The petitioner along with 2 other persons were the successful bidders with respect to certain number of toddy shops included in Group-II of Kollam Excise Range, with respect to the year 2007-08. The 2nd respondent had confirmed the sale in favour of the petitioner and other joint bidders on 01-04-2007. It is stated that the bidders have remitted rental amount and advance deposit of salary of the employees, pursuant to confirmation of the sale. But it is alleged that the licence was not granted with respect to toddy shops Nos.47, 48 and 5, out of the shops for which the bid was confirmed. According to the petitioners the licence was not granted because of non-availability of suitable site and there was no latches or default on the part of the licencees in not running the shop during the year. Under such circumstances the petitioner submitted Ext.P6 representation before the 2nd respondent seeking refund of the rental amount and deposit of salary made with respect to those 3 shops. When the said representation was not considered by the 2nd respondent, the petitioner approached this court in a writ petition. In Ext.P8 judgment this court issued direction to the 2nd respondent to consider and dispose of Ext.P6, after affording an opportunity of personal hearing to the petitioner. This court made it clear that it will be left open to the 2nd respondent to consider the question of maintainability of Ext.P6. Exhibit P9 is the consequential order issued based on the directions contained in Ext.P8 judgment. The 2nd respondent found that the Assistant Excise Commissioner had reported that the shops in question were not licenced during the year, because the licencees have failed to find out suitable unobjectionable sites to locate the toddy shops and they have not submitted any application to get the toddy shops licenced during the said year. The 2nd respondent accepted the report and observed that in view of Rule 7 (27) of the Kerala Abkari Shops Disposal Rules, 2002 no remission or abatement of the rental shall be claimed by the petitioner. It is challenging Ext.P9, this writ petition is filed.
2. Contention of the petitioner is that, reasoning mