JUDGMENT
P.R. Raman, J.
1. The petitioner in both the Writ Petition and the Review Petition is the same. The petitioner was granted a licence for conducting toddy shop No. 13 in Changanacherry Excise Range for the period 2002-03. He availed a loan from the 4th respondent. According to him, he also gave some signed blank papers and signed blank cheque leaves towards security of the same. There is some dispute regarding the transaction between the petitioner and the 4th respondent which is not a matter to be resolved in this Writ Petition. However according to the petitioner, the employees of the petitioner’s shop belonging to C.I.T.U. Union are also having some allegiance to the 4th respondent and the employees did not permit the petitioner to enter the shop at a time when the original licence granted for the year 2002-03 was in force. According to him, the licence was taken over by them and understood that it is entrusted with the 4th respondent. Ext. P2 is a petition dated 21.3.2003 filed by the petitioner before the 2nd respondent requesting him to close the toddy shop with immediate effect till 1.4.2003. The petitioner has also submitted a petition before the Sub Inspector of Police, Chingavanam. But neither the Excise Authority nor the Police Authority did take any action. The 4th respondent is also conducting 15 toddy shops in Changanacherry Excise Range and other toddy shops in other Ranges. On the expiry of the licence period for the year 2002-03 the petitioner applied for renewal of licence in accordance with the Abkari Policy for the year 2003-04. Ext. P7 is a copy of the application submitted by the petitioner. At the time of submitting an application for renewal as per the Abkari Policy conditions he has to produce the original licence before the Licencing Authority. So, however, the petitioner could not produce the original and instead he produced a photocopy and applied for duplicate licence to the Assistant Excise Commissioner, who after considering the request made by the petitioner, granted duplicate copy of the licence issued for the year 2000-03 and on that basis granted renewal for the current year 2003-04. This grant of renewal was confirmed by the Excise Commissioner. In the meantime, the petitioner filed O.P. No. 11019/2003 before this Court and it was during the pendency of the Original Petition that renewal of the licence was granted in favour of the petitioner and accordingly he withdrew the Original Petition. Subsequently, the 4th respondent filed W.P.(C) No. 16390/2003 claiming that he was conducting the shop and that the renewal of licence in favour of the petitioner was in violation of the rules and sought to cancel the same. However, he also thought fit to withdraw the Writ Petition by filing and appeal before the Excise Commissioner in the meantime and seeking for a direction to dispose of the said appeal. Accordingly he was permitted to withdraw the Writ Petition and directed that the appeal to be disposed of in accordance with law. Both the petitioner and the 4th respondent were heard in the matter by the Excise Commissioner before whom the 4th respondent had filed the appeal. By Ext. P11 renewal of the licence in favour of the petitioner for the year 2003-04 was cancelled which is impugned in this Writ Petition.
2. Subsequent to the filing of the present Writ Petition and after hearing the matter for some time, the matter stood adjourned for enabling the parties to complete their pleadings. In the meantime the petitioner had filed R.P.No. 617/2003 seeking to review of the judgment passed by this Court directing the Commissioner of Excise to dispose of the appeal filed by the 4th respondent herein as directed in W.P.(C)No. 16390/ 2003. Mainly two contentions are urged: (i) The petitioner in W.P.(C) No. 16390/2003 (4th respondent in the present W.P.(C)) has no locus standi to file any appeal before the Excise Commissioner in a matter regarding the grant of licence in favour of the petitioner in this Writ Petition. (ii) It is also contended that since the Writ Petition was disposed of at the admission stage, the review petitioner was not given an opportunity of being heard. According to him, if there is no jurisdiction for the Excise Commissioner to entertain the appeal and if the petitioner in W.P.(C) No. 16390/2003 is not a person who has got any locus standi, he cannot seek writ of mandamus from this Court and therefore by issuing such a direction there is an error apparent on the face of the record and hence sought to review the judgment. In the Writ Petition his contention is that Ext. P1 order passed by the Excise Commissioner is vitiated for the reason that he cannot exercise any power under the Act for cancellation of the licence issued for the year 2003-04 in so far as the entire factual basis on which the cancellation of the licence is made is relying on certain circumstances said to have been existed at the time when the petitioner was enjoying the benefit of the licence for the period 2002-03. Therefore, whatever it be the illegality if any (assuming so) committed during the previous year in question will not clothe him with jurisdiction to cancel the renewal granted for the year 2003-04. It is also his case that the renewal having been granted by the Assistant Excise Commissioner and confirmed the same, there is no power to cancel the licence on the ground alleged in Ext. P11.
