Dismissed

K.Jayan v. the District Collector

Kerala HC3 Nov 2020WP(C)/9837/2020

Case brief

AI extract

What is this about?

A writ petition was dismissed where the petitioner, acting in individual capacity, challenged the allotment of toddy shops. The Court held the petitioner could not claim preference denied to the workers committee or challenge a lawful lot-based allotment made to the competent applicant.

What did the court decide?

Petitioner's request for mandatory injunction and declaration to continue as licensee was dismissed; petition stood dismissed.

K.Jayan Vs the District Collector — Contract and Commercial Disputes | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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TUESDAY, THE 03RD DAY OF NOVEMBER 2020 / 12TH KARTHIKA, 1942

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WP(C).No.9837 OF 2020(D)

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PETITIONER:

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K.JAYAN, AGED 48 YEARS, S/O. VELAYUDHAN, KUZHIKKATTIL HOUSE, KODAKKAD P.O, MALAPPURAM DISTRICT - 671 310

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BY ADV. SRI.P.ANOOP (MULAVANA)

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RESPONDENTS:

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1 THE DISTRICT COLLECTOR CIVIL STATION ROAD, UPHILL, MALAPPURAM DISTRICT - 676 505

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2 THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM - 695 033

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3 THE DEPUTY COMMISSIONER, OF EXCISE, EXCISE DIVISION OFFICE, B2 BLOCK, CIVIL STATION, MALAPPURAM - 676 505

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4 THE EXCISE CIRCLE INSPECTOR, EXCISE CIRCLE OFFICE, THIRURANGADI P.O, PARAPPANAGADI - 676 302

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5 PRASAD, S/O. VIJAYAN, AKSHAYA HOUSE, ERNAD TALUK, MANJERI P.O, MALAPPURAM DISTRICT - 676 121

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R5 BY ADV. SRI.M.G.KARTHIKEYAN R5 BY ADV. SRI.NIREESH MATHEW

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SRI K P HARISH, SR GP

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.9837 OF 2020

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JUDGMENT

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Being aggrieved by the rejection of the right of privilege of vending of certain Toddy Shops in Group No III of Parappanangadi range under the Malappuram Excise Division, the petitioner has approached this Court seeking the following reliefs: -

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i) Issue a Writ of mandamus or any other appropriate, writ order or direction directing the respondents 1 to 3 to allow the petitioner to continue as the licensee of the above said toddy shops (TS No. 1 at Vallikunnu, TS No. 5 at Ariyalloor ) and conduct the same.

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ii) Declare that the respondents 1 to 3 are duty-bound to allot the lot to the petitioner since there is no ineligibility for the petitioner as he is the licensee as per the Kerala Abkari Shops Disposal Rules, 2002.

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The petitioner states that the Toddy Workers committee with him as

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the convenor was vending Toddy in shop No.1 at Vallikunnu, T.S.No.2 at Pothumkuzhikadu, T.S.No.4 at Kodakkad and T.S.No.23 at Kottakadavu and T.S. No 5 at Ariyanelloor till 30-3-2020. It is stated that as they were vending toddy for the past three years, the workers committee was entitled to preference for the Abkari year 2020-2021. However, no preference was granted. The petitioner applied in the open category along with the 5th respondent. The names of the petitioner and the 5th respondent was put on lot and the fifth respondent was

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WP(C).No.9837 OF 2020

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declared as successful under Rule 5 (9) of Abkari Shops Disposal Rules,2002 (“Rules, 2002” for short). According to the petitioner, the fifth respondent was a fresh applicant whereas the petitioner being the person who had been conducting the toddy shops since 2015-2016 is entitled to the preference.

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The second respondent has filed a statement controverting the assertions made by the petitioner. It is stated that the privilege of vending toddy was initially granted to the workers committee as the toddy shops in that range remained unsold for want of eligible purchasers on their remitting an annual rental of Rs.500/-. They were entitled to various exemptions and benefits. This arrangement continued till the Abkari year 2019-2020. Thereafter, the privilege of vending toddy in the toddy shops for the ensuing 3 years or till the date on which the Toddy Board comes into existence whichever is earlier from the 1st day of April, 2020 to 31.03.2023 was put to public auction. As per the Government Order dated 12.03.2020, the first round of sale of toddy shops of Malappuram Division was conducted on 18.03.2020 by the District Collector, Malappuram. The petitioner, in his capacity as the Convenor of Toddy Workers’ Committee submitted an application in the preferential category. Rule 2(ba) of the Rules, 2002 defines ‘applicant’ to mean any individual or group of individuals applying for the grant of privilege of vending toddy and the convenor of the workers committee will not fall within that definition and hence his application was rejected. Later, applications were invited to the same group in the open category. The petitioner applied in his individual capacity and his competitor was the 5th respondent. As none of the

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WP(C).No.9837 OF 2020

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applicants were eligible for getting preference under Rule 5 (1) of Rules 2002, the name of all eligible applicants were put to lot by the officer conducting the sale in the presence of the petitioner and the 5th respondent was adjudged the winner. He was accordingly granted the privilege. It is stated that the Writ petition has been filed in his individual capacity and not as the convenor of the workers and this petition claiming preference is not even liable to be entertained.

