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2007 DIGILAW 812 (KER)

Rarichan George v. Commissioner Of Excise

2007-12-01

THOTTATHIL B.RADHAKRISHNAN

body2007
JUDGMENT Thottathil B. Radhakrishnan, J. 1. The privilege to vend toddy in six shops forming Group II of Kattappana Excise Range was bid by a group of individuals, namely, the petitioners and the fourth respondent. Ext.P-3 licence was issued in their names. The fourth respondent was also one among those in another group of individuals to whom the privilege to vend toddy in Group III of that range was licensed, following the auction. Crime Nos. 61/2007 and 62/2007 were registered against the fourth respondent for offences punishable under Section 8(2) of the Abkari Act, 1077, hereinafter, referred to as, the Act', on the allegation of violation of Section 8(1) in relation to two shops in Group III. On the basis of that, the first respondent Commissioner of Excise has cancelled Ext.P-3 licence, in relation to Group II, as per the impugned Ext.P-7. 2. In support of the writ petition, two alternate contentions are raised. The first is that the group of individuals, in terms of Rule 3(1) of the Kerala Abkari Shops Disposal Rules, 2002, hereinafter, referred to as, the Rules', is a separate legal entity or a juristic person, and therefore, any violation of the law by the fourth respondent, in the course of his activity as a licensee in Group III cannot attract the liability for cancellation of licence of Group II, which is granted to the group of individuals consisting of the petitioners and the fourth respondent. Alternatively, it is contended that even if the group of individuals for the purpose of the said rule is only a collection of individuals without having the stains of a juristic person, collectively, he disqualification incurred by one member, namely, the fourth respondent herein, cannot affect the right of the other members to hold the licence, since, in such a situation, each member has to be treated as a separate licence holder under the Rules. 3. 3. A counter-affidavit is placed contending that the concept of "group" in the Rules following their amendment, as per the Kerala Abkari Shops Disposal (Amendment) Rules, 2007, is that, the groups are formed not for getting the privilege but are meant only for the disposal of the shops in groups and that the liability of all individuals in a group is joint, and such joint liability takes away the right of the petitioners also, in terms of Rules 5(3) and 5(4) of the Rules, to run the toddy shop in Group II on the ground referable to commissions and omissions of the fourth respondent, in relation to Group III. 4. Section 26 of the Act provides the power to the Commissioner to cancel any licence or permit granted under the Act, on different counts including any breach, by the holder of such licence, of any of the terms and conditions of such licence or permit. Clause 38 among the general conditions in Ext. P-3 licence provides that the licensee shall obey all abkari laws including rules and laws governing abkari revenue, as well as those laws that may be brought into force to regulate the field. Clauses 31 and 32 of those general conditions further provide that, if licensee violates any of the conditions of the Rules or terms of licence, the licence shall he liable for cancellation and such cancellation will be without prejudice to prosecution and other provisions in the abkari laws. Section 8(1) of the Act contains the prohibition regarding arrack. Obviously, therefore, a violation of that prohibition imposed by law, by the fourth respondent, amounts to breach of the terms of Ext.P-3 licence in relation to Group II of Kattappana Excise Range, though, he is alleged to have committed the offence punishable under Section 8(2) of the Act, in relation to two shops in Group III. This is simply because he is an offender and an offender is one so, wherever he is. The fourth respondent, by the violation of Section 8 (1) of the Act, has violated the terms of Ext.P-3. 5. Ext.P-3 licence is a conferment of a privilege to vend. The term of the grant, as per Ext.P-3, is indisputable, that it is jointly in favour of the petitioners and the fourth respondent. The fourth respondent, by the violation of Section 8 (1) of the Act, has violated the terms of Ext.P-3. 5. Ext.P-3 licence is a conferment of a privilege to vend. The term of the grant, as per Ext.P-3, is indisputable, that it is jointly in favour of the petitioners and the fourth respondent. The question whether, they constitute a juristic person collectively or is only an association of individuals is of no consequence because, in exercising power under Section 26 of the Act, what the Commissioner may do is to cancel the licence. Therefore, the liability for cancellation of a licence is not severable and the licence cannot be dissected to segregate it to be partly in favour of each individual who joined to be the group of individuals for the purpose of Rule 3(1) of the Rules as amended in 2007. The contentions of the petitioners challenging the cancellation of Ext.P-3 licence, therefore, fail. 6. The petitioners' further case that Ext.P-4 is an agreement between the petitioners and the fourth respondent, whereby, they have divided among themselves the liabilities and responsibilities, as also the light to run the different shops; the first petitioner taking shops 5 and 9, the second petitioner taking shops 8 and 19 and the fourth petitioner taking shops 7 and 10 m Group II and that therefore the petitioners are entitled to sustain Ext.P-3 licence in so far as it relates to their shops also, does not stand. That private agreement between the petitioners and the fourth respondent, to regulate their business, is wholly irrelevant and not binding on the Government. During the course of this writ petition, the respondents had notified the re-auction of the shops. Though, Ext.P-3 licence has gone in terms of Ext.P-7, the incriminating element of having violated Section 8(1) of the Act, cannot he reasonably fastened on the petitioners, particularly, when the respondents do not have a case of any seizure of arrack from any of the six shops that compose Group II. Therefore, there would be no legal infirmity or impediment in extending the petitioners, any preference in the re-auction, either individually or otherwise, at any rate, without the junction of the fourth respondent. Subject to what is stated in this paragraph, this writ petition fails and the same is dismissed accordingly. No costs.