3. According to the 4th respondent, when the transfer by way of sale or otherwise is prohibited by the rules, the petitioner is not entitled to be granted renewal of the licence. According to him, once the licence is not renewed, it will be put public auction and the petitioner can also participate in the same along with others which right he has lost by virtue of the renewal granted in favour of the petitioner. He also submitted that as contemplated under rule the Excise Commissioner can at any point of time suo motu cancel the licence on valid grounds. According to him, the renewal of the licence is only continuation of the previous licence and cannot be treated as a fresh licence and therefore whatever conditions attached with the original licence holds good and if there is any in violation of any of the conditions even the renewed licence can be cancelled in accordance with the rules.
4. The learned Government Pleader appearing for the State submitted that the petitioner was notified by the Commissioner of Excise about the judgment of this Court and to participate in the inquiry and hearing and it is afterwards that he has sought to review the judgment. Hence, there is no merit in the review petition.
5. From the above facts, it can be seen that the petitioner was admittedly a licensee for the previous year 2002-2003. That expired. According to the Abkari Policy for the year 2003-2004 the privilege of vending toddy in favour of the petitioner was extended for a further period of one year on the conditions laid down in G.P.(P)No. 51/203/TD dated 25th March, 2003. A copy of the Government Order was made available by the counsel appearing for the petitioner. Until the expiry of the period of licence issued for the year 2002-03 there was no proceeding whatsoever against the petitioner and the licence granted stood expired. At the time of extending the privilege as per the Abkari Policy for the year 2003-04 the petitioner produced duplicate copy of the original licence issued to him for the year 2002-03 by the Excise Authorities and the Licensing Authority acting on that basis, finding that all other conditions in the aforesaid notification are satisfied, extended the privilege to vend the toddy for the year 2003-04 in favour of the petitioner, which was also confirmed by the Excise Commissioner. It was thereafter that the 4th respondent challenged the privilege granted in favour of the petitioner by filing an Original Petition which was ultimately withdrawn, as he had in the meantime filed an appeal. It was pursuant thereto that the impugned order has been passed by the Excise Commissioner, after hearing the petitioner as well as the 4th respondent. Before adverting to the rival contentions raised in the Original Petition I will consider the review petition first.
6. Review Petition No. 617/2003 is filed seeking to review of the judgment in W.P.(C)No. 16390/2003. That judgment was rendered at the time of admission. Since the petitioner therein sought to withdraw the Original Petition, it was unnecessary to issue notice to other side and the same was disposed of at the admission stage. It was observed in the said judgment that the petitioner therein having invoked his remedy by filing an appeal, there will be a direction to the 2nd respondent to dispose of the same in accordance with law. As such this Court merely directed the Commissioner of Excise to consider Ext.P7 produced along with the I.A. filed later in O.P.No. 16390/2003 and dispose of the same in accordance with law. The petitioner was heard in the matter and he is entitled to raise all the contentions including maintainability of the appeal before the concerned authority. If one of the parties is entitled to raise the question of jurisdiction, the same has to be decided by the authority while disposing the matter. But in this case when the petitioner received notice from the Excise Commissioner, he did not choose to raise any jurisdictional aspect of the matter except to raise the maintainability of the appeal in the argument notes filed by him. Even in the absence of any statutory right of appeal, any person feeling aggrieved by any order passed could file representation before the higher authority and this Court used to direct such representation being considered in accordance with law and dispose of the same. Therefore whether there is any statutory right of appeal as such to the 4th respondent may not be decisive as regards the question of jurisdiction of the Commissioner in the matter of cancellation of the licence is concerned, if it is otherwise shown that the Commissioner has jurisdiction to cancel a licence the order passed in exercise of such jurisdiction. Merely for the reason that it was done at the instance of a party, who according to the petitioner, has no locus standi, will not make the order bad. Further this is a matter concerning the grant of licence and if the order cancelling the licence is valid in law, naturally it will be put in auction or the privilege could be given by taking a lot as the case may be when the 4th respondent also had a chance to participate in such auction. He also gets an opportunity to participate in such bid for getting the privilege of vending toddy in respect of the shop in question. Therefore the 4th respondent in the Original Petition cannot be said to be a total stranger who had no locus standi.
