VIJAYABHANU Vs. STATE OF KERALA

JUDGEMENT

(1.) Rule 6(26) of the Kerala Abkari Shops (Disposal in Auction) Rules 1974 whether could be used as a shield by the State when they are at fault is the question that has come up for consideration in this case.

(2.) Petitioner was one of the joint bidders of toddy shop Nos. 1 to 90/2000-2001 of Chittur Range. They bid the shops for an annual rental of Rs. 2,33,01,000/- and the sale was confirmed in their favour. Thirty percent of the bid amount was deposited as security. The Asst. Excise Commissioner granted licence to them to vend toddy in 90 shops of Chittur Range for the year 2000-2001 and they started business from 1-4-2000 onwards. On 6-5-2000 the Excise Enforcement and Anti-Narcotic Special Squad of Thrissur and Excise Range party of Chittur had conducted a joint raid at the toddy depot granted in the name of the petitioner and other joint bidders and booked a case for possession of 26170 litres of toddy as against the permissible quantity of 12675 litres of toddy, about 5 Kgs. of a paste like substance used for manufacture of artificial toddy and 55 Kgs. of Sugar in addition to 10 vehicles loaded with toddy. Case was registered as Cr. No. 11/2000 under Section 55(a), 57(a) and 57A(i)(iii) of Abkari Act against petitioner and other joint bidders as well as their 5 employees. Excise Commissioner thereupon directed the Asst. Excise Commissioner, Palakkad to cancel the licences of toddy shop Nos. 1 to 90/2000-2001 of Chittur Range as per Rule 6(30) of Kerala Abkari Shops (Disposal in Auction) Rules, 1975.

(3.) Petitioner and others aggrieved by the order had filed O.P. 13562/2000 challenging the cancellation order. This court quashed the order and directed the second respondent to pass final orders after hearing the licensees. Excise Commissioner on hearing the parties passed order dated 18-7-2000 setting aside the order dated 9-5-2000 passed by the Asst. Excise Commissioner and permitted the petitioner and others to open the toddy shops for conduct of the business with immediate effect. Because of the illegal order passed by the Asst. Excise Commissioner the toddy shops could not be conducted for 76 days, ie., from 6-5-2000 to 20-7-2000 on account of the cancellation of the licence and they preferred representations before the Commissioner and Government for remission of proportionate kist for 76 days. However, the request was rejected by the Government by order dated 17-5-2001 stating that as per Rule 6(26) of Kerala Abkari Shops (Disposal in Auction) Rules, 1974 no remission or abatement of rental shall be claimed by the licensee on any account whatsoever. Aggrieved by the same petitioner has approached this Court. Learned single Judge found no reason to interfere with the order passed by the Government and rejected the request of the petitioner. Aggrieved by the same this appeal has been preferred.