IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 2003 of 2006(A)
1. V.V.SWAMYNADHAN,
... Petitioner
Vs
1. THE CIRCLE INSPECTOR OF POLICE,
... Respondent
2. THE WELFARE FUND INSPECTOR,
3. THE DISTRICT COLLECTOR,
4. THE ASST. EXCISE COMMISSIONER,
5. THE EXCISE COMMISSIONER,
For Petitioner :SRI.C.C.THOMAS (SR.)
For Respondent :SRI.A.K.JOHN, SC, KTWWF BOARD
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :17/03/2009
O R D E R
K.BALAKRISHNAN NAIR &
M.L.JOSEPH FRANCIS, JJ.
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W.A. NO.2003 & 2040 OF 2006
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Dated 17th March, 2009.
JUDGMENT
Balakrishnan Nair, J.
W.A.No.2003/2006:
The writ petitioner is the appellant. The respondents herein were the
respondents in the Writ Petition. The point that arises for decision in this
case is regarding the correctness of the interpretation to Rule 5(2)(a) of the
Kerala Abkari Shops Disposal Rules, 2002 (hereinafter referred to as “the
Rules”), as it stood in the year 2002-03.
2. The brief facts of the case are the following: The appellant had run
six toddy shops during the year 1996-97 and three shops each during the
years 1997-98, 1998-99, 1999-2000 and 2000-01. During the year 2002-03,
the Government framed a policy to give preference to persons, who run
toddy shops earlier, in the matter of grant of licence to run toddy shops.
The norm prescribed for the same was that the applicant should have run
not more than three toddy shops in any of the abkari years between 1996-97
WA NOS.2003 & 2040/06 2
and 2000-01. The appellant thinking that he is a person qualified in terms
of the Rules, submitted his application. It was accompanied by Ext.P1
certificate issued by the 1st respondent Circle Inspector of Excise, Palakkad,
stating that the appellant has conducted toddy shop Nos.117, 118 and 119
of Palakkad Excise Range during the year 1999-2000. In the application
submitted by him, there was a query in column 13 thereof, calling upon him
to state whether he has conducted not more than three shops in any year
between 1996 and 2001. The appellant answered “yes”. He also mentioned
the toddy shops he run in Palakkad Range. The auction of toddy shops for
the financial year 2002-03 was held on 23.4.2002. The appellant was the
successful bidder for T.S.No.37 of Chittur Excise Range. Immediately
thereafter, the provisional allotment of that shop in his favour was
cancelled by the Excise Commissioner by Ext.P5 order dated 26.4.2002.
Not only the provisional grant in his favour was cancelled, but the annual
rental of Rs. Four lakhs deposited by him was ordered to be confiscated.
The aggrieved appellant challenged that order before this Court. The said
Original Petition was disposed of by Ext.P6 judgment. The learned Single
Judge did not interfere with the cancellation of the grant, but quashed the
direction to confiscate the kisth amount paid by him. Though the appellant
challenged that judgment by filing W.A.No.1497/2002, the said decision
WA NOS.2003 & 2040/06 3
was affirmed by the Division Bench by Ext.P7 judgment. Later, the State
filed an appeal, challenging Ext.P6 judgment to the extent it interferes with
the forfeiture of the kisth amount paid by the appellant. That appeal was
allowed and the 5th respondent Excise Commissioner was directed to
reconsider the matter with notice to the appellant. The Excise
Commissioner, after hearing the appellant, passed fresh orders, a copy of
which is produced as Ext.P9. The Commissioner found that the appellant
mis-represented regarding the running of more than three shops during the
year 1996-97 and therefore, the action taken to confiscate the kisth amount
was found correct. The writ petition was filed challenging Ext.P9 and also
seeking consequential reliefs.
3. The learned Single Judge called for the records, perused the same
and found that the answer given by the appellant in column 13 of his
application, a specimen of which is produced as Ext.P4, was “yes”. It was
also found that the appellant had mentioned about two shops in Palakkad
Range, run by him. Finding that the above action of the appellant amounted
to suppression of material facts, the Writ Petition was dismissed. Hence
this appeal.
4. The learned counsel for the appellant Mr.M.G.Karthikeyan
submitted that the rule which provided for preference was vague. It was not
WA NOS.2003 & 2040/06 4
clear whether the running of more than three shops in any one of the years
between 1996 and 2001 will act as a disqualification. In other words, the
rule did not give fair warning to a person of reasonable intelligence. The
competent authority also certified that the appellant is eligible, as evident
from Ext.P1. Therefore, there was no deliberate suppression or mis-
representation. So, the confiscation of the kisth amount paid by the
appellant is unjustified. Therefore, the learned counsel prayed for refund of
the confiscated kisth amount.
