2014 (4) TMI 1128 - HC - VAT and Sales Tax

Validity of provisional order of allotment - Denial of rightful claim for preferential right under Rule 5(1)(a) of the Rules, 2002 - Held that - 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. - Petition disposed of

Summary

Issues involved:
Claim for preferential right under Rule 5(1)(a) of the Kerala Abkari Shops Disposal Rules, 2002; Provisional allotment of toddy shops to the 7th respondent; Confirmation of sale by the Commissioner of Excise under Rule 5(15) of the Rules; Entitlement of petitioners for preferential right; Directions to Excise Commissioner regarding consideration of petitioners' claim.

Analysis:

The petitioners in the writ petitions asserted their preferential right under Rule 5(1)(a) of the Kerala Abkari Shops Disposal Rules, 2002, regarding certain toddy shops which were provisionally allotted to the 7th respondent. They contended that the provisional allotment was a result of the illegal denial of their rightful claim. The additional seventh respondent argued against the petitioners' entitlement to preferential rights for the shops in question, which had already been provisionally allotted to them. Rule 5(15) stipulates that no sale by the officer conducting the sale is final unless confirmed by the Commissioner of Excise, who has the discretion to accept or reject any sale for valid reasons recorded in writing.

When the writ petitions were heard, the court issued interim orders restraining the confirmation of the sales for the mentioned shops. The court directed the Excise Commissioner, the common first respondent, to issue a notice of hearing to both the petitioners and the party respondents before making a decision under Rule 5(15) regarding the shops. The Excise Commissioner was instructed to consider the petitioners' entitlement to preferential rights under Rule 5(1)(a) before passing any orders, allowing the party respondents to present their arguments against the petitioners' claim. The court mandated that the orders be issued promptly, within three weeks from the date of receipt of the judgment.

This judgment primarily addresses the issue of preferential rights claimed by the petitioners under the Kerala Abkari Shops Disposal Rules, 2002, concerning the provisional allotment of toddy shops to the 7th respondent. It clarifies the process of confirming sales by the Commissioner of Excise under Rule 5(15) and emphasizes the need for considering the petitioners' entitlement to preferential rights before finalizing any orders. The court's directive to the Excise Commissioner ensures a fair hearing for all parties involved and expeditious resolution of the matter within a specified timeframe.