7. In the above circumstances, I do not find that there is any error of law apparent on the face of record. This Court has only directed the Commissioner to dispose of Ext. P7 filed by the petitioner in accordance with law while deciding any issue. Further more, the Commissioner of Excise has disposed of the matter pursuant to the judgment of this Court which become final. That the review petitioner had notice of the judgment at least when he received notice from the Excise Commissioner. Only after filing the Original Petition and after several postings, this petition is filed seeking to review the judgment. For all the above reasons, I do not find any sufficient reason necessitating a review of the judgment. Hence, the review petition is dismissed.
8. Now coming to the Original Petition, the challenge made in O.P. No. 23196/ 2003 is against Ext. P11 order passed by the Commissioner of Excise by which he held that the petitioner violated the licence conditions and hence instead of renewal, the licence is said to be liable to be cancelled and the order passed by the A.E.C. renewing the licence is set aside.
9. From the order Ext. P11 it is clear that the impugned order was passed on the ground that the licence condition is violated. This finding is based on the further finding that the licensee had taken a loan from the 4th respondent pledged his licence as a security for the repayment of the loan which amounted to transferring his right to run the shop in favour of the 4th respondent an act not permitted under the conditions of licence. This is the only ground on which the impugned order is passed. According to the learned counsel for the petitioner, there is no justification whatsoever for arriving at such a finding and the findings arrived at are perverse and without jurisdiction. According to the respondents, being a question of fact, this Court is not liable to be interfered with in proceeding under Article 226 of the Constitution of India. It is true that a finding on question of fact unless the decision is perverse or based on extraneous or irrelevant consideration the jurisdiction under Article 226 of the Constitution may not be exercised. In the present case, according to the petitioner, while he was running the shop for the period 2002-03 the employees of the shop did not permit him to enter the shop which happened about 10 days’ prior to the period of expiry and according to him, they took the original licence and retained and the same, was denied to him and that they are conducting the shop in their own will without permitting the petitioner to do the business. So he filed an application on 21.3.2003 before the Assistant Excise Commissioner, Kottayam, which is produced as Ext. P2 in this Writ Petition. He also requested that the shop be closed with immediate effect, or else he will be put to much hardships and he will not be liable for any offence, if any committed by the employees. From Ext. P2 it can be seen that he requested to close down the shop by the authorities because of the illegality committed by the employees in retaining the licence and not permitting the petitioner to enter the shop. Therefore, at the time of renewal of licence he could not produce the original licence and applied for duplicate licence and issued by the Licensing Authority and got the licence renewed for the period 2003-04. On the other hand, the 4th respondent would contend that the petitioner had borrowed money and he has also conducted the shop as authorised by the petitioner and the original licence is produced by the 4th respondent from his possession and the agreement said to have been executed by the petitioner in favour of the 4th respondent has been relied on by the Commissioner of Excise to draw the inference that there is pledge of the licence in favour of the 4th respondent. According to the petitioner, he admits that a blank signed stamp paper was given to the 4th respondent. Therefore he admits the signature, but contents of the document are disputed. According to him, he has given only a blank paper and the 4th respondent conveniently written something without his knowledge, which is not binding on him. So much so, the fact remains that the petitioner has money dealings with the 4th respondent and he has also given a signed stamp paper towards security. The petitioner would contend that the employees have taken the licence from him and the same was not given to him. The possession of the original licence with the 4th respondent and production of the same before this court would show that the 4th respondent is in possession of the original licence also. The licence is produced Ext. R4(1). But according to the petitioner, even assuming for argument that the licence was in possession of the 4th respondent that will not in any way evidence a pledge of the licence nor would it amount to any transfer. But the question as to whether the petitioner has executed the document and whether there was any pledge of the licence in favour of the 4th respondent is a matter to be decided by a civil court, since admittedly there was some dealings between the parties and to enter a final finding on this aspect will have an adverse effect on mutual right of the parties. However, if there is transfer or assignment of the licence which is prohibited as per the conditions of the licence, then certainly the statutory authority, while considering as to whether the licence is to be cancelled, is entitled to enter a prima facie finding as to whether the licence is liable to be cancelled for the violation of the conditions of the licence. Therefore, it cannot be said that the Commissioner has no jurisdiction to decide this question. However, the