5. The learned Government Pleader, on the other hand, supported the
judgment of the learned Single Judge. According to her, there is admitted
non-disclosure of the correct facts by the appellant and so, the action of the
competent authority was fully justified. Therefore, there is nothing wrong
with the decision of the learned Single Judge, upholding the same, it was
contended.
6. The relevant rule as it stood then reads as follows:
“5. The Grant of privilege of vending Toddy Shops shall
be subject to the following conditions, namely:–
(1) Not more than one toddy shop shall be sold to any one
individual.
(2)(a) While giving privilege, preference shall be given to
those applicants who had previous experience in conducting
Toddy Shops not exceeding three, in any particular year
between the period 1996 to 2001
WA NOS.2003 & 2040/06 5
(b) The Circle Inspector of Excise of an Excise Circle
shall certify such eligibility after verifying the records of Toddy
Workers Welfare Fund Board.”
Rule 5(17) as it stood then reads as follows:
“(17) If it is found at any stage that any purchaser of
privilege had suppressed facts in his application as to his
eligibility including preference or produced fake documents and
obtained the privilege declared or confirmed in his name or
obtained any licence granted in his name, the licence issued to
him, if any, will be cancelled and the whole of the amount paid
buy him towards the annual rental of the shop, shall be forfeited
to Government and the shop re-sold or otherwise disposed of.”
Going by Rule 5(2) as it stood then, it is clear that if a person has run not
more than three shops in any of the years between 1996 and 2001, he will be
eligible. The rule does not warn a person of ordinary intelligence that if he
has run more than three shops in any one of the above years, it will be a
disqualification. In view of the vagueness in Rule 5(2), we feel that it is not
just or proper to confiscate the kisth amount paid by the appellant. It is one
of the fundamental principles of rule of law that all statutory provisions
having penal consequences should be defined with precision and notified in
advance, so that they will give fair warning and a person of reasonable
intelligence can avoid violating them. If the law is vague, a person may
violate it unwittingly and later he may be accused ex post facto that what he
has committed was an offence. Such a law impermissibly delegates to the
WA NOS.2003 & 2040/06 6
police or the Judge to decide from case to case what is an offence and what
is not an offence. Such legal provisions are ultra vires for vagueness and
therefore, unenforceable. See the opinion of Douglas, J in Krishian v. Bd.
of Regents [(1967) 385 U.S. 589], which is as follows:
” …. a law fails to meet the requirements of the Due
Process Clause if it is so vague and standardless that it leaves
the public uncertain as to the conduct it prohibits or leaves
judges and jurors free to decide, without any legally fixed
standards, what is prohibited and what is not in each particular
case …. . Certainly one of the basic purposes of the Due
Process Clause has always been to protect a person against
having the Government to impose burdens upon him except in
accordance with the valid laws of the land. Implicit in this
constitutional safeguard is the promise that the law must be one
that carries an understandable meaning with legal standards
that courts must enforce.”
Also see the observations of our Apex Court in Kartar Singh v. State of
Punjab [(1994)3 SCC 569]. At para 130, it is stated as follows:
“It is the basic principle of legal jurisprudence that an
enactment is void for vagueness if its prohibitions are not
clearly defined. Vague laws offend several important values. It
is insisted or emphasised that laws should give the person of
ordinary intelligence a reasonable opportunity to know what is
WA NOS.2003 & 2040/06 7
prohibited, so that he may act accordingly. Vague laws may trap
the innocent by not providing fair warning. Such a law
impermissibly delegates basic policy matters to policemen and
also judges for resolution on an ad hoc and subjective basis,
with the attendant dangers of arbitrary and discriminatory
application. More so uncertain and undefined words deployed
inevitably lead citizens to ‘steer far wider of the unlawful
zone … than if the boundaries of the forbidden areas were
clearly marked’. “
7. In view of the above principles, we have no doubt in our mind
that the provisions of Rule 5(2) of the Rules, as it stood then and which
were repealed subsequently, are vague and therefore, its infringement
cannot lead to the disastrous consequence of forfeiture of the kisth amount
paid by the licensee. Accordingly, the Writ Appeal is allowed. The
judgment of the learned Single Judge is reversed. Ext.P9 is quashed. The
respondents 1, 4 and 5 shall refund the kisth amount confiscated, to the
appellant within two months from the date of production of a copy of this
judgment.
W.A.No.2040/2006:
8. The point raised in this appeal is squarely covered by the judgment
in W.A.No.2003/2006. Accordingly, this Writ Appeal is also allowed. The
judgment of the learned Single Judge is reversed and Ext.P9 is quashed.
WA NOS.2003 & 2040/06 8
The respondents 1, 4 and 5 are directed to refund the confiscated kisth
amount to the appellant within two months from the date of production of a
copy of this judgment.
K.BALAKRISHNAN NAIR, JUDGE.
M.L.JOSEPH FRANCIS, JUDGE.
nm/