Thomaskutty vs The Commissioner of Excise, Thiruvananthapuram Excise Commissionerate and Others

K. Surendra Mohan, J.—1. The petitioner in WPC 20871/2015 is the appellant. He had participated in an auction for the privilege to conduct toddy shops in Group No. XXI/14-17 of Kuttanad Excise Range of Alappuzha division for the years 2014-17 and had emerged as the successful bidder. However, the provisional allotment made in his favour has subsequently been cancelled by the first respondent. The writ petition was filed by the appellant challenging the said proceedings of the first respondent. The learned Single Judge has dismissed the said writ petition.

The brief facts of the case are the following. The fourth respondent was the licensee for the toddy shops in Group No. XXI of Kuttanad Excise Range, Alappuzha division for the year 2013-14. On 11.7.2013, the Sub Inspector of Police, Pulinkunnu Police Station, inspected one of the shops (T.S. No. 76) of which the fourth respondent was the licensee. He found two persons, alleged to be the Manager and the salesman, selling Indian Made Foreign Liquor (IMFL) in the store room. The said persons were arrested, 8 bottles of brandy and one bottle of rum were seized and Crime No. 472/2013 was registered by the Sub Inspector of Police against the said persons and the fourth respondent. The offences alleged against them were under Sections 55(a) & (i) and 56(b) of the Abkari Act. Pursuant to the registration of the crime, the first respondent suspended the fourth respondent''s license. Thereupon, the fourth respondent approached this Court, invoking the jurisdiction under Section 482 of the Code of Criminal Procedure by filing Crl. M.C. 3269/2013. The Crl. M.C. was admitted by this Court and by Ext. P9 interim order dated 26.8.2013, the investigation in Crime No. 472/2013 of Pulinkunnu Police Station was stayed. The interim order of stay is still in force.

Against suspension of his license, the fourth respondent filed WPC 20255/2013 before this Court. The said writ petition was disposed of by judgment dated 29.8.2013 directing the first respondent to consider the objections of the fourth respondent also and to pass appropriate orders. Accordingly, the first respondent conducted an enquiry and passed Ext. P2 order revoking the order of suspension. It has also been ordered in Ext. P2 that the second respondent shall restore the privilege and license of the toddy shops to him with immediate effect.

In the above circumstances, since the Abkari year was ending, the Government issued a notification proposing to auction the privilege to conduct various toddy shops including those that were licensed to the fourth respondent. Various persons including the appellant submitted applications in response to the said notification. The fourth respondent on the other hand sought for the issue of a preference certificate to him. Since such a certificate was denied to him he also participated in the auction that was conducted, as a general candidate. The successful bidder was finally decided by drawing of lots and the appellant became the successful bidder. Accordingly he was granted a provisional license. In the meanwhile, the fourth respondent filed WPC 6380/2014 challenging the denial of preferential right to him. In the said writ petition, this Court granted an interim order against confirmation of the sale in favour of the appellant. The appellant immediately got himself impleaded in the writ petition and contested the same. The said writ petition was disposed of relegating the parties to the proceedings for confirmation of auction that the first respondent had initiated. The direction of this Court in Ext. P3 reads as follows:--

"The Excise Commissioner, the common first respondent in these writ petitions, shall issue notice of hearing to the petitioners as also the party respondents before passing orders invoking the powers under Rule 5(15) of the Rules in respect of the aforementioned shops and pass orders only after considering the question of entitlement of the petitioners for preferential right under Rule 5(1)(a) of the Rules and subject to such decisions. It will be open to the party respondents to raise all their contentions resisting the claim of the petitioners for preferential right under Rule 5(1)(a) of the Rules, before the first respondent. Orders in the matter shall be passed expeditiously, at any rate, within a period of three weeks from the date of receipt of a copy of this judgment."

