikumar
Bench: C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
WEDNESDAY, THE 2ND DAY OF APRIL 2014/12TH CHAITHRA, 1936
WP(C).No. 6324 of 2014 (M)
---------------------------
PETITIONER(S):
BENNY JOSE, AGED 46 YEARS
S/O. JOSEPH, KONGOLAYIL HOUSE
THAZHAKKOTTU AMSOM & DESOM
KOZHIKODE TALUK AND DISTRICT.
BY ADVS.SRI.M.G.KARTHIKEYAN
SRI.NIREESH MATHEW
SRI.C.C.THOMAS (SR.)
RESPONDENT(S):
-------------------
1. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE
THIRUVANANTHAPURAM-695033.
2. THE DEPUTY COMMISSIONER OF EXCISE, KOZHIKODE-673305.
3. THE CIRCLE INSPECTOR OF EXCISE, KOZHIKODE-673305.
4. THE EXCISE INSPECTOR, EXCISE RANGE, KUNNAMANGALAM
KOZHIKODE DISTRICT-673571.
5. STATE OF KERALA,
REPRESENTED BY SECRETARY TAXES(A) DEPARTMENT
GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695033.
6. THE DISTRICT COLLECTOR, KOZHIKODE-673305.
*7.P.T.SUNIL KUMAR,
PUTHUKKUDY THAZHATH
CIVIL STATION P.O, KOZHIKODE
(* IMPLEADED AS ADDL.RESPONDENT NO.7 AS PER ORDER DATED 17.03.2014
IN I.A.NO.4021/2014.)
ADDL.R7 BY ADV. DR.K.P.SATHEESAN (SR.)
ADDL.R7 BY ADV. SRI.M.R.JAYAPRASAD
ADDL.R7 BY ADV. SRI.P.MOHANDAS (ERNAKULAM)
ADDL.R7 BY ADV. SRI.ANOOP.V.NAIR
ADDL.R7 BY ADV. SRI.S.VIBHEESHANAN
R1-R6 BY GOVERNMENT PLEADER SRI.G.GOPAKUMAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-04-2014,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 6324 of 2014 (M)
APPENDIX
PETITIONER(S)' EXHIBITS
P1. PHOTOCOPY OF THE CHEMICAL ANALYSIS CERTIFICATE DATED 22-12-12
ISSUED BY THE ASST. CHEMICAL EXAMINER TO GOVT. OF KERALA
KOZHIKODE.
P2. PHOTOCOPY OF THE CRIME AND OCCURRENCE REPORT ALONG WITH
MAHAZAR IN CR. NO. 14/2013 OF KUNNAMANGALAM EXCISE RANGE.
P3. PHOTOCOPY OF THE CHEMICAL ANALYSIS CERTIFICATE DATED 19-3-2013
ISSUED BY THE ASST. CHEMICAL EXAMINER TO GOVT. OF KERALA,
ERNAKULAM.
P4. PHOTOCOPY OF THE ORDER NO. XA 1-5324/13 DATED 17-3-2013 PASSED
BY THE 1ST RESPONDENT.
P5. PHOTOCOPY OF THE INTERIM ORDER DATED 22-3-2013 IN WPC NO.
8094/2013 PASSED BY THIS HON'BLE COURT.
P6. PHOTOCOPY OF THE CHEMICAL ANALYSIS CERTIFICATE DATED 19-10-2012
ISSUED BY THE ASST. CHEMICAL EXAMINER TO GOVT. OF KERALA,
KOZHIKODE.
P7. PHOTOCOPY OF THE CRIME AND OCCURRENCE REPORT ALONG WITH
MAHAZAR IN C.R. NO. 23/2013 OF KUNNAMANGALAM EXCISE RANGE.
P8. PHOTOCOPY OF THE CHEMICAL ANALYSIS CERTIFICATE DATED 26-4-2013
ISSUED BY THE ASST. CHEMICAL EXAMINER TO GOVT. OF KERALA,
ERNAKULAM.
P9. PHOTOCOPY OF THE ORDER NO. XA 1-5324/13 DATED 4-5-2013 PASSED BY
THE 1ST RESPONDENT.
P10. PHOTOCOPY OF THE INTERIM ORDER DATED 20-5-2013 IN WPC NO.
12135/2013 PASSED BY THIS HON'BLE COURT.
P11. PHOTOCOPY OF THE ORDER DATED 14-3-2013 IN CRL. M.C. NO. 1233/2013
PASSED BY THIS HON'BLE COURT.
