George Varghese v. P.C. Bose and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN THURSDAY, THE 29TH DAY OF NOVEMBER 2012/8TH AGRAHAYANA 1934 WP(C).No. 28319 of 2012 (L) --------------------------- PETITIONER: ------------- GOERGE VARGHESE, AGED 37 YEARS S/O.GEORGE THOMAS, ILLATHUPARAMBIL ARUMANOOR P.O.DIST.KOTTAYAM. REPRESENTED BY POWER OF ATTORNEY TOM GEORGE BROTHER OF GEORGE VARGHESE. BY ADVS.SRI.K.REGHU KOTTAPPURAM SRI.M.MUKESH RESPONDENTS: -------------- 1. P.C. BOSE AGED 44 YEARS, S/O.CHELLAPPAN, PARAYANKARIYIL HOUSE ATHIRAMPUZHA P.O., 686 562 KOTTAYAM DISTRICT. 2. ROY K.THOMAS, AGED 44 YEARS, S/O.K.K.THOMAS, KODOOR KANJIRAM HOUSE, ETTUMANOOR P.O., 686 631 KOTTAYAM DISTRICT 3. MRS.BHARATHI SREEDHARAN, AGED 74 YEAS, W/O.LATE SREEDGHARAN NADUPURAYIL HOUSE, KADAPPOOR KARA, KANAKKARI VILLAGE KOTTAYAM DISTRICT 686 632. 4. THE DEPUTY COMMISSIONER OF EXCISE, KOTTAYAM DIVISION, KOTTAYAM 686 001. 5. THE COMMISSIONER OF EXCISE, GOVT. OF KERALA, THIRUVANANTHAPURAM 695 001. BY GOVERNMENT PLEADER SMT.C.K.SHERIN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC 28319/2012 ## PETITIONER(S) EXHIBITS - EXT.P-1 A TRUE COPY IST AND LAST PAGE OF LICENCE NO.366/2010-11 EXT.P-2 A TRUE COPY OF POWER OF ATTORNEY DATED 16-7-2010. EXT.P-3 A TRUE COPY OF ORDER DATED 7-9-2012 IN WPC NO.20561/2012 EXT.P-4 A TRUE COPY OF ORDER NO.X-A6-23121/2012 DATED 10-9-2012 EXT.P-5 A TRUE COPY PETITION DATED 12-10-2012. EXT.P-6 A TRUE COPY OF ORDER NO.XA6A-23121/2012 DATED 27.10.2012 EXT.P-7 A TRUE COPY OF THE JUDGEMENT IN WPC 26051/2002 DATED 7-11-2012. - EXT.P-8 A TRUE COPY OF JUDGEMENT DATED 7-11-2011 IN WPC 26018/2012 - EXT.P-9 A TRUE COPY OF HEARING NOTE DATED 19-11-2012. EXT.P-10 A TRUE COPY OF STATEMENT DATED 20-11-2012 SUBMITTED BEFORE COMMISSIONER. - EXT.P-11 A TRUE COPY OF ORDER NO.XA6-23121/2012 DATED 23-11-2012 OF COMMISSIONER. - EXT.P-12 TRUE COPY OF FALSE AFFIDAVIT DATED 11-8-2011 SUBMITTED BY BHARATHI SREEDHARAN. - EXT.P-13 A TRUE COPY OF LETTER DATED 17-8-2012 SENT BY CIRCLE INSPECTOR OF EXCISE - EXT.P-14 A TRUE COPY OF COUNTER AFFIDAVIT FILED BY CIRCLE INSPECTOR IN WPC 26051/2012. RESPONDENTS' EXHIBITS NIL JJ /TRUE COPY/ P.S.TO JUDGE ## **K. SURENDRA MOHAN, J. -----------------------------------------------------------W.P(C) NO: 28319 OF 2012 ----------------------------------------------------------Dated this the 29[th] November, 2012.** ## **JUDGMENT** The petitioner has filed this writ petition challenging Ext.P11 order passed by the fifth respondent. The petitioner was a licencee for toddy shop Nos: 8 to 12 in Group No: II of Ettumanoor range. He was allotted the said privilege jointly along with respondents 1 to 3 for the period from 1.8.2012 to 31.3.2013. The shops were allotted to them on preferential basis, they having been licencees for the said shops for previous periods. Though the shops were allotted to the petitioner and respondents 1 to 3 as stated above they did not execute a permanent agreement as stipulated by the rules. A temporary agreement was executed on 27-7-2012 and on the basis of the said agreement, a temporary licence was issued to the petitioner and others for the conduct of the shops. In the above circumstances the petitioner herein went abroad, according to him to visit his wife who is working there. Since the petitioner was not available to execute the permanent agreement a request was made by the other licencees for extension of the time stipulated for the execution of such permanent agreement. As per WPC 28319/2012 2 Ext.P4 order dated 10-9-2012, two months time was granted by the fifth respondent. The other three licencees, respondents 1 to 3 were made liable on their request, for all the liabilities, both criminal and civil, for the conduct of the said toddy shops, in the interregnum. The parties were all informed that if no permanent agreement was executed within the extended time limit the privilege would be cancelled. Pursuant to the above order, the other licencees executed the necessary agreements and were permitted to conduct the shops in question. 