finding entered into by him will only be for the limited purpose of deciding the question of violation of the conditions of the licence and will not in any way affect the right of the parties to approach the civil court for an adjudication for the issue if raised in a civil proceedings. As regards the finding arrived at by the Commissioner of Excise is concerned, according to him, there is a pledge in favour of the 4th respondent. Whatever be the transaction between the parties, if the petitioner had allowed the 4th respondent to run the shop in his own right it is sufficient indication of the violation of the conditions of the licence. It is also an admitted case that there was money dealings between the 4th respondent and the petitioner that the petitioner has given a blank signed stamp paper to the 4th respondent. Further, the 4th respondent has produced a stock register for the toddy in the shop, which is Ext. R4(2). Therefore, the stock books maintained in the toddy shop are now in possession of the 4th respondent. Even though the petitioner had sent a letter to the Assistant Excise Commissioner complaining that the employees are not permitting to enter, there is no whisper that the licence is with the 4th respondent. It is an improbable conduct of a toddy shop owner to leave the matter there without taking further steps for getting back the possession of the shop, in case it is allegedly or forcibly taken possession of by his employees. On the other hand, his request itself was to stop the business by the Authorities. Therefore it can be seen that he has no interest in continuing the business or to evict the employees rather he himself has requested to close the shop. Coupled with the fact and other attending circumstances, as I already indicated above, it is not possible to interfere with the finding of fact entered into by the Excise Commissioner as the said finding cannot be said to be perverse or on extraneous conditions warranting any such interference.
10. The next question is assuming that there was any such violation of the conditions will it clothe the Commissioner with jurisdiction to cancel or set aside the renewal already granted in favour of the petitioner and whether it is sustainable in law.
11. According to the learned counsel for the petitioner, Section 26 of the Abkari Act provides that a licence could be cancelled only if any of the conditions mentioned in Section 26(b) of the Act is satisfied and does not empower the Commissioner to cancel or suspend a licence for any of the reasons other than mentioned in Section 26(a) to (e). According to him the ground on which the licence now cancelled is not one contemplated under Section 26 of the Abkari Act. I am unable to agree. As per Section 26(e) of the Abkari Act, the Commissioner may cancel or suspend any licence or permit granted under this Act, if the conditions of the licence or permit provide for such cancellation or suspension at will. So violation of the conditions of the licence is also a ground available for cancellation. Further more, Section 26 only enables the Commissioner to cancel or suspend the licence for any of the reasons mentioned therein; but does not prohibit the cancellation of the licence, if it is otherwise authorised by the rule. But the ground stated for cancellation whether really available for cancellation of the renewal of the licence granted is the question arising for consideration. In other words, the question to be considered is whether on the grounds stated in the impugned order, renewal already granted could be cancelled.
12. In this connection, I may advert to some of the provisions of the rule and also the conditions attached for renewal of the licence as per the existing Abkari Policy. In exercise of the powers under Sections 18A and 29 of the Abkari Act, the Government has framed rules, viz., Kerala Abkari Shops Disposal Rules, 2002 which is still in force as it is not superseded by subsequent rules. The relevant rule in this context is Rule 5 which deals with the grant of privilege of vending toddy. Rule 5(3) provides that no person is eligible for the privilege of any shop for any of the grounds mentioned in 1, 2 and 3 therein. Rule 5(3) is extracted hereunder:-
"3. No (individual) is eligible for the privilege of any shop if he, (i) is charged with an offence relating to illicit liquor or prosecution proceedings are pending against such individual before a court of law. (ii) is convicted under any Abkari offence or any other Criminal offence and sentenced to imprisonment for more than three years after 1st April, 1992. (iii) is a defaulter of Abkari arrears, Sales Tax arrears or any other arrears due to the Kerala Toddy Workers Welfare Fund or the Kerala Abkari Workers Welfare Fund unless he produces from the Circle Inspector of Excise, Sales Tax Officer, the Authority of the said Welfare Fund Board or any other officer authorised in this behalf as the case may be a certificate to the effect that no dues are outstanding against him or that he has remitted before the date of sale of shop 50% of arrears pending against him as on the date of sale notification. (iv) is liable to pay contribution to the Toddy Workers Welfare Fund and/or the Kerala Abkari Welfare Fund as the case may be unless he produces from the Welfare Fund Inspector concerned a certificate to the effect that he has remitted before the date of sale of shop the arrears of contributions payable up to the 31st day of December of the preceding year. (v) is a public servant in the service of Government. (vi) is below 18 years. (vii) has already been granted with the privilege of another toddy shop in the State in the Abkari year in question".
