IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 78 of 2011(H)
1. K.V.SAJEEV, AGED 40 YEARS,
... Petitioner
Vs
1. STATE OF KERALA, REP.BY SECRETARY,
... Respondent
2. THE COMMISSIONER OF EXCISE,
3. THE DEPUTY COMMISSIONER OF EXCISE,
4. THE EXCISE INSPECTOR,
For Petitioner :SRI.C.C.THOMAS (SR.)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :13/01/2011
O R D E R
C.T.RAVIKUMAR, J.
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W.P.(C)Nos.78, 109, 110, 122, 136,
463, 477 of 2011
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Dated 13th January, 2011
JUDGMENT
The petitioners are running toddy shops in different Groups
under Cherpu Excise Range/Thrissur Excise Range of Thrissur Division.
They have been running the toddy shops under licence for the past
several years. Pursuant to the Malappuram hooch tragedy the
petitioners were orally directed to close down their respective toddy
shops. According to the petitioners, thereafter they have re-opened their
respective toddy shops and later, owing to compelling circumstances
arising out of the demands made from the part of the workers in their
respective toddy shops, they were compelled to close the respective
shops on 25.11.2010. It is their contention that subsequently they have
reopened the same on 20.12.2010. The petitioners are aggrieved by
Order No.XA2-31598/2010 dated 28.12.2010 (Ext.P1 in all these writ
petitions). The impugned orders have been passed under Section 26(b)
of the Abkari Act (for short `the Act’) read with Rule 7(15) of the Kerala
Abkari Shops Disposal Rules, 2002 (for short `the Rules’). As per the
impugned orders, after cancelling the licence with respect to the toddy
shops run by the petitioners the Deputy Commissioner of Excise,
WP(C).No.78/2011 & connected cases 2
Thrissur was directed to conduct resale of the toddy shops belonging to
the petitioners and further directed to take steps to place the shops
under Department Management Rules till the toddy shops are sold in
order to protect the livelihood of the employees. A statement has been
filed on behalf of the third respondent in these writ petitions.
2. I have heard the learned Senior Counsel appearing for the
petitioners and also the learned Government Pleader.
3. In view of the indisputable position obtained in this case, I
do not think it necessary to delve into the facts and contentions any
further at this stage. There cannot be any dispute with respect to the
fact that the inevitable impact of the impugned orders is that the
petitioners would lose their preferential right guaranteed under Rule 5(a)
of the Rules. There are other civil consequences as well flowing from the
impugned orders. Despite such a situation, admittedly, the impugned
orders were passed without putting the petitioners on notice. There is
nothing in the statement filed on behalf of the third respondent to
suggest that the impugned orders were passed with notice to the
petitioners.
4. As noticed hereinbefore, the consistent case of the
petitioners is that they have closed down their respective toddy shops on
WP(C).No.78/2011 & connected cases 3
25.11.2010 and thereafter reopened the same on 20.12.2010. The
verity of their contentions have to be looked into by the concerned
competent authority as the very application of the above mentioned
provisions would depend upon the outcome of such a fact finding
process. Further, it is evident from the impugned orders that after
cancelling the licence issued to the petitioners, based on which they were
running the toddy shops, it was ordered to conduct resale of the
concerned toddy shops. Since the impugned orders are passed in total
disregard to the principle of Audi altrem partem and indisputable position
that adverse civil consequences flow from the impugned orders, I am
inclined to interfere with the impugned orders viz., Ext.P1 in all these
writ petitions. Accordingly, Ext.P1 in all these writ petitions are set
aside. There will be a consequential direction to the second respondent
as hereunder:-
It will be open to the second respondent to take appropriate
action, in case the said authority thinks it fit to do so, on appreciation of
the factual aspects involved in this case, in accordance with law. The
learned Government Pleader submitted that pursuant to Ext.P1 orders
the toddy shops in question are being run under the Department
Management Rules in order to protect the livelihood of the employees.
WP(C).No.78/2011 & connected cases 4
However, the learned Senior Counsel appearing for the petitioners
refuted the same and submitted that the shops are being run by them
and not under the Department Management Rules and that, in fact, the
toddy shops in question are now remaining closed pursuant to Ext.P1
orders. Therefore, in case the shops in question in all these writ
petitions are being run under the Department Management Rules, the
said position shall continue to be so for a period of 10 days. At the
same time, if the shops are remaining closed on account of the impugned
orders, the second respondent shall permit the petitioners to reopen the
same and to conduct the business in accordance with the conditions in
the licence issued to the petitioners. As observed earlier, it will be open
to the second respondent to proceed with the matter in accordance with
law, in case he thinks it fit to take appropriate action in accordance with
law. However, it is made clear that any such action shall be done strictly
adhering to the principles of natural justice.
All the writ petitions are disposed of accordingly.
Sd/-
C.T.RAVIKUMAR
Judge
TKS