2. While so, the petitioner submitted a complaint to the fifth respondent alleging that the other licencees were selling spurious toddy in the toddy shops. On the basis of the said complaint the licence issued to them was cancelled. Respondents 1 to 3 challenged the said order before this Court in WPC 20561/2012. The said writ petition was finally heard and disposed of by this Court by Ext.P7 judgment. It is noticed in the said judgment that the complaint of the petitioner was under investigation. The result of such investigation was not yet available. Immediately on receipt of the complaint, the shops were put under departmental management. Therefore, the said arrangement was directed to be continued and the fifth respondent was directed to complete the WPC 28319/2012 3 investigation into the complaint and to pass necessary orders in the matter after ascertaining the genuineness of the complaint made. Accordingly, Ext.P11 order has been passed by the fifth respondent. As per Ext.P11 order, it has been found that the complaint made by the petitioner was baseless. Since the petitioner was unwilling to execute a permanent agreement as stipulated by the rules, the privilege granted to him has also been cancelled. The petitioner has filed this writ petition aggrieved by the said order. 3. Adv. Reghu Kottappuram appears for the petitioner. According to the counsel, the privilege granted to the petitioner and others, is as a group and is not severable. Therefore, if the petitioner is held disentitled to claim such privilege, the same disqualification would apply to the other licencees also. It is also contended that there are no grounds for cancelling the privilege that was being enjoyed by the petitioner. Since he does not suffer from any of the disqualifications stipulated by Rule 5(3) of the Kerala Abkari Shops Disposal Rules, 2002 (hereinafter referred to as the 'Rules' for short), the cancellation of his privilege alone is submitted to be without any justification whatsoever. 4. The learned Govt. Pleader opposes the contentions of the counsel for the petitioner. The Govt. Pleader places reliance on the WPC 28319/2012 4 Kerala Abkari Shops Disposal (Amendment) Rules, 2010 by which, Rule 5(3) has been amended by adding the sub Rule 23, which reads as follows:- “23. Where the privilege of a group of shops is purchased by a group of individuals and in the case where one or more licensees abandon the shops, the other privilege licensees shall be allowed to conduct the shops for the remaining period.” In view of the above provision, it is contended that Rule 5 invests the authorities with sufficient power to split up the privilege and to cancel the privilege of the petitioner alone. It is pointed out that Ext.P11 has been issued in the peculiar circumstances of the present case and that respondents 1 to 3 have been permitted to conduct the shops only for the remaining period for which the auction was conducted. It is also pointed out that sub rule 4 of Rule 5 stipulates that “no applicant will be allowed to purchase the privilege as an agent.” The petitioner was found to be conducting his toddy shop through his power of attorney, it is contended. 5. I have heard the counsel appearing for the respective parties at length. There is no dispute that the petitioner is and has been unwilling to execute a permanent agreement as stipulated by the Rules. The auction for the shops was conducted on WPC 28319/2012 5 27-7-2012 in which, the privilege was confirmed in favour of the petitioner as well as respondents 1 to 3 jointly. On the said date itself, a temporary agreement was executed, as stipulated by the Rules by all the four persons. However, the petitioner appears to have gone abroad thereafter, without executing the permanent agreement. It was in the said circumstances that time was sought by the other licencees for execution of the permanent agreement. As per Ext.P4, the time was extended by two months on the specific condition that if the permanent agreement was not executed, the privilege would be cancelled. Thereafter the other three licencees have executed permanent agreements fulfilling all the stipulations as per the Rules. They have also undertaken all the liabilities, both civil and criminal, that may arise from the conduct of the toddy shops for the period up to 31-3-2013. The above facts have been noticed in ExtP7 judgment. It was in the said circumstances that Ext.P6 order cancelling the licence was issued. The said order was set aside by Ext.P7 judgment and the fifth respondent was directed to consider the matter afresh after hearing the parties. Accordingly Ext.P11 order has been passed. 