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A counter affidavit has been filed by the 5th respondent reiterating the stand taken by the 2nd respondent. It is stated that the 5th respondent got the allotment of the toddy shops on drawing lots and he has paid the entire rental and all other payments amounting to Rs.8,05,700/-. It is pointed out that the petitioner in his individual capacity cannot claim preference for and on behalf of the workers committee and unsettle the proceedings.

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Sri Anoop P, the learned counsel appearing for the petitioner submitted that the petitioner is legally entitled to get preference as he had previous experience of five years. When the preference was refused, the petitioner had deposited the full amount as an ordinary licensee and in that view of the matter, there was no justification in denying the privilege in vending the toddy shop to the petitioner. He would point out that the petitioner was not having any ineligibility as per Rule 5 (3) of Rules, 2002.

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I Have heard the learned senior Government Pleader and Sri. Karthikeyan, the learned counsel appearing for the 5th respondent.

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WP(C).No.9837 OF 2020

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This writ petition is filed by the petitioner in his individual capacity claiming that he is entitled to preference for having conducted the toddy shops in the range as the convenor of the workers committee. I find that the workers committee is not before this Court seeking the above relief. Admittedly, the petitioner participated in the open category after the preference was denied and the proceedings were finalised by drawing lots. The petitioner has not raised any challenge to the said proceedings in this writ petition. As rightly submitted by the learned Government Pleader, the petitioner, in his individual capacity, will not be justified in raising a challenge against the denial of preference to the workers committee. If the workers committee was aggrieved by the denial of preference, the committee should have approached this Court and mounted a challenge.

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Even otherwise, the contention of the petitioner that the workers committee would be entitled to preference for operating the unsold toddy shops for the previous years cannot be sustained. Records reveal that the toddy shops were entrusted with the workers committee as the toddy shops remained unsold during the auction which was held during the Abkari year 2015-2016. Being the committee of Toddy Workers, they were exempted from furnishing the bank guarantee or bank draft or solvency by way of deposit into free savings account and they were also entitled to exemption from Tree tax, advance payment of 3 months contribution to the Toddy Workers Welfare Fund and one month wages to the employees. Chapter IV of the Rules, 2002 provides the general conditions applicable to the sale of toddy shops. Rule 5 states that while granting privilege,

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WP(C).No.9837 OF 2020

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preference shall be given to those licensees who had conducted toddy shops during the preceding three years consecutively, provided no Abkari case is registered against him other than under Section 56 of the Abkari Act. However, the proviso to sub clause (b) to Rule 5 states that preference to an “applicant” in the sale of toddy shops shall be limited to one group, range, of toddy shops in the whole of the state. Applicant has been defined under Rule 2 (ba) to mean and include any individual or group of individuals applying for the grant of privilege of vending toddy. The toddy shop workers and toddy tappers Cooperative Society have been omitted from the definition of the “applicant” by the Toddy Shops Disposal (2nd amendment ) Rules, 2012 which was notified on 21.7.2012. The allotment of toddy shops by lots when there are more than two applicants in the open category is as per Rule 5 (9) of the Rules, 2002. The petitioner has no contention that the said allotment by lots suffers on account of any illegality or irregularity.

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In that view of the matter, I find no reason to interfere in this matter.

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This Writ petition will stand dismissed.

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Sd/-

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RAJA VIJAYARAGHAVAN V

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JUDGE

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WP(C).No.9837 OF 2020

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE MINUTES OF THE MEETING DATED 09-03-2020 EXHIBIT P2 TRUE COPY OF THE LICENSE WITH RESPECT TO TODDY SHOP TS NO 5 AT ARIYALLOOR (LICENSE NO M-153/2019-2020) EXHIBIT P3 TRUE COPY OF THE LICENSE WITH RESPECT TO TODDY SHOP TS NO 1 AT VALLIKUNNU (LICENSE NO M 111/2015-2016 EXHIBIT P4 TRUE COPY OF THE DOCUMENTS FILED ALONG WITH THE APPLICATION FOR PARTICIPATING IN THE AUCTION EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED 1703-2020 ISSUED BY THE 2ND RESPONDENT

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RESPONDENTS EXHIBITS:NIL

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//TRUE COPY// P.A TO JUDGE

K.Jayan v. the District Collector

Case brief

What is this about?

What did the court decide?

K.Jayan v. the District Collector

Case brief

What is this about?

What did the court decide?

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