9911796707
TMI Blog2016 (4) TMI 974X X X X Extracts X X X X X X X X Extracts X X X X ..... rejection therof, 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 earlier W.P. 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.P5 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.P5 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt seeking a declaration that he had a preferential right under Rule 5(1)(a) of the Kerala Abkari Shops Disposal Rules, 2002 ('Rules' for short) in respect of toddy shops in Group No:III of Kunnamkulam Excise Range, in spite of registration of Crime No:72/2013. The said writ petition was admitted and by an interim order dated 5.3.2014 a stay of confirmation of the sale was granted. It is the case of the appellant that, though the fourth respondent was aware of the auction that was conducted on 5.3.2014, he had not sought for the grant of a privilege at any time before the auction. Nor did he participate in the auction. Thereafter, on 2.4.2014 WPC 6359/2014 was disposed of directing the first respondent to consider and pass orders on the claim of the fourth respondent for preferential right, within a period of three weeks of the date of receipt of a copy of the judgment. The said judgment has been produced in the writ petition, marked as Ext.P5. The appellant herein had got himself impleaded in the said writ petition and was therefore a party to the said proceedings. Pursuant to the said judgment a hearing was conducted on 30.4.2014. The first respondent considered the conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilege. The learned Senior Counsel also points out that, though detailed argument notes had been submitted, a copy of which has been produced as Ext.P9, the first respondent had omitted to consider any of the contentions raised. Ext.P8 judgment of this Court had specifically directed the first respondent to consider the question as to whether the crime against the fourth respondent had been validly registered. However, no finding on the above aspect has been entered by the first respondent in Ext.P10. According to the learned Senior Counsel, Ext.P10 is a verbatim reproduction of the earlier order passed by the first respondent evidenced herein by Ext.P7. Therefore, it is contended that Ext.P10 is vitiated by non application of mind. Though the above aspects were all pointed out and pressed before the learned Single Judge, the impugned order has been sustained. In view of the above, it is contended that the judgment of the learned Single Judge is unsustainable and liable to be set aside. 6. 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 toddy that was allegedly seized, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 the cancellation of fourth respondent's license also there was no ground on which the preference available to him under Rule 5 (1) could be denied. In answer to the contention that Ext.P10 was 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 a preference under Rule 5(1)(a) of the Rules to the fourth respondent. The said order has been found to be justified b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve provision, it is sufficient that an abkari case is registered against the former licensee. In the present case admittedly a crime, 72/2013 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, the allegation is that an offence other than one under Section 56 of the Act has been registered. Since the above two ingredients are satisfied, the fourth respondent has lost his privilege under the above provision, it is contended. 10. 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.4299/2013. The said case has been taken on file and this Court has also granted an interim order, which reads as follows:- There will be an interim order staying all further proceedings pursuant to Annexure-B (Cr.No:72/2013 of Excise Inspector Excise Range, Wadakkancherry, Thrissur) including the suspension/cancellation of licenses of toddy shops in Group No:III of Kunnamk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al contentions were considered by the first respondent and a decision was taken to grant privilege to the fourth respondent as per Ext.P7. Ext.P7 was the subject matter of challenge in WPC 13758/2014 at the instance of the appellant herein. By Ext.P8 judgment, Ext.P7 was set aside and the first respondent was directed to consider the issues afresh. Ext.P10 is the order passed pursuant to the said direction. Though it is contended that, Ext.P10 is a verbatim reproduction of Ext.P7, 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.P10 in the above perspective, we find that the various contentions raised before the authority have been substantially met in Ext.P10. Therefore, we agree with the finding of the learned Single Judge that Ext.P10 is not a verbatim reproduction of Ext.P7, the earlier order. 13. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
