Komalam v. State of Kerala & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 19TH MARCH 2010 / 28TH PHALGUNA 1931 WA.No. 513 of 2010 -------------------AGAINST THE ORDER IN WPC.8984/2010 Dated 17/03/2010 .................... APPELLANT(S): RESPONDENTS ------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, TAXES (A) DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM. 3. THE DEPUTY COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM. 4. THE C.I. OF EXCISE, THIRUVANANTHAPURAM. 5. THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, THIRUVANANTHAPURAM. 6. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.T.B.HOOD RESPONDENT: PETITIONER ------------------------- KOMALAM, S/O. CHANDRANANDAN, MUDIPPURAVILA PUTHENVEETTIL, KATTACHALKUZHI DESOM, VENGANOOR VILLAGE, THIRUVANANTHAPURAM. BY ADV.SRI.C.C.THOMAS, SENIOR ADVOCATE SRI.M.G.KARTHIKEYAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19/03/2010, ALONG WITH WA NOS.514, 515 & 516/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K. BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ.** ## **------------------------------** W.A.Nos.513, 514, 515 & 516/2010 **------------------------------** Dated this, the 19[th] day of March, 2010 ## **JUDGMENT** ## **Balakrishnan Nair, J.** W.A.No.513/2010: The point that arises for decision in this appeal is, on stay of prosecution of a criminal case registered against an abkari contractor under Section 57(a) of the Kerala Abkari Act (hereinafter referred to as”the Act”), whether it can be taken that no abkari case is registered against him for the purpose of sub-rule (1)(a) of Rule 5 of the Kerala Abkari Shops Disposal Rules, 2002 (hereinafter referred to as “the Rules”). The respondents in the Writ Petition are the appellants. 2. The brief facts of the case are the following: The respondent is the licensee of the toddy shops in Group I of Thiruvananthapuram Excise Range. Samples of toddy taken from T.S.No.1 under the said Range on 3.5.2007 was found to WA No.513/2010 & conn.cases - 2 - contain 8.83% volume by volume of ethyl alcohol. The sale of toddy containing that much volume of ethyl alcohol was a violation of Rule 9(2) of the Rules. The said conduct of the licensee disclosed offences under Sections 57(a) and 56(b) of the Act and so, Crime No.34/2007 was registered against the respondent for the said offences. The respondent challenged the rules concerning the strength of permissible ethyl alcohol in coconut toddy and also the prosecution proceedings before this Court. That Writ Petition was dismissed by the learned Single Judge. On appeal, this Court dismissed the Writ Appeal also, as per the decision reported in **Komalan v. State of Kerala** [2009 (2) KLT 744]. The respondent moved the Apex Court and the Hon'ble Supreme Court by Ext.P1 order, granted stay of prosecutions concerning violations committed by him prior to the filing the Writ Petition. In view of the abkari policy notified by the Government for the year 2010-11, the respondent apprehended that his licence may not be renewed. So, the Writ Petition was filed, seeking the following reliefs: “(i) declare that the petitioner is entitled to get WA No.513/2010 & conn.cases - 3 - the preferential right for the allotment of the toddy shops in Group No.1 in Thiruvananthapuram excise range as per Rule 5(1)(a) of the Rules, 2002 in view of Ext.P1 order of the Hon'ble Supreme Court. (ii) declare that the petitioner is entitled to get preference as per Rule 5(1)(a) of the Rules, 2002 without taking into account the registration of case, C.R.No.34/2007 by the Excise Range, Thiruvananthapuram since it is stayed by the Hon'ble Supreme Court vide Ext.P1; (iii) issue a writ of mandamus or other appropriate writ, order or direction commanding respondents to give preferential right to the petitioner for the allotment of the toddy shops in Group No.1 in Thiruvananthapuram excise range for the abkari year 2010-2011 without taking into account the registration of CR No.34/2007 registered by the Excise Range, Thiruvananthapuram.” The following interim relief was also sought: “For the reasons stated in the accompanying memorandum of writ petition and affidavit, it is most humbly prayed that this Hon'ble Court may be pleased to pass an order directing the respondents to give preferential right to petitioner for the allotment of the toddy shops in Group No.1 in WA No.513/2010 & conn.cases - 4 - Thiruvananthapuram excise range for the abkari year 2010-2011 without taking into account the registration of CR No.34/2007 registered by the Excise Range, Thiruvananthapuram pending disposal of the above writ petition.” 3. Going by the above prayers, it is clear that the respondent was mainly concerned with apprehended denial of preference to him in the matter of grant of privilege to vend toddy under Rule 5(1)(a) of the Rules. The learned Single Judge allowed the interim relief by issuing the following order: “Notice. Having regard to the fact that by Ext.P1 order the Apex Court has granted stay of prosecution against the petitioner and taking into account the view taken by this court in paragraph 13 of Ext.P2 order and also the fact that the petitioner's licences have not been cancelled till date, there will be an interim order as prayed for. However, it is clarified that anything done on the basis of this interim order will be provisional and subject to the result of the writ petition.” 4. The respondents in the Writ Petition have come up in appeal, pointing out that because of the registration of the WA No.513/2010 & conn.cases - 5 - crime, the respondent is not entitled to preference. They also have a contention that for the very same reason, he is not entitled to get the privilege to vend toddy under Rule 5(3) of the Rules. The appellants point out that the view taken by the learned Single Judge relying on para 13 of Ext.P2 order is unsupportable in law. So, they prayed for allowing the appeal. 5. The learned senior counsel Sri.C.C.Thomas, who appeared for the respondent, pointed out that this Writ Appeal is not maintainable, in view of the judgment of this Court in **K.S.Das v. State of Kerala** [1992(2) KLT 358 (FB)]. It is also pointed out that the contentions raised relying on Rule 5(3) of the Rules by the appellants are untenable because of Ext.P1 stay order granted by the Hon'ble Supreme Court. It is finally contended that the view taken by the learned Single Judge relying on Ext.P2 is a plausible view on the facts that the disqualification under Rule 5(1)(a) will not apply to the respondent for the reason of registration of a crime, as further proceedings in that case have been stayed by the Apex Court. The learned senior counsel also pointed out that if, ultimately, WA No.513/2010 & conn.cases - 6 - the SLP is allowed, the loss sustained by the respondent during the interregnum will be irreparable and therefore, balance of convenience demands that the respondent should be permitted to run the toddy shop pending decision by the Apex Court. 6. We considered the contentions raised by both sides. The interim order, though stated to be provisional and subject to the result of the Writ Petition, is meant to remain during the pendency of the Writ Petition. Thus, it practically allows the main prayer in the Writ Petition itself at the threshold. It gives reasons also for granting the interim relief. Both sides submitted that the order was passed after hearing the appellants also through the learned Government Pleader. In this case, the facts are not disputed. On the legal question the learned Single Judge has taken a view, based on an earlier interim order of this Court, passed by another learned Single Judge, a copy of which is produced as Ext.P2. So, it cannot be said that having regard to the impact of the order, the Writ Appeal is not maintainable. 7. Since the learned Single judge has granted relief WA No.513/2010 & conn.cases - 7 - concerning preference under Rule 5(1)(a), we think, it is unnecessary for us to decide the contentions raised by both sides, based on Rule 5(3). Now, it is only an academic issue, with which we do not propose to deal with. The relevant rule in this case are Rule 5(1)(a). It is quoted below as it stands after the amendment introduced as per G.O.(P) No.62/2010/TD dated 12.3.2010. “5. 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 has conducted toddy shops during the year 2009-10, provided no Abkari case is registered against him other than under section 56 of the Abkari Act. The licencees who have conducted the shops during the year 2009-10 and whose licences cancelled due to registration of Abkari cases and subsequently exonerated by the Court and those licencees who could not complete the year 2009-10 on account of the closure of shops shall also be given preference. Provided that shops which functioned till 200607 and which are sought to be relocated within 50 metres radius of the previous site for carrying out WA No.513/2010 & conn.cases - 8 - repair to the building etc., shall be deemed as functional during 2009-10.” The opening words of Rule 5(1)(a) would show that a person who has run shops during the previous years is entitled to preference, if no abkari case is registered against him for any offence other than under Section 56 of the Act. In this case, admittedly, a crime has been registered against the respondent under Section 57(a) of the Act. Though further prosecution proceedings are stayed by the Apex Court, as evident from Ext.P1, it cannot be said that no abkari case is registered against him. A learned Single Judge of this Court in Ext.P2 order (para 13) took the following view: “It is also directed that if any offence other than under Section 56 is charged and if this Court has stayed the proceedings under such cases as regards the offence other than under Section 56, such cases shall also be treated as cases 'exonerated by Courts' for the purpose of Rule (1)(a).” We find it difficult to subscribe to the above view. Grant of stay of prosecution will not have the effect of exoneration of the persons against whom crime is registered. Since the WA No.513/2010 & conn.cases **==> picture [27 x 9] intentionally omitted <==** 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. Therefore, the interim order granted by the learned Single Judge is unsustainable. Accordingly, it is vacated and the Writ Appeal is allowed. ## W.A.Nos.514, 515 & 516/2010: 8. The point raised by the appellants in these cases is covered in their favour by the judgment in W.A.No.513/2010. Accordingly, these appeals are also allowed and the interim orders of the learned Single Judge are vacated. **K. Balakrishnan Nair, Judge.** **P.N.Ravindran, Judge.** **nm.**