George Mathew v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 12TH DAY OF AUGUST 2020 / 21ST SRAVANA, 1942** ## **WP(C).No.8157 OF 2020(T)** ## **PETITIONER:** **GEORGE MATHEW AGED 65 YEARS S/O.MATHAI, PARAPPATTU HOUSE, VETTAMBARA, PINDIMANA VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.** **BY ADVS. SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, TAXES (A) DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM695033.** - **3 THE DEPUTY COMMISSIONER OF EXCISE, ERNAKULAM-682018.** - **4 THE CIRCLE INSPECTOR OF EXCISE, KOTHAMANGALAM, PIN-686691, ERNAKULAM DISTRICT.** - **5 THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, KOTHAMANGALAM, PIN-686691, ERNAKULAM DISTRICT.** - **6 THE DISTRICT COLLECTOR, COLLECTORATE P.O., KAKKANAD, ERNAKULAM, PIN682030.** **R1-6 BY SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-08-2020, THE COURT ON 12-08-2020 DELIVERED THE FOLLOWING:** **WP(C).No.8157 OF 2020(T)** **2** # **R. NARAYANA PISHARADI, J ---------------------------------------------------W.P(C).No.8157 of 2020** ## **-----------------------------------------------------** Dated this the 12[th] day of August 2020 ## **JUDGMENT** ## This writ petition is filed seeking the following reliefs: “i) declare that the petitioner is entitled to get preferential right for the allotment of the toddy shops in group No.IV in Kothamangalam Excise Range for the year 2020-21 as per Rule 5(1)(a) of the Rules 2002 without taking into account the registration of Ext.P2 case as a disqualification subject to final outcome of Crl.M.C No. 745/2017 heard by this Honourable Court on 09.03.2020 and reserved for orders; ii) issue a writ of manadamus or any other appropriate writ, order or direction directing respondents 2 to 4 and 6 to give preferential right under Rule 5(1)(a) of the Kerala Abkari Shops Disposal Rules 2002 without taking into account the registration of Ext.P2 case (Crime No. 9/2017 of Excise Range, Kothamangalam) as a disqualification subject to final outcome of Crl.M.C No. 745/2017 heard by this Honourable Court on 09.03.2020 and reserved for orders in the light of Ext.P3 interim order of this Honourbale Court and iii) grant such other and further relief as this Honourable Court may deem fit and proper in the interest of justice.” **WP(C).No.8157 OF 2020(T)** **3** 2. The facts leading to the filing of this writ petition, as stated therein, are as follows: The petitioner is the licensee of the toddy shops in Group No.IV of the Kothamangalam Excise Range from 2007 onwards. The license was allotted to him for the years 2014-2017 as preferential right as per Rule 5(1)(a) of the Kerala Abkari Shops Disposal Rules, 2002 (hereinafter referred to as 'the Rules'). On 24.02.2010, samples of toddy were taken from the toddy shop T.S.No.15 of Group No.IV of Kothamangalam Excise Range as per Rule 8 of the Rules. One of the samples was sent for chemical analysis. The report of chemical analysis dated 17.06.2010 (Ext.P1) revealed that the sample contained ethyl alcohol by 8.23% by volume which was in excess of the prescribed limit as per Rule 9(2) of the Rules. Consequently, on 20.01.2017, a case was registered against the petitioner as Crime No.9/2017 of the Kothamangalam Excise Range under Sections 56(b) and 57(a) of the Abkari Act as per Ext.P2 crime and occurrence report. Since the aforesaid case was registered against the petitioner in violation of the provisions contained in Rule 8(3) of the Rules, the petitioner filed Crl.M.C.No.745/2017 before this Court for quashing the proceedings against him in the aforesaid case. As per the interim order dated 23.03.2017 (Ext.P3) in Crl.M.C.No.745/2017, this Court stayed all further proceedings against the petitioner based **WP(C).No.8157 OF 2020(T)** **4** on Ext.P2 crime and occurrence report and also directed the State to permit the petitioner to conduct the toddy shops in Group No.IV of the Kothamangalam Excise Range without taking into consideration the registration of the case against him as a disqualification. 3. It is stated in the writ petition that, as per the new Abkari policy of the Government, toddy shops are to be allotted for a period of three years or till the formation of the Toddy Board, whichever is earlier. The allotment/sale of the toddy shops in the Kothamangalam Excise Range was scheduled to be conducted on 18.03.2020. Rule 5 of the Rules deals with granting privilege of vending toddy. As per Rule 5(1)(a) of the Rules, as amended by the notification issued by the Government as S.R.O. No. 201/2020 dated 12.03.2020, while giving privilege, preference shall be given to those licensees who had conducted toddy shops during the year 2019-2020, provided no abkari case is registered against them other than under Section 56 of the Abkari Act. As per the amended Rule 5(1)(a), the petitioner is entitled to get preferential right for conducting toddy shops since he has been conducting the toddy shops in the year 2019-2020. The respondents have told the petitioner that preferential right for allotment of toddy shops will not be granted to him unless and until direction is issued by this Court in that regard. The case registered against the petitioner is **WP(C).No.8157 OF 2020(T)** **5** invalid for the reason that it is registered in violation of the provisions contained under Rule 8(3) of the Rules, after a period of six and a half years of the issue of the chemical analysis report in respect of the sample taken from the toddy shop. Hence the writ petition seeking the reliefs mentioned above. 