GOPIDAS Vs. SHIBU MATHEW

JUDGEMENT

(1.) The petitioner in both the Writ Petition and the Review Petition is the same. The petitioner was granted a licence for conducting toddy shop No. 13 in Changanacherry Excise Range for the period 2002-03. He availed a loan from the 4th respondent. According to him, he also gave some signed blank papers and signed blank cheque leaves towards security of the same. There is some dispute regarding the transaction between the petitioner and the 4th respondent which is not a matter to be resolved in this Writ Petition. However according to the petitioner, the employees of the petitioners shop belonging to C.I.T.U. Union are also having some allegiance to the 4th respondent and the employees did not permit the petitioner to enter the shop at a time when the original licence granted for the year 2002-03 was in force. According to him, the licence was taken over by them and understood that it is entrusted with the 4th respondent. Ext. P2 is a petition dated 21.3.2003 filed by the petitioner before the 2nd respondent requesting him to close the toddy shop with immediate effect till 1.4.2003. The petitioner has also submitted a petition before the Sub Inspector of Police, Chingavanam. But neither the Excise Authority nor the Police Authority did take any action. The 4th respondent is also conducting 15 toddy shops in Changanacherry Excise Range and other toddy shops in other Ranges. On the expiry of the licence period for the year 2002-03 the petitioner applied for renewal of licence in accordance with the Abkari Policy for the year 2003-04. Ext. P7 is a copy of the application submitted by the petitioner. At the time of submitting an application for renewal as per the Abkari Policy conditions he has to produce the original licence before the Licencing Authority. So, however, the petitioner could not produce the original and instead he produced a photocopy and applied for duplicate licence to the Assistant Excise Commissioner, who after considering the request made by the petitioner, granted duplicate copy of the licence issued for the year 2000-03 and on that basis granted renewal for the current year 2003-04. This grant of renewal was confirmed by the Excise Commissioner. In the meantime, the petitioner filed O.P. No. 11019/2003 before this Court and it was during the pendency of the Original Petition that renewal of the licence was granted in favour of the petitioner and accordingly he withdrew the Original Petition. Subsequently, the 4th respondent filed W.P.(C) No.16390/2003 claiming that he was conducting the shop and that the renewal of licence in favour of the petitioner was in violation of the rules and sought to cancel the same. However, he also thought fit to withdraw the Writ Petition by filing and appeal before the Excise Commissioner in the meantime and seeking for a direction to dispose of the said appeal. Accordingly he was permitted to withdraw the Writ Petition and directed that the appeal to be disposed of in accordance with law. Both the petitioner and the 4th respondent were heard in the matter by the Excise Commissioner before whom the 4th respondent had filed the appeal. By Ext. P11 renewal of the licence in favour of the petitioner for the year 2003-04 was cancelled which is impugned in this Writ Petition.

(2.) Subsequent to the filing of the present Writ Petition and after hearing the matter for some time, the matter stood adjourned for enabling the parties to complete their pleadings. In the meantime the petitioner had filed R.P.No. 617/2003 seeking to review of the judgment passed by this Court directing the Commissioner of Excise to dispose of the appeal filed by the 4th respondent herein as directed in W.P.(C)No.16390/2003. Mainly two contentions are urged: (i) The petitioner in W.P.(C) No.16390/2003 (4th respondent in the present W.P.(C)) has no locus standi to file any appeal before the Excise Commissioner in a matter regarding the grant of licence in favour of the petitioner in this Writ Petition. (ii) It is also contended that since the Writ Petition was disposed of at the admission stage, the review petitioner was not given an opportunity of being heard. According to him, if there is no jurisdiction for the Excise Commissioner to entertain the appeal and if the petitioner in W.P.(C) No.16390/2003 is not a person who has got any locus standi, he cannot seek writ of mandamus from this Court and therefore by issuing such a direction there is an error apparent on the face of the record and hence sought to review the judgment. In the Writ Petition his contention is that Ext. P1 order passed by the Excise Commissioner is vitiated for the reason that he cannot exercise any power under the Act for cancellation of the licence issued for the year 2003-04 in so far as the entire factual basis on which the cancellation of the licence is made is relying on certain circumstances said to have been existed at the time when the petitioner was enjoying the benefit of the licence for the period 2002-03. Therefore, whatever it be the illegality if any (assuming so) committed during the previous year in question will not clothe him with jurisdiction to cancel the renewal granted for the year 2003-04. It is also his case that the renewal having been granted by the Assistant Excise Commissioner and confirmed the same, there is no power to cancel the licence on the ground alleged in Ext. P11.

(3.) According to the 4th respondent, when the transfer by way of sale or otherwise is prohibited by the rules, the petitioner is not entitled to be granted renewal of the licence. According to him, once the licence is not renewed, it will be put public auction and the petitioner can also participate in the same along with others which right he has lost by virtue of the renewal granted in favour of the petitioner. He also submitted that as contemplated under rule the Excise Commissioner can at any point of time suo motu cancel the licence on valid grounds. According to him, the renewal of the licence is only continuation of the previous licence and cannot be treated as a fresh licence and therefore whatever conditions attached with the original licence holds good and if there is any in violation of any of the conditions even the renewed licence can be cancelled in accordance with the rules.