GOPALAKRISHNAN v. STATE OF KERALA AND OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **TUESDAY, THE 25TH DAY OF AUGUST 2020 / 3RD BHADRA, 1942** ## **WP(C).No.10140 OF 2020(N)** ## **PETITIONER:** **GOPALAKRISHNAN AGED 60 YEARS S/O.RAJAPPAN, PULIMOOTTIL, COLONY NO.25, RAMANKARY P.O., MAMBUZHAKKARI, KUTTANAD, ALAPPUZHA DISTRICT, PIN CODE-689 595.** **BY ADVS. SRI.M.T.SURESHKUMAR SRI.R.RENJITH SMT.MANJUSHA K SRI.DARSAN SOMANATH** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE SECRETARY (ADDL.CHIEF SECRETARY),**| ||**DEPARTMENT OF TAX-EXCISE,**| ||**GOVERNMENT SECRETARIATE,**| ||**THIRUVANANTHAPURAM, PIN-695 001.**| |**2**|**THE EXCISE COMMISSIONER,**| ||**EXCISE COMMISSIONERATE, VIKAS BHAVAN P.O.,**| ||**NANDAVANAM, THIRUVANANTHAPURAM-695 033.**| |**3**|**THE DEPUTY EXCISE COMMISSIONER,**| ||**EXCISE DIVISION OFFICE, EXCISE COMPLEX,**| ||**IRON BRIDGE P.O., NEAR GENERAL HOSPITAL,**| ||**ALAPPUZHA-688 011.**| |**4**|**THE CIRCLE INSPECTOR OF EXCISE,**| ||**EXCISE CIRCLE OFFICE, KUTTANAD RANGE,**| ||**RAMANKARY P.O., ALAPPUZHA-688 011.**| |**5**|**E.P.SALIM,**| ||**S/O.PADMANABHAN, ELAVASSERIL HOUSE, MUTTAR P.O.,**| ||**MUTTAR, ALAPPUZHA DISTRICT-689 574.**| ||**R1-4 BY GOVERNMENT PLEADER SMT.MABLE C. KURIAN**| ||**R5 BY ADV. SRI.M.G.KARTHIKEYAN**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J.** ## **= = = = = = = = = = = = = = = = = = W.P.(C) No.10140 of 2020 = = = = = = = = = = = = = = = = = = Dated this the 25[th] day of August, 2020** ## **JUDGMENT** The petitioner seeks privilege in the matter of vending toddy for the year 2020-21 in relation to shops in Group XII of Kuttanadu Excise Range. 2. Heard. 3. Rule 5(1)(a) of the Kerala Abkari Shops Disposal Rules, 2002 as amended (as per SRO No.201/2020) reads thus:- _“_ _**The Grant of privilege of vending Toddy**_ _**shall be subject to the following conditions namely.-** (1)(a) While giving privilege, preference_ _shall be given to those licensees who had conducted toddy shops during the year 20192020, provided no Abkari case is registered against him other than under section 56 of the Abkari Act. The licensees who have conducted the shops during the year 2019-2020 and whose licences cancelled due to registration of Abkari cases and subsequently exonerated by the Court.”_ W.P.(C) No.10140 of 2020 :- 2 :- 4. As per the amended provision, while granting privilege, preference shall be given to those licensees who have conducted toddy shops during the period 2019-20 subject to the condition that no Abkari case was registered against him other than under Section 56 of the Abkari Act. Licencees for the year 2019-20 whose licence were cancelled consequent on the registration of Abkari cases but were subsequently exonerated by court are also eligible for preference. Noticeably, the 2[nd] sentence, as amended, is incomplete in so far as it failed to include the words, “shall be given preference”. 5. Going by the provision, it is the sine qua non that the person who claims preference must have conducted toddy shop under a licence, during the period 2019-20. It does not matter even if he was unable to conduct the shop for the entire period of 2019-20 due to cancellation of licence consequent to the registration of Abkari case provided, he was exonerated subsequently. It is necessary that he must have conducted the shop during the period W.P.(C) No.10140 of 2020 :- 3 :- 2019-20, irrespective of the duration, to enable him to claim preference. 6. The petitioner was a licensee for the shops in Group-XII of Kuttanadu Excise Range as per the sale held on 18.02.2010. Since then he was conducting the shops. However, the licence granted to him was cancelled on 18.04.2018 consequent on the registration of crime under Section 57(a), 56(b) of the Abkari Act. On 31.10.2019 as is evidenced by Ext.P3, the order in CMP 3909/2018 in CC 462/2018, the petitioner was discharged. However, the petitioner was not a licensee during the period 2019-20 and he had not conducted the shops for any duration during the said period. Therefore, going by the rule as amended, the petitioner is not entitled for privilege. 7. The learned counsel relying on the judgments of this Court in _**Ramesh Kumar V.R. v. Excise Commissioner, Trivandrum and Ors. [2014 2 KLT 308]**_ and _**Shaji v. Circle Inspector of Excise and Others [2016 (3) KLT 22]**_ contend that when the licensee whose license was cancelled on W.P.(C) No.10140 of 2020 :- 4 :- registration of an Abkari case is exonerated by the court, he becomes entitled for preferential right irrespective of as to who continued with the conduct of the shop for the remaining period. The judgment in Shaji's case (supra), was interfered with by a Division Bench in WA 1009/2016. In the said case, going by the Rule as it then stood, it was held that, to claim preference, necessarily the licensee should have conducted shop during the period 2013-14 as was mandated under the Rule. The Division Bench in paragraph 4 of the judgment held thus:- _“In so far as the rules amended as per 2014 Amendment are concerned, a licensee, who had conducted the shop during 2013-14 and whose licence was cancelled due to registration of abkari cases and subsequently exonerated by courts, would be eligible for preference provided he could not complete the year 2013-14 on account of closure of shop. The first inexcusable ingredient to enjoy the benefit of this provision is that the person concerned ought to have been a licensee who had conducted the shop during any_ W.P.(C) No.10140 of 2020 :- 5 :- _portion or part of the abkari year 2013-14. If this basic fact is not satisfied, other two limbs which follow that condition would be of no avail to such a person. This is the situation which stares at the face of the petitioners since it is not their case; nor could it be; that the petitioners had conducted the shop in question at least for a day during the abkari year 2013-14. This is for the simple reason that long before 2013-14 they had incurred the disqualification referable to the abkari case booked on 19.1.2012 and the consequential cancellation of licence which situation stood reversed by the order of acquittal handed down as per Ext.P1 only on 6.8.2015.”_ 8. The very same reasoning and result should follow in the case at hand also since, as noticed, the petitioner had not been a licensee conducting the shop for any duration during the period 201920, which is a mandatory requirement to claim preference for the period 2020-21. 9. Though the writ petitioner raises challenge against the amendment brought to Rule 5(1)(a) W.P.(C) No.10140 of 2020 :- 6 :- referred to first above, the same is not pursued by the petitioner and hence is not being dealt with. In the result, the writ petition fails and is accordingly dismissed. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge **WP(C).No.10140 OF 2020(N)** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**TRUE PHOTOSTAT COPY OF THE ORDER NO.EXC**| |---|---| ||**6831/2017 DATED 18.04.2018 PASSED BY THE 1ST**| ||**RESPONDENT.**| |**EXHIBIT P2**|**TRUE PHOTOSTAT COPY OF THE CERTIFICATE OF**| ||**CHEMICAL ANALYSIS NO.2825/2019 ISSUED BY THE**| ||**ASSISTANT CHEMICAL EXAMINER, GOVERNMENT OF**| ||**KERALA.**| |**EXHIBIT P3**|**TRUE PHOTOSTAT COPY OF THE ORDER DATED**| ||**31.10.2019 PASSED BY THE LEARNED MAGISTRATE**| ||**IN CMP NO.3909 OF 2018 IN CC NO.462/2018.**| |**EXHIBIT P4**|**TRUE PHOTOSTAT COPY OF THE REPRESENTED DATED**| ||**02.11.2019 SUBMITTED BY THE PETITIONER**| ||**BEFORE THE 2ND RESPONDENT.**| |**EXHIBIT P5**|**TRUE PHOTOSTAT COPY OF THE ORDER PASSED BY**| ||**THIS HON'BLE COURT ON 01.11.2019 IN IA NO.1**| ||**OF 2019 IN WPC NO.40462 OF 2018.**| |**EXHIBIT P6**|**TRUE PHOTOSTAT COPY OF THE REPRESENTATION**| ||**DATED 12.03.2020 SUBMITTED BY THE PETITIONER**| ||**BEFORE THE HON'BLE MINISTER.**| |**EXHIBIT P7**|**TRUE PHOTOSTAT COPY OF THE REPRESENTATION**| ||**DATED 13.03.2020 SUBMITTED BY THE PETITIONER**| ||**BEFORE THE 4TH RESPONDENT.**| |**EXHIBIT P8**|**TRUE PHOTOSTAT COPY OF THE GO(MS)NO.22/2020**| ||**DATED 27.02.2020 ISSUED BY THE 1ST**| ||**RESPONDENT.**| |**EXHIBIT P9**|**TRUE PHOTOSTAT COPY OF THE REPRESENTATION**| ||**DATED 10/6/2020 SUBMITTED BY THE PETITIONER**| ||**BEFORE THE 2ND RESPONDENT**| **-----**