4. The fourth respondent, who is the Circle Inspector of Excise, Kothamangalam has filed counter affidavit in the writ petition. The crux of the contentions raised in the counter affidavit filed is that registration of the case against the petitioner would disqualify him to get preferential right in the allotment of the toddy shops and that order passed by the court staying the proceedings in the criminal case will not wipe out such disqualification and therefore, the petitioner is not entitled to get any relief in the writ petition. 5. Heard the learned counsel for the petitioner and the learned Senior Government Pleader. 6. Admittedly, the petitioner was the licensee of the toddy shops in Group No.IV of the Kothamangalam Excise Range for the period 2014-2017 and the subsequent period for the years 20172020. **WP(C).No.8157 OF 2020(T)** **6** 7. On 24.02.2010, samples of toddy were taken from the toddy shop T.S.No.15 of Group No.IV of Kothamangalam Excise Range as per Rule 8 of the Rules. One of the samples was sent for chemical analysis. The report of chemical analysis dated 17.06.2010 (Ext.P1) revealed that the sample contained ethyl alcohol of 8.23% by volume which was in excess of the prescribed limit as per Rule 9(2) of the Rules. Consequently, on 20.01.2017, a case was registered against the petitioner as Crime No.9/2017 of the Kothamangalam Excise Range under Sections 56(b) and 57(a) of the Abkari Act as per Ext.P2 crime and occurrence report. 8. The petitioner has filed Crl.M.C. No. 745/2017 before this Court under Section 482 Cr.P.C for quashing the proceedings against him in the case registered as Crime No. 9/2017. Ext.P3 interim order dated 23.03.2017 was passed by this Court in Crl.M.C No. 745/2017 in favour of the petitioner, which reads as follows: “There will be an interim stay of all proceedings pursuant to Annexure-B Crime No.9/2007 of Excise Range, Kothamangalam with a direction to the respondent to permit the 2[nd] petitioner to conduct his toddy shops in group No.4 of Kothamangalam Excise Range without taking into account the registration of **WP(C).No.8157 OF 2020(T)** **7** Annexure-B case as a disqualification pending disposal of the above Crl.M.C” 9. The number of the case mentioned as Crime No. 9/2007 in Ext.P3 order is evidently a mistake. The correct number of the case is Crime No.9/2017. It is on the basis of the aforesaid interim order the preferential right for vending toddy was granted to the petitioner for the period 2017-2020. 10. Rule 5(1)(a) of the Rules, as amended by the notification issued by the Government as S.R.O.No.201/2020 dated 12.03.2020, states that while giving privilege, preference shall be given to those licensees who had conducted the toddy shops during the year 20192020, provided no abkari case is registered against them other than under Section 56 of the Abkari Act. 11. On a bare reading of Rule 5(1)(a) of the Rules, it is evident that preference in the allotment of toddy shops cannot be granted to a person against whom an abkari case is registered other than under Section 56 of the Abkari Act. This provision is very clear. There is no ambiguity in this rule. 12. Admittedly, a case has been registered against the petitioner under Sections 56(b) and 57(a) of the Abkari Act as per Ext.P2 crime and occurrence report, on the ground that the sample of **WP(C).No.8157 OF 2020(T)** **8** toddy collected from one of the toddy shops conducted by the petitioner contained ethyl alcohol in excess of the prescribed strength of 8.1% by volume. The case against the petitioner is registered not only under Section 56(b) of the Abkari Act but also under Section 57(a) of that Act. Therefore, there can be no doubt with regard to the fact that the petitioner is not entitled to get any preferential right to vend toddy as per Rule 5(1)(a) of the Rules. 