The petitioner has filed this writ petition aggrieved by Ext.P3 order passed by the second respondent forfeiting an amount of Rs.2,98,650/- (Rupees two lakhs ninety eight thousand six hundred fifty only) which the petitioner had remitted towards the annual rent for conduct of the toddy shop Group No:1/14-17 of Pala Range. The petitioner was the successful bidder in respect of the said toddy shops. 2. According to the counsel for the petitioner, the second respondent has no power to issue the said order. Only the authorities under the Excise Department are competent to issue such an order.
3. A counter affidavit has been filed by the second respondent. According to the learned Govt. Pleader, Ext.P3 has been issued in exercise of the power under Rule 5(14) of the Kerala Abkari Shops Disposal Rules, 2002 (the 'Rules' for short). Since the second respondent was the officer conducting the sale, it is contended that it was competent for him to issue Ext.P3.
4. The counsel for the petitioner points out that, the auction was conducted on 3.6.2014. Thereafter, the auction was confirmed in favour of the petitioner on 7.6.2014, in accordance with the Rules. With the confirmation of the auction in favour of the petitioner, it is contended that the second respondent's role had come to an end. Therefore, the said provision is not applicable.
5. Heard the respective counsel. It is not in dispute that the sale was conducted on 3.6.2014 and that the sale was confirmed later on 7.6.2014. Therefore, as rightly contended by the counsel for the petitioner, the role of the second respondent had come to an end. The impugned order though dated 3.6.2014 does not appear to have been passed before the confirmation of the sale. If Ext.P3 had been passed on the date borne on the said order there is no explanation why the sale was confirmed on 7.6.2014. A perusal of Rule 5 (14) shows that, the said sub-rule is to apply in cases of any dispute at the time and place of sale. In the present case, admittedly there was no dispute either at the time or place of sale. Therefore, the provision relied on by the second respondent can have no application to the facts of the case. It is therefore held that Ext.P3 is unsustainable.
In view of the above Ext.P3 is set aside. However, it is made clear that, the setting aside of Ext.P3 shall be without prejudice to the liberty of the authorities under the Abkari Act and the Rules thereunder, to issue fresh orders in accordance with law. The writ petition is disposed of accordingly.
jj /True copy/ Sd/-
K. SURENDRA MOHAN Judge