6. In Ext.P11, it has been found that the complaint of the petitioner against the other licencees, respondents 1 to 3 was WPC 28319/2012 6 baseless. It is also noticed in Ext.P11 that samples of toddy from the shops were got analysed on a number of occasions and that there are absolutely no grounds to justify the complaints made. The petitioner's complaint is regarding the cancellation of his privilege alone. It is to be noted that the petitioner is a person who has participated in the auction and accepted the privilege by executing a temporary agreement on 27-7-2012. Thereafter he has refused to execute the permanent agreement as stipulated by the Rules. It is evident that there are inter se disputes between the petitioner and respondents 1 to 3. However, the method adopted by the petitioner for settling such disputes cannot be accepted. I notice that this writ petition has been filed by the petitioner through his power of attorney, thereby indicating that he is still abroad. The fifth respondent has found in Ext.P11 that the petitioner cannot be permitted to conduct the toddy shops through his power of attorney. In view of the said default on the part of the petitioner it cannot be said that cancellation of his privilege is unjustified. A person who claims a privilege can claim the same only subject to the conditions that he would have to satisfy, before such privilege could be claimed. 7. According to the counsel for the petitioner, Section 26(b) WPC 28319/2012 7 of The Abkari Act, 1077, hereinafter referred to as the the 'Act' for short, entitles him to conduct a toddy shop through his power of attorney. A perusal of the said provision does not give any such indication. The said provision is one conferring a power to cancel a licence, on the fifth respondent. The licencee has been made liable for the acts of not only himself but also his servant or anyone else, acting on his behalf. The petitioner cannot claim a right to conduct a toddy shop through his power of attorney holder, relying on the said provision. The next contention of the counsel for the petitioner is that the privilege being one that was being jointly enjoyed by the petitioner and respondents 1 to 3 cannot be cancelled in relation to the petitioner alone. Reliance is also placed on the decision reported in **Rarichan George v. Commissioner of Excise {2008(2) KLT 726}** . In the said case, a Single Bench of this Court had to consider whether cancellation of licence to a group in respect of another range was justified, for the act of one of the licencees in selling spurious toddy. Pursuant to a complaint regarding such sale, the Excise Commissioner cancelled the licences in favour of all the persons in respect of both the ranges. This Court held that the licences being one that was granted to the group, the Excise Commissioner was within his powers to have WPC 28319/2012 8 cancelled the licences in respect of both the ranges. However, Thottathil B.Radhakrishnan, J has observed as follows in concluding the said judgment at page 728: “During the course of this writ petition, the respondents had notified the re-auction of the shops. Though, Ext.P3 licence has gone in terms of Ext.P7, the incriminating element of having violated S.8(1) of the Act, cannot be reasonably fastened on the petitioners, particularly, when the respondents do not have a case of any seizure of arrack from any of the six shops that compose Group II. Therefore, there would be no legal infirmity or impediment in extending the petitioners, any preference in the re-auction, either individually or otherwise, at any rate, without the junction of the fourth respondent. Subject to what is stated in this paragraph, this writ petition fails and the same is dismissed accordingly. No costs.” The above passage is an answer to the contention of the petitioner that the privilege cannot be cancelled in respect of one person alone. I am in respectful agreement with the above view. The petitioner has committed default in terms of the conditions of auction by refusing to execute the permanent agreement after having participated in the auction and accepted the privilege by executing a temporary agreement. The order of the fifth WPC 28319/2012 9 respondent therefore is perfectly justified in the circumstances. After having committed default in performing his obligations under the Rules, the petitioner cannot claim that he is entitled to the benefit of the privilege . For the above reasons I am not inclined to admit this writ petition. The same is therefore dismissed. Sd/K. SURENDRA MOHAN Judge jj /True copy/ P.S.to Judge WPC 28319/2012 10