IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 5837 of 2008(T)
1. P.I.AVIRAH, (RETIRED HEADMASTER,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE COMMISSIONER OF EXCISE,
3. THE ASSISTANT EXCISE COMMISSIONER,
4. BABY CHACKO,
For Petitioner :SRI.S.P.ARAVINDAKSHAN PILLAY
For Respondent :SRI.M.G.KARTHIKEYAN
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :04/03/2008
O R D E R
THOTTATHIL B.RADHAKRISHNAN , J.
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W.P.(C) No.5837 of 2008(T)
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Dated this the 4th day of March, 2008
JUDGMENT
The 4th respondent was issued Ext.R4(a) licence on
18.5.2007 to conduct a Toddy Shop. The petitioner, a retired
teacher and recipient of Ext.P1, challenges the licence on
different grounds. He relies on Rule 7(15) of the Kerala Abkari
Shop Disposal Rules, 2002 and Section 18A(2) of the Abkari Act
to state that the issuance of licence on 18.5.2007 that is beyond
the period of one year is not only without authority but in
violation of the laws. He further states that the premises from
which the Toddy is being sold is in a building which is not
approved by the Panchayat authorities. He further states that
the sale is not only unauthorised but within the prohibited
distance from certain institutions.
2. Referring to Rule 5(16) of the Rules, it is pointed out
by the learned Government Pleader that the requirements of
execution of agreement etc. have to be done within a reasonable
W.P.(C) No.5837/2008/T -2-
time and that the agreement has been executed within a
reasonable time and hence there is no violation of the Rules. The
learned counsel appearing for the 4th respondent submits that
Rule 7(15) is only part of the general conditions applicable to
licences and the provision in Rule 7(15) that shops not opened
within one month from the date of receipt of confirmation of sale
of shop shall be liable to be resold or disposed otherwise at the
risk and loss of the licencees is only a liability which the
government may enforce and is not one that will result in the
licence becoming void. The general conditions of licence which
are incorporated in the licence issued and signed by the licencee
is characterized by the learned counsel for the 4th respondent as
not in terms, mandatory nature, in the sense that it does not
result in any statutory cancellation of the licence and that if the
government does not move to enforce the liability of being resold
or disposed otherwise, a citizen cannot insist on the enforcement
of that Rule. In that sense Rule 7(15) is characterized as only
directing and not mandatory.
3. Even if I were to resolve all the issues raised in this
writ petition, the counter affidavit of the 4th respondent contains
W.P.(C) No.5837/2008/T -3-
the averment that he had done his part of the requirement in
terms of the rules, however, that the issuance of licence was
delayed because the files were processed by the department after
considering the objections and such delay cannot be put against
the 4th respondent.
4. The learned counsel for the petitioner has referred to
the judgment of this Court in Balakrishnan Nair v. State of
Kerala (1996 (1) KLT 14) to argue that a prescription as to law
binds not only private citizens but also the statutory authorities,
who are bound to enforce the law. He, accordingly, urges that
even if the department was in default, the licence is void.
5. A plain reading of Rule 7(15) appears to suggest that
the said part of the general conditions of licence gives the
Government the power to have the shop resold or disposed of
otherwise. If it is not opened within one month from the date of
receipt of confirmation of sale of that shop, such resale or
disposal could be at the risk and loss of licencees. Rule 5(16)
referred to by the learned Government Pleader which primarily
governs the grant of privilege of vending toddy enjoins the
condition that the original rental paid by the licencee shall be
W.P.(C) No.5837/2008/T -4-
forfeited and the group resold or otherwise disposed of if the
purchaser fails to comply with the requirements of executing the
agreement and taking out necessary licence within a reasonable
time. The time lag in the case cannot be treated as unreasonable
since Ext.R4(a) licence is issued on 18.5.2007. Rule 5(16) is also
designed in such a way that the result of enforcement of that rule
is forfeiture and the result of that rule does not provide for an
automatic cessation of the licence by efflux of time. That rule
also does not require the Government or statutory authority to
apply forfeiture on the expiry of one month but leaves it to the
wisdom of the Abkari officers to decide whether the licence has
been availed and an agreement executed within a reasonable
time.
6. As of now, the considerations of the aforesaid
questions would exist, in my considered view, is only academic
because, by the efflux of time, all that remains is the expiry of
the period of licence for this year, which is co-terminus with the
expiry of the current Abkari year. It is stated that the
Government has already released the policy document in relation
to the Abkari policy for the next year and it does not provide for
W.P.(C) No.5837/2008/T -5-
any renewal of any existing licence.
7. Having regard to the aforesaid, ends of justice will
remain satisfied if the competent authority takes care of the
petitioner’s complaint regarding the identity of the land and
building and his objections to the conduct of the toddy shop in
the said site and in the building in question.
In the result, while refusing to interfere with the impugned
licence, it is directed that the objections of the petitioner to the
housing of a toddy shop in the site in question shall be
considered if and when any shop is proposed to be licenced
from the said site in the coming Abkari year.
Writ petition ordered accordingly.
THOTTATHIL B.RADHAKRISHNAN,
JUDGE
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