Accordingly the first respondent heard the matter, considered the contentions advanced and by Ext. P4 order cancelled the provisional allotment made in favour of the appellant herein, holding that the fourth respondent was entitled to a preferential right. Ext. P4 was the subject matter of challenge in WPC 14191/2014. As per Ext. P5 judgment dated 9.3.2015, after considering the rival contentions of the parties, this Court set aside the order of the first respondent and directed the said authority to take a fresh decision in the matter. The appellant as well as the fourth respondent were set at liberty to take up all their contentions before the said authority. It was accordingly that the first respondent has considered the matter and passed Ext. P8 order. As per Ext. P8 order the first respondent has again cancelled the provisional allotment made in favour of the appellant and has held that the fourth respondent was entitled to preferential right in the matter of allotment of the privilege of conducting the toddy shops. It was the said order that was unsuccessfully challenged before the learned Single Judge by the appellant.

According to Adv. N. Raghuraj who appears for the petitioner, this is a case in which the fourth respondent''s application for the grant of preferential right had been declined. He accepted the action, participated in the auction that was conducted but, was not successful. At the same time the appellant became the successful bidder. After having participated in the auction that was conducted, from the general category, it is contended that it is not open to the fourth respondent to claim the preferential right again. Having accepted the position that he was not entitled to any preference and having been unsuccessful in the auction that was conducted, he had approached this Court challenging the entire proceedings. It is contended that the above aspect has not been noticed by the learned Single Judge. It is next contended that, this Court had in Ext. P3 judgment directed the first respondent to consider the question of entitlement of the fourth respondent for preferential right. However, the same was not considered in Ext. P4. It was for the said reason that the order was challenged in WPC 14191/2014. As per Ext. P5 judgment, the order of the first respondent was set aside and the said authority was directed to consider the matter afresh. However, Ext. P8 order does not disclose any such consideration. The first respondent has omitted to consider the issues raised, in compliance with the direction of this Court contained in Ext. P5. Though there was a specific direction to consider whether the crime registered against the fourth respondent had been validly registered, the said aspect has also not been considered. The first respondent has stated that it was only because of the interim order granted by this Court that the fourth respondent was being granted the preferential right. It is contended that, an interim order operates only as between the parties to the litigation and that, it has no precedential value. Reliance is placed on the decision of another Division Bench of this Court in State of Kerala v. Komalan [, 2010 (2) KLT 190] in support of the above proposition. It is further contended that, Ext. P8 is only a verbatim reproduction of the earlier order passed by the first respondent. The said order having been set aside by this Court, a verbatim reproduction thereof betrays a total lack of application of mind. It is therefore contended that, the learned Single Judge went wrong in sustaining the impugned order and dismissing the writ petition.

The contentions of the counsel for the appellant are opposed by Adv. M.G. Karthikeyan who appears for the fourth respondent. According to the learned counsel, the persons who were found selling the IMFL that was allegedly seized, were not employees of the fourth respondent. None of his employees were involved in the incident. The fourth respondent was made an accused only for the reason that he was the licensee of the Toddy Shop. Therefore, according to the learned counsel, the fourth respondent cannot be found fault with, on any count. For the above reason, the registration of the crime as well as the allegation that the provisions of Section 55(a) & (i) were attracted is also without any basis, it is contended. For the above reason it is pointed out that the registration of the crime itself was unsustainable. It was appreciating the said contention, this Court has admitted the Crl. M.C. seeking to quash the same and granted an interim order against any further action on the basis thereof. Accordingly, cancellation or revocation of the license issued to the fourth respondent on the basis of the said crime has also been stayed by this Court. In view of the interim order passed by this Court, the fourth respondent was permitted to conduct the toddy shops up to the end of his license period. Therefore, there was no justification for the denial of the preference to which he was legitimately entitled. In answer to the contention that this Court had in Ext. P2 declined to grant a declaration that the fourth respondent would be entitled to preference, it is pointed out that a similar contention has been rejected by this Court in Ext. P8 judgment. According to the learned counsel, since all further proceedings on the basis of the crime that has been registered has been stayed and the cancellation of his license kept in abeyance, his right for being given preference has revived. No specific declaration to the said effect was necessary. The above aspect has been correctly taken note of by the first respondent. Therefore, according to the counsel there is no infirmity in the impugned order. The learned Single Judge was hence, fully justified in dismissing the writ petition.