13. Very recently, in **Saju v. State of Kerala : 2020 (3) KLT 692** , a Division Bench of this Court has held as follows: “Now, coming to question as to who are all entitled to get preference in terms of Rule 5(1) (a) of the Rules, it is evident that conditions revealed therefrom should be satisfied to earn eligibility for preference. Firstly, the person/persons concerned must have conducted the toddy shop during the year 2013-14 and secondly, he should not be a person against whom abkari case other than under section 56 of the Abkari Act is registered. We may hasten to add that on going by the provisions thereunder, even in the case of a licensee who had conducted the shops till 2013-14 and whose licence was cancelled due to registration of an abkari case, he would also become eligible to claim preference, provided he is exonerated by the court subsequently”. **WP(C).No.8157 OF 2020(T)** **9** (emphasis supplied) 14. The main thrust of the contention in the writ petition is that, since the proceedings against the petitioner in the abkari case registered against him as per Ext.P2 crime and occurrence report have been stayed by this Court as per Ext.P3 order, pendency of the case against him cannot be considered as a disqualification for granting preferential right to him in conducting the toddy shops. There is no force in this contention. 15. In **State of Kerala v. Komalam : 2010 (2) KHC 310:** **2010 (2) KLT 190** , a Division Bench of this Court has stated as follows: “Grant of stay of prosecution will not have the effect of exoneration of the persons against whom crime is registered. Since the respondent is a person against whom a crime is registered, he cannot claim preference under Rule 5(1)(a) of the Rules, even if further proceedings in the case are stayed by a Court of law”. 16. Annexure-R1(b) order of the Supreme Court, filed alongwith the counter affidavit of the fourth respondent, shows that the special leave petition filed against the decision in **Komalam** (supra) was dismissed by the Apex Court. **WP(C).No.8157 OF 2020(T)** **10** 17. An order of the court, granting stay of the proceedings in a criminal case, does not mean that the registration of the case will not operate as a bar in granting the right under Rule 5(1)(a) of the Rules. The pendency of an abkari case other than under Section 56 of the Abkari Act is sufficient to disqualify a person from obtaining preferential right to vend toddy. 18. True, this Court had passed an interim order in this writ petition directing the respondents that the pendency of the case registered against the petitioner as Crime No.9/2017 of the Kothamangalam Excise Range shall not be considered as a disqualification for granting him preferential right under Rule 5(1)(a) of the Rules. But, the decision in **Komalam** (supra) had not been brought to the notice of this Court at that time. 19. Further, Crl.M.C. No. 745/2017 filed by the petitioner, for quashing the proceedings against him in the case registered on the basis of Ext.P2 crime and occurrence report, stands allowed today and the proceedings against him in that case have been quashed. Therefore, the reliefs sought in this writ petition have practically become infructuous. **WP(C).No.8157 OF 2020(T)** **11** 20. The discussion above would show that the petitioner is not entitled to get any relief of declaration as prayed for in the writ petition and also the consequential reliefs sought. The writ petition is liable to be dismissed. 21. Consequently, the writ petition is dismissed. No costs. All interim applications pending in the writ petition are dismissed. **Sd/-R. NARAYANA PISHARADI JUDGE** lsn **WP(C).No.8157 OF 2020(T)** **12** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 PHOTOCOPY OF THE CHEMICAL ANALYSIS REPORT DATED 17.06.2010 ISSUED BY THE ASST.CHEMICAL EXAMINER TO GOVT. OF KERALA, KAKKANAD, KOCHI-30.** **EXHIBIT P2 PHOTOCOPY OF THE CRIME AND OCCURRENCE REPORT IN CR.NO.9/2017 REGISTERED BY THE 5TH RESPONDENT.** **EXHIBIT P3 PHOTOCOPY OF THE ORDER DATED 23.03.2017 IN CRL.M.A.NO.993/2017 IN CRL.M.C.NO.745/2017 PASSED BY THIS HON'BLE COURT.** **EXHIBIT P4 PHOTOCOPY OF THE ORDER GO(MS)NO.22/2020/TD DATED 27.02.2020 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P5 PHOTOCOPY OF THE NOTIFICATION, GO(P)NO.36/2020/TD DATED 12.03.2020 ISSUED BY THE GOVERNMENT.** ## **RESPONDENTS EXHIBITS:** **ANNX.R1(a): COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN STATE OF KERALA AND OTHER VS.KOMALAM REPORTED IN 2010(2) KHC 310** **ANNX.R1(b): COPY OF THE JUDGMENT OF THE HONOURABLE APEX COURT IN SLP(C) NO. 9835 OF 2010.** **ANNX.R1(c): COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN RAMANAN V. STATE OF KERALA (2016 (2) KHC 746)** **EXT.R4(a): COPY OF THE PETITION FILED BY THE PETITIONER HEREIN IN CRL.M.C. 745/2017** **EXT.R4(b): COPY OFTHE ORDER DATED 10.03.2017 IN CRL.M.C.NO.6786/2016.** **EXT.R4(C): COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN STATE OF KERALA AND OTHER V.KOMALAM REPORTED IN 2010(2)KHC 310.** **WP(C).No.8157 OF 2020(T)** **13** **EXT.R4(d): COPY OF THE JUDGMENT OF THE HONOURABLE APEX COURT IN SLP(C)NO. 9835 OF 2010.** **TRUE COPY P.A TO JUDGE** ## **LSN**