P12. PHOTOCOPY OF THE ORDER DATED 24-2-2014 IN WPC NO. 4923/2014
PASSED BY THIS HON'BLE COURT.
P13. PHOTOCOPY OF THE ORDER DATED 27-6-2013 IN CRL. M.A. NO. 5024/2013
IN CRL. M.C. NO. 2511/2013 PASSED BY THIS HON'BLE COURT.
P14. PHOTOCOPY OF THE ORDER DATED 24-9-2013 IN CRL. M.A. NO. 7446/2013
IN CRL. M.C. NO. 4118/2013 PASSED BY THIS HON'BLE COURT.
P15.PHOTOCOPY OF THE APPLICATION DATED 5.3.2014 SUBMITTED BEFORE THE
6TH RESPONDENT.
RESPONDENT(S)' EXHIBITS:NIL
//TRUE COPY//
P.A.TO JUDGE
C.T. RAVIKUMAR, J.
==========================
W.P.(C). No.6324, 6359 & 6380 OF 2014
==========================
Dated this the 2nd day of April, 2014
JUDGMENT
In view of the commonness of the grievances of the petitioners and the issues involved in these writ petitions, they are taken up for joint consideration and disposal. The petitioners in the captioned writ petitions claim preferential right under Rule 5(1)(a) of the Kerala Abkari Shops Disposal Rules, 2002 (for short the 'Rules'). According to them, their rightful claim for preferential right in respect of the concerned toddy shops viz., Group No.I in Kunnamangalam excise range in W.P.(C).No.6324 of 2014, Group No.III in Kunnamkulam excise range in W.P.(C).No.6359 of 2014 and Group No.XXI in Kuttanadu excise range in W.P.(C).No.6380 of 2014 was overlooked and they were allotted to the respective 7th respondent. It is in the said circumstances that this writ petition has been filed challenging the W.P.(C).6324/13 & conn. 2 provisional order of allotment which according to the petitioners is nothing but an outcome of illegal denial of their rightful claim for preferential right otherwise available to them under Rule 5(1)(a) of the Rules. The respective additional seventh respondent in these writ petitions contended that the petitioners are not entitled to claim and get preferential right as claimed in respect of the shops concerned. Evidently, the toddy shops mentioned hereinbefore have already been allotted provisionally in favour of the respective additional seventh respondent in these writ petitions. Going by Rule 5(15) of the Rules, no sale made by the officer conducting the sale shall be deemed final as against the Government unless confirmed by the Commissioner of Excise and the Commissioner shall be at liberty to accept or reject any sale for valid reasons to be recorded in writing. Thus, it is evident that the provisional order in order to become final requires confirmation by the Commissioner of Excise by invoking the powers under 5(15) of the Rules. When these writ petitions came up for admission, this W.P.(C).6324/13 & conn. 3 court issued notice to the respondents and granted interim orders restraining the official respondents from confirming the sale effected in respect of the aforementioned shops. When these matters are taken up for consideration today, the learned counsel for the petitioners as also the learned counsel for the party respondents in whose favour the sale was provisionally confirmed, submitted that since the sale is to be confirmed by the first respondent-Excise Commissioner by invoking the power under Rule 5(15) of the Rules, the said respondent may be directed to consider the question of entitlement of the petitioners for preferential right under Rule 5(1)(a) of the Rules before passing orders on the provisional allotment and to pass order under Rule 5(15) subject to such decision.
2. I have heard the learned counsel for the petitioners, learned counsel for party respondents and the learned Government Pleader. Taking note of the aforesaid submissions made on behalf of W.P.(C).6324/13 & conn. 4 the parties, these writ petitions are disposed of as hereunder:-
The Excise Commissioner, the common first respondent in these writ petitions, shall issue notice of hearing to the petitioners as also the party respondents before passing orders invoking the powers under Rule 5(15) of the Rules in respect of the aforementioned shops and pass orders only after considering the question of entitlement of the petitioners for preferential right under Rule 5(1)(a) of the Rules and subject to such decisions. It will be open to the party respondents to raise all their contentions resisting the claim of the petitioners for preferential right under Rule 5(1)(a) of the Rules, before the first respondent. Orders in the matter shall be passed expeditiously, at any rate, within a period of three weeks from the date of receipt of a copy of this judgment.
Sd/-
C.T. RAVIKUMAR
(JUDGE)
spc/
W.P.(C).6324/13 & conn. 5
C.T. RAVIKUMAR, J.
W.P.(C).6324/13 & conn. 6
JUDGMENT
September,2010