13. It can be seen that as per the Abkari Policy, the privilege of vending toddy shop for each year was sold by auction and on the expiry of the Abkari year, the shop is again put to auction. However, the Government brought out a change in the policy and as per the Abkari policy for the year 2003-04 it was decided to extend the period for one more year to the existing licensees on the specific conditions mentioned in Government Notification in G.O. (P) No. 51/2003/TD dated 25.3.200. As per the conditions contained in the said notification, no licensee will be eligible for the extension of privilege granted was suspended or cancelled and not revalidated in the year 2002-2003. Admittedly the privilege granted in favour of the petitioner for the year 2002-03 was not suspended or cancelled and as such he is eligible for extension. Since the petitioner’s privilege for conducting the shop for the year 2002-03 having expired without any such suspension or cancellation as the case may be, and when he has satisfied the order conditions for extension of the privilege, then naturally it cannot be said that the renewal granted in his favour is in any way wrong or illegal. According to the impugned order, the only ground on which renewal is set aside is that licence for the year 2002-03 was transferred, assigned or pledged as the case may be by him. That may be a reason for suspension/cancellation of the licence before expiry of the period 2002-2003. Since if there is no suspension or cancellation of the licence for the year 2002-03, then he cannot be disentitled for the renewal of the licence as per the conditions contained in the G.O. the relevant clause of which is extracted hereunder:-
“5. No licence is eligible for the extension of privilege of Toddy shops, if:-
(i) the privilege granted was suspended or cancelled and not revalidated in the year 2002-03; (ii) any Abkari Offence other than an offence falling under Section 56(b) of Abkari Act is booked against him; (iii) is qualified under any of the provisions of the Kerala Abkari Shops Disposal Rules, 2002 to hold such licence". 14. It is not the case of the respondents that the petitioner's licence was cancelled at any point of time. If that be so, a ground if at all available for cancellation or suspension having been not invoked at any point of time and in the absence of any such action taken before expiry of the licence period cannot be invoked as a ground for cancellation of the renewed licence. Further more, in this case the Commissioner of Excise has already confirmed the renewal of the licence and it is afterwards that he invokes the power to cancel the same. In this connection Rule 5(19) of the Kerala Abkari Shops Disposal Rules, 2002 reads thus: "The Commissioner of Excise may cancel any licence issued under these Rules at any time on valid grounds. Any resale or disposal otherwise, ordered shall always, be at the risk and loss of the original purchaser who shall not have any claim to any gain received by Government accruing from such disposal. Further, the original purchaser shall have no claim for refund of any amount he had paid to Government or any amount that had been forfeited from him."
15. The expression valid ‘grounds’ occurring in the above rule is necessarily to be understood as a ground as auhorised by any of the provisions of the Act or the Rules and not dehors the provisions. So long as there is no violation of the conditions of the renewed licence by the petitioner, cancellation of the existing licence in his favour will not be an act which could be said to be a valid ‘ground’ as contemplated. The reasons mentioned in the order impugned if at all are relevant only for the period of licence for the year 2002-03 before its expiry and not for 2003-04. After the renewal of licence, he is now conducting the business. Therefore, if only there is a transfer or assignment after such renewal, there is any violation of the conditions of the renewed licence and which would give rise to a valid ground for cancellation of the same. In other words, a ground if assuming it existed for cancellation of the licence for the year 2002-03 will not be a valid ground for cancellation of the existing licence. As could be seen from the conditions governing the extension of the licence as per the G.O. above that it is only the act of cancellation or suspension which disqualifies a person to get extension of his licence. In other words, only if there is a suspension or cancellation for any of the violation of the conditions of the licence or the rules as the case may be, could it be a ground for non-renewal or extension of the licence. Therefore, if the authority has failed to suspend or cancel the licence before its expiry, then those reasons cannot be based for cancellation of the renewal licence. The ineligibility for getting a renewal licence arises only when the previous licence is already cancelled or suspended.
In such circumstances, Ext. P11 is quashed and Writ Petition is allowed.