IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 21289 of 2008(H)
1. C.C. PRAKASH,
... Petitioner
Vs
1. THE DISTRICT COLLECTOR,
... Respondent
2. THE ASSISTANT EXCISE COMMISSIONER,
3. EXCISE CIRLCE INSPECTOR,
4. THE VILLAGE OFFICER,
For Petitioner :SRI.M.V.BOSE
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :13/08/2008
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) 21289 of 2008
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Dated: AUGUST 13, 2008
JUDGMENT
The challenge in this writ petition is against
Ext.P5.
2. Petitioner submits that the licence in respect of
toddy shop Nos.64, 65, 66, 67 and 68 of Group No.XII of
Cherthala Excise Range for the period from 1.4.2008 to
31.3.2009 were recommended to be granted in his favour by
Ext.P1 dated 30.3.2008. This writ petition concerns only
toddy shop No.67 and in so far as that shop is concerned, it
is the case of the petitioner that the building where the
shop is located, is the same building where the shop was
functioning in the previous year when it was licensed to
another licensee.
3. Petitioner contends that in respect of shop
No.67, though licence has not been issued, in respect of all
other shops mentioned above, licences have been issued
W.P.(C) 21289 of 2008 2
and those licences which were issued in May 2008 are
produced as Ext.P14 series. It is his case that on the
strength of Ext.P1, though formal licence was not issued, he
had commenced business from 1.4.2008 with knowledge
and consent of the authorities. This contention of the
petitioner is sought to be supported by placing reliance on
Ext.P15, the register maintained by the petitioner under
Rule 7(20) of the Abkari Shops Disposal Rules, 2002. The
register contains the endorsements made by the Circle
inspector of Excise, Cherthala, on 24.4.2008, 17.5.2008 and
10.6.2008. From these endorsements which carry the
signature of the Circle inspector of Excise, it is clear that
the shop in question was functioning as contended by the
petitioner and that this was with the full knowledge of the
officials.
4. Trouble arose when Ext.P5 order was issued by
the 2nd respondent ordering closure of the shop. Ext.P5
was not addressed to the petitioner and was also not issued
to him. However, when the same was implemented by
W.P.(C) 21289 of 2008 3
closure of TS No.67, according to him, he invoked the
provisions of the Right to Information Act and obtained a
copy of this document. It is also not in dispute that before
Ext.P5 was issued, petitioner was not issued any notice
either which is presumably for the reason that licence was
not issued. On a perusal of Ext.P5, petitioner came to
know that Ext.P5 was passed on the basis of Ext.P6 order
dated 10.3.2008 passed by the Munsiff’s Court, Cherthala in
I.A.No.2539/2007 in OS 615/2007. Evidently petitioner
was not a party to the suit and that order was passed long
prior to 1.4.2008.
5. Now the only question that needs to be
considered is whether, before issuing Ext.P5 on 17.6.2008,
ordering closure of TS No.67, notice ought to have been
given to the petitioner, he being the person in whose favour
the licence was ordered to be granted.
6. According to the learned Government Pleader,
licence was not granted to the petitioner and that even an
application in that behalf was also not made as required
W.P.(C) 21289 of 2008 4
under Rule 15 of the Abkari Disposal of Shops Rules 2002.
Therefore, it is argued that since the petitioner was not a
licensee, he was not entitled to notice when Ext.P5 was
issued.
7. It is true that the learned Government Pleader is
perfectly justified in her submission that the petitioner has
not been issued the licence so far. But then, the fact
remains that going by the statutory records maintained by
the petitioner, which carries the endorsements of none
other than the jurisdictional Circle Inspector of Excise, viz.
Ext.P15, shop No.67 allotted to the petitioner was
functioning as contended by the petitioner. If that be so,
although even under the provisions of the Abkari Act, a
person is entitled to run the shop only after licence is
issued in his favour, the Department has accepted and
recognised the fact that the petitioner was authorisedly
running the shop, although licence was not issued in his
favour.
8. Once that factual position is accepted by the
W.P.(C) 21289 of 2008 5
Department also, in my view, a notice and an opportunity of
hearing should not have been denied to him for the only
technical reason that licence in the proper form was not
issued in his favour In my view, by reason of Ext.P5, the
valuable right of the petitioner to continue to run the shop
has been affected and for that reason the order is bad for
violation of the principles of natural justice.
9. Accordingly I quash Ext.P5 and direct that the
2nd respondent shall issue notice to the petitioner, hear his
objections and pass fresh orders, as expeditiously as
possible, and at any rate within four weeks of receipt of a
copy of this judgment.
Writ petition is disposed of as above.
ANTONY DOMINIC
JUDGE
mt/-