High Court Kerala High Court

C.C. Prakash vs The District Collector on 13 August, 2008

Kerala High Court
C.C. Prakash vs The District Collector on 13 August, 2008
       

  

  

 
 
  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/-