The Govt. Pleader who represents respondents 1 to 3 has sought to justify the impugned order Ext. P10 by pointing out that the first respondent has considered all the contentions raised before the said authority in the proper perspective. It is pointed out that, since this Court has granted an interim stay of all further proceedings on the basis of the crime that has been registered and stayed cancellation of the fourth respondent''s license also, there was no ground on the basis of which the preference available to him under Rule 5(1) could be denied. To the contention that Ext. P10 is a verbatim reproduction of the earlier order Ext. P7 that was set aside by this Court, it is pointed out that the first respondent has considered all the contentions that were put forward. In the face of the prima facie finding of this Court and the grant of Ext. P2 interim order holding that the crime against the fourth respondent had not been validly registered, it was not necessary for the first respondent to have considered the said question in any further detail. It is for the said reason that, the first respondent has in deference to Ext. P2 interim order, proceeded to grant the preference under Rule 5(1)(a) of the Rules to the fourth respondent. The said order has been found to be justified by the learned Single Judge also. According to the learned Govt. Pleader there are no grounds to interfere with the same.

Though the matter is posted before us for admission, since all the parties were represented through counsel we have heard the respective counsel, at length. We have also considered the contentions advanced before us anxiously. We notice that the facts are not in dispute. It is admitted that, a substantial quantity of IMFL was seized from the toddy shop conducted by the fourth respondent. Crime No. 472/2013 was registered in respect of the incident by the Sub Inspector of Police, Pulimkunnu. However, all further proceedings pursuant to registration of the said crime has been stayed by this Court as per Ext. P2 interim order in Crl. M.C. 3269/2013. The interim order is still in force. In the above circumstances, whether the fourth respondent is entitled to claim privilege in the matter of grant of license to conduct the toddy shops during the abkari year commencing from 1.4.2014 is the disputed question. It is an admitted fact that, without extending preference to the fourth respondent, a regular auction of the shops was conducted on 5.3.2014, in which the appellant herein became the successful bidder. Therefore, the shops were provisionally allotted to him. However, the said provisional allotment has been cancelled by Ext. P8 order.

Rule 5(1)(a) of the Kerala Abkari Shops Disposal Rules, 2002 reads as under:--

"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 [2013-14], provided no Abkari case is registered against him other than under Section 56 of the Abari Act. The licensees who has conducted the shops during [2013-14] and whose licenses cancelled due to registration of Abkari cases and subsequently exonerated by the Courts and those Licensees who could not complete the preceding three years on account of the closure of shops shall also be given preference."

According to the learned Counsel for the appellant, for the purpose of the above provision, it is sufficient that an abkari case is registered against the former licensee. In the present case Crime, No. 472/2013 has admittedly been registered against the fourth respondent. The crime has been registered alleging offences under Section 55(a) & (i) of the Abkari Act. Therefore, according to the counsel, an offence other than one under Section 56 of the Act has been committed. Since the above two ingredients are satisfied, the fourth respondent has lost his privilege under the above provision.

However, it is worth noticing that, the registration of the crime itself has been challenged by the fourth respondent invoking the powers of this Court under Section 482 of the Code of Criminal Procedure. Thus, the matter is pending consideration of this Court in Crl. M.C. 3269/2013. The said case has been taken on file and this Court has also granted an interim order, which reads as follows:--

"Petition praying that in the circumstances stated therein the High Court be pleased to stay the investigation in crime No. 472/2013 of Pulinkunnu Police Station and also the arrest of the petitioner therein, till the disposal of this Crl. M.C.

This petition coming on for orders upon perusing the petition and upon hearing the arguments of Mr. Grashious Kuriakose (Sr.) and P. Shanes, Advocates for the petitioner and the State Prosecutor for the 1st and 2nd respondents, the court passed the following

Interim stay as prayed for."

