Kerala High Court
K.K Krishnan vs State Of Kerala on 14 February, 2014
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
TUESDAY, THE 4TH DAY OF MARCH 2014/13TH PHALGUNA, 1935
WP(C).No. 5556 of 2014 (T)
---------------------------
PETITIONER(S):
--------------
K.K KRISHNAN, AGED 52 YEARS
S/O. KADUTHAA, KAKKATTIL HOUSE, VADAYAMPADI
PUTHENCRUZ.P.O., ERNAKULAM-682 308.
BY ADVS.SRI.PAUL K.VARGHESE
SRI.NISHIL.P.S.
RESPONDENT(S):
--------------
1. STATE OF KERALA
REPRESENTED BY SECRETARY(TAXES A DEPARTMENT)
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-01.
2. THE COMMISSIONER OF EXCISE,
COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM-01.
3. THE DISTRICT COLLECTOR,
KAKKANAD, CIVIL STATION, ERNAKULAM
COCHIN-682030.
4. THE DEPUTY COMMISSIONER OF EXCISE,
OPPOSITE SARITHA THEATRE, ERNAKULAM 682031.
5. EXCISE CIRCLE INSPECTOR,
MAMALA RANGE, ERNAKULAM 682308.
6. MAMALA RANGE TODDY WORKERS WELFARE CO-OERATIVE SANGAM
REPRESENTED BY ITS SECRETARY, PUTHENCRUZ
ERNAKULAM-682308.
7. THE PRESIDENT, MAMALA RANGE,
TODDY WORKERS WELFARE CO-OPERATIVE SANGHAM
PUTHENCRUZ, PIN-682 308.
R1 TO R5 BY SR. GOVERNMENT PLEADER SRI.FAYAZ.M.A.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04-03-2014, ALONG WITH WP(C) NO.6080 OF 2014, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
WP(C).No. 5556 of 2014 (T)
---------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-----------------------
P1. A TRUE COPY OF THE CONFORMATION OF LICENSE ISSUED BY THE EXCISE
DEPUTY COMMISSIONER ERNAKULAM TO THE PETITIONER DATED
14-2-2014.
P2. A TRUE COPY OF THE RECEIPT SHOWING THE REMITTANCE OF
RS.20,7600/- BY THE PETITIONER TOWARDS ADVANCE SALARIES OF THE
WORKERS THROUGH GOVERNMENT TREASURY ERNAKULAM DATED 10-2-2014
P3. A TRUE COPY OF THE RECEIPT SHOWING THE REMITTANCE OF
RS.17,500/- BY THE PETITIONER BEFORE THE GOVERNMENT TREASURY
ERNAKULAM DATED 10-2-2014.
P4. A TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE
ERNAKULAM DISTRICT COLLECTOR, ERNAKULAM DATED 17-2-14.
P5. A TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE
THE 6TH RESPONDENT DATED 17-2-2014.
P6. A TRUE COPY OF THE POSTAL RECEIPTS SHOWING ISSUANCE OF THE P4
AND EXT.P5 DATED 17-2-14.
RESPONDENT(S)' EXHIBITS : NIL
-----------------------
/TRUE COPY/
P. A. TO JUDGE
Pn
C.K. ABDUL REHIM, J.
------------------------------------
W.P.(C). Nos. 5556 & 6080 of 2014
---------------------------------------------------
Dated this the 4th day of March, 2014
JUDGMENT
WP(C) No. 5556/2014 is filed seeking direction against respondents 3 to 7 therein to permit the petitioner to conduct the Toddy Shops in the buildings owned by the 6th respondent, based on Ext.P1 to P4. As per Ext.P1 the 4th respondent had informed the petitioner about the confirmation granted by the 2nd respondent, with respect to the auction conducted for assignment of the right to vend toddy in T.S. Nos.7,6,10,12,34 of Group 3 of Mamala Range, for the period from 10.02.2014 to 31.03.2014. The petitioner was requested to execute the agreement under the relevant Rules and also to submit applications for establishment of the shops in question. It is evident from Ext.P1 that the right was assigned for an amount of `17,110/-.
2. Case of the petitioner is that, on the basis of Ext.P1 he had paid a sum of `2,07,600/- towards advance salary to the employees, as evident from Ext.P2 Treasury Receipt and also remitted a sum of `17,500/- towards W.P.(C). Nos. 5556 & 6080 of 2014 -2- rental, as evident from Ext.P3 receipt. The petitioner had also remitted a sum of `85,000/- towards contributions payable to the Toddy Workers Welfare Fund. According to the petitioner he had invested a total amount of `3,50,000/- for conduct of the Toddy Shops based on Ext.P1 confirmation of sale. It is stated that the Toddy Shops were functioning in the buildings owned by the 6th respondent and the petitioner cannot change the buildings, but can only conduct the Toddy Shops in the very same buildings. The respondents 6 and 7 ought to have granted/handed over the existing buildings to make it convenient to the petitioner to conduct the Toddy Shops. But they refused to permit the petitioner to conduct the Toddy Shops in the said buildings. Therefore the petitioner had submitted Ext.P4 and P5 representations before respondents 3 and 6. Since no action was taken on those representations, this writ petition is filed.
3. From Ext.P1 it is evident that the petitioner had bid in auction the right to vend toddy in 5 shops coming W.P.(C). Nos. 5556 & 6080 of 2014 -3- within Group No.3, for the period from 10.02.2014 to 31.03.2014, for an amount of `17,110/-, and the said auction was confirmed by the 2nd respondent. In Ext.P1 the 4th respondent had requested the petitioner to execute the agreement and to submit application for establishment of the shops. As per the relevant Rules, a license for vending toddy in a particular shop will be issued only on the petitioner executing the agreement and on submitting application for establishment of the shop in a particular building. The license will be issued permitting conduct of the Toddy Shop in the particular building, after the Excise authorities become satisfied about suitability of the building. The petitioner is yet to be granted with license for conduct of the Toddy Shops after completion of such formalities.
4. In the case at hand, the petitioner had raised complaint to the District Collector about non-granting of the buildings owned by the 6th respondent, for conduct of the toddy shops. Whether the respondents 6 and 7 are at an obligation to grant the buildings to the petitioner for W.P.(C). Nos. 5556 & 6080 of 2014 -4- conduct of Toddy Shops, is a matter which cannot be looked into within the authority or competence of the District Collector or the Excise authorities. Making available buildings suitable for establishment of the Toddy Shops is the look out of the petitioner, who had auctioned the right. Neither the District Collector nor the Excise authorities can compel the respondents 6 and 7 to hand over the buildings to the petitioner. That being the position, the relief sought for in WP(C) No.5556/2014 to the extent of directing respondents 3 to 5 to make facilities to the petitioner for conduct of the Toddy Shops in the buildings owned by respondents 6 and 7, cannot be granted. This court in exercise of power vested under Article 226 cannot also issue any direction to respondents 6 and 7 in this regard.
5. WP(C) No. 6080/2014 is filed seeking direction to the Excise authorities to grant license for conduct of the above said Toddy Shops to the petitioner, based on Ext.P8 guidelines, by allowing Ext.P9 application. The petitioner is seeking assignment of the right to conduct the shops for W.P.(C). Nos. 5556 & 6080 of 2014 -5- the period from 1st April 2014 onwards, on the basis that he has got privilege for assignment with respect to the year 2014-15. Ext.P8 is the guidelines to be followed with respect to sale of Toddy Shops for 3 years period, from 2014 to 2017. Clause 5 of Ext.P8 guidelines prescribes that while giving privilege for conduct of Toddy Shops for the said year, preference shall be given to those licensees who conducted Toddy Shops during the year 2013-14, provided no Abkari case is registered against them, other than under Section 56 of the Abkari Act. Evidently, the petitioner is claiming the privilege on the basis of the confirmation of sale issued in favour of him for conduct of the Toddy Shops in question for the period from 10.02.2014 to 31.03.2014. It is clear from the facts enumerated as above that, for conduct of the Toddy Shops the petitioner had not executed any agreement, nor had he established the shops in question. It cannot be contended that the petitioner had conducted the Toddy Shops in question during the year 2013-14.
6. Contention of the petitioner is that the W.P.(C). Nos. 5556 & 6080 of 2014 -6- prescribed format of the license contains a clause to the effect that, Toddy Shops for which confirmation of auction was granted will be re-auctioned at the risk and cost of the licensee in cases in which the shops were not opened within 30 days of such confirmation or if it is remained closed without sale for a period of more than 30 days. On the basis of the said clause it is contended that the petitioner has got 30 days time from the date of confirmation of the sale for opening the shops. Since the intimation regarding the date of confirmation was issued on 14.02.2014, the petitioner has got time till 14.03.2014 to establish the shop, is the contention. On that basis it is contended that the claim for privilege need to be considered.
7. But it is pertinent to note that, the clause in the license mentioned above deals with the steps to be taken for re-auctioning of the shops at the risk and cost of the licensee. Even assuming that the petitioner is entitled for any specific period from the date of confirmation of the sale, for establishment of the shops, no privilege will be W.P.(C). Nos. 5556 & 6080 of 2014 -7- accrued on the petitioner unless he had actually conducted the shop for any period during the year 2013- 14, as provided under Ext.P8. Therefore this court do not find any basis for the claim for privilege, with respect to the right for venting Toddy in the shops in question for the period from 1st April 2014 onwards.
8. A further relief is sought for in WP(C) No.6080/2014 for directing the respondents 2 to 4 to consider and dispose of Ext.P9 application. Learned Government Pleader submitted that the 5th respondent (in WP(C) No. 6080/2014) had already considered the said request and it was rejected.
9. Under the above mentioned circumstances, none of the reliefs sought for in these writ petitions deserve merits. Consequently both the writ petitions are hereby dismissed.
Sd/-
C.K. ABDUL REHIM, JUDGE /True copy/ P. A. to Judge Pn