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2014 DIGILAW 201 (KER)

V. R. Ramesh Kumar v. Excise Commissioner

2014-03-04

C.T.RAVIKUMAR

body2014
Judgment 1. Petitioner was the licensee of Toddy Shop No. 57 under Group No. XV of Thrithala Excise Range in Palakkad District for the year 2002-2003, 2003-2004 and 2005-2006. While so, Crime No.36 of 2005 of Mankara Police Station was registered against the petitioner under section 55(a) of the Kerala Abkari Act and his license was cancelled. Subsequently, as per Ext.P1 judgment dated 22.9.2010 in S.C.No.168 of 2010 of the Court of Additional Sessions Judge Adhoc No.I, Palakkad arising from the aforesaid crime, the petitioner was acquitted. In such circumstances, he submitted Ext.P3 application before the fourth respondent claiming preference under Rule 5(1)(a) of the Kerala Abkari Shops Disposal Rules, 2002 (for short the 'Rules'). That application was rejected as per Ext.P5 relying on G.O. (P).No.33/2014/TD dated 22.02.2014 published in SRO No.151/2014. The learned counsel for the petitioner submitted that the said G.O. is absolutely inapplicable in the case of the petitioner and at any rate, the said G.O. should not have been relied on for rejecting the claim of the petitioner for preference in terms of Rule 5(1)(a) of the Rules. The contention of the petitioner is that as per the said G.O. dated 22.02.2014, no amendment was brought to the second limb of Rule 5 (1)(a) of the Rules. 2. I have heard the learned counsel for the petitioner and the learned Government Pleader. In the context of the aforesaid contention of the petitioner it is only appropriate to refer to Rule 5(1) (a) of the Rules and the same reads thus:- “5. The grant of privilege of vending Toddy shall be subject to the following conditions, namely:- (1)(a) While giving privilege, preference shall be given to those licensees who has conducted toddy shops during the preceding three years consecutively from [2006-07, 2007- 08 and 2008-09] provided no Abkari case is registered against him other than under section 56 of the Abkari Act. The licensees who has conducted the shops during [200203 and subsequent years] and whose licences cancelled due to registration of Abkari cases and subsequently exonerated by the Courts and those Licensees who could not complete the preceding three years on account of the closure of shops shall also be given preference.” 3. There is no case for respondents 1 to 4 that as per G.O dated 22.02.2014, an amendment was brought to the latter limb of Rule 5(1)(a) of the Rules. There is no case for respondents 1 to 4 that as per G.O dated 22.02.2014, an amendment was brought to the latter limb of Rule 5(1)(a) of the Rules. A perusal of the said G.O would reveal that an amendment was brought in only in the opening sentence of Rule 5 (1)(a) of the Rules and that too, only with respect to the figures and symbols 2011-2012 and the same was substituted as 2013-2014'. In other words, incontestably, even after the said amendment the condition for grant of privilege of vending toddy in respect of those licensees who had conducted the shops during 2002-03 and subsequent years and whose licenses were cancelled due to registration of abkari cases falling under latter limb of Rule 5(1)(a) of the Rules and subsequently exonerated by the courts remains as such without any change. In such circumstances, I am of the view that the reasons in Ext.P5 viz., registration of an abkari case and consequential cancellation of the license should not have been assigned as a reason for rejecting his claim for preferential right under Rule 5(1)(a) of the Rules owing to his acquittal as per Ext.P1 judgment. In the circumstances, the said rejection was based on a non-existent ground and therefore, the petitioner's claim for preference calls for a fresh consideration. Accordingly, Ext.P5 is set aside. Consequently, there will be a further direction to the fourth respondent to restore Ext.P3 application and consider the claim of the petitioner for preference in terms of Rule 5(1)(a) of the Rules and pass appropriate orders thereon taking into account whether the petitioner satisfies the requisite conditions for preference in terms of the latter limb of Rule 5(1)(a) of the Rules. Till such consideration, the respondents shall not confirm the sale of Toddy Shop No.57 under group XV of Thrithala Excise Range in Palakkad District even if it is already conducted. Needless to say that the question whether a fresh sale is to be effected would depend upon the outcome of such consideration. Disposed of accordingly.