As per the above interim order, all further proceedings pursuant to registration of the crime have been stayed. It is admitted that the said order is still in force. The consequence of the above order is that, all further proceedings against the fourth respondent have been brought to a standstill. The only grounds on which the license in favour of the fourth respondent was cancelled was the registration of the crime. Since the investigation itself was stayed, the fourth respondent was permitted to conduct the toddy shops up to the end of his license period. Having permitted the fourth respondent to conduct his toddy shops up to the end of his license period, there was no justification for having denied to him the benefit of the preference contained in Rule 5(1)(a) of the Rules. It is the said infirmity that has been set right by Ext. P8.

In the above context, we notice that the fourth respondent had challenged the auction that was conducted in WPC 6380/2014 before this Court. The appellant herein had got himself impleaded in the said writ petition. He had put forward his contentions in the said writ petition also. Having considered the rival contentions this Court disposed of the same with the following directions:--

"The Excise Commissioner, the common first respondent in these writ petitions, shall issue notice of hearing to the petitioners as also the party respondents before passing orders invoking the powers under Rule 5(15) of the Rules in respect of the aforementioned shops and pass orders only after considering the question of entitlement of the petitioners for preferential right under Rule 5(1)(a) of the Rules and subject to such decisions. It will be open to the party respondents to raise all their contentions resisting the claim of the petitioners for preferential right under Rule 5(1)(a) of the Rules, before the first respondent. Orders in the matter shall be passed expeditiously, at any rate, within a period of three weeks from the date of receipt of a copy of this judgment."

Accordingly, the rival contentions were considered by the first respondent and a decision was taken to grant privilege to the fourth respondent as per Ext. P4. Ext. P4 was the subject matter of challenge in WPC 14191/2014 at the instance of the appellant herein. By Ext. P5 judgment, Ext. P4 was set aside and the first respondent was directed to consider the issues afresh. Ext. P8 is the order passed pursuant to the said direction. Though it is contended that, Ext. P8 is a verbatim reproduction of Ext. P4, we are unable to agree. We find that the first respondent has considered the various issues raised. The first respondent being only an administrative functionary, a consideration of the issues with the precision of a judicial pronouncement cannot be expected. Viewing Ext. P8 in the above perspective, we find that the various contentions raised before the authority have been substantially met in Ext. P8. Therefore, we agree with the finding of the learned Single Judge that Ext. P8 is not a verbatim reproduction of Ext. P4, the earlier order.

With respect to the contention that the first respondent has granted the benefit of preference to the fourth respondent though such a relief has been declined by this Court in Ext. P9 order, we notice that such a contention was raised before this Court in WPC 14191/2014. The said contention was considered by this Court and rejected, in Ext. P5 judgment. This Court has found that, the consequence of Ext. P9 interim order was to set at naught all the proceedings initiated against the fourth respondent pursuant to registration of the crime against him, including cancellation of his license. Therefore, a further declaration to the effect that his right of preference was available to him was unnecessary. Having suffered the said judgment, it is not open to the appellant to agitate the said contention again.

Another contention put forward by the learned Counsel is that, the fourth respondent had requested for the grant of privilege to him and upon rejection thereof, had participated in the auction from the general category. Since he had participated in the auction and was unsuccessful, it was not open to him to claim the privilege after the auction was conducted. We notice that, the fourth respondent had challenged the denial of preference to him before this Court in WPC 6380/2014. In the said writ petition an interim order had been granted by this Court staying confirmation of the auction that was conducted on 5.3.2014. It is clear from the conduct of the fourth respondent that he had challenged the proceedings of the auction without any delay and had obtained interim orders against confirmation thereof. The said writ petition was disposed of by Ext. P3 judgment, with the appellant also on the party array, directing the first respondent to consider and take a decision in the matter after hearing all the parties. Having suffered Ext. P3 judgment pursuant to which the first respondent had considered the rival contentions of the appellant as well as the fourth respondent and decided the issues, it is not open to the appellant to contend that the fourth respondent should be held disentitled to the preference claimed by him for the reason that he had participated in the auction. The said contention is therefore rejected.

In the above facts and circumstances, we do not find any grounds to entertain this appeal or to interfere with the judgment appealed against. The appeal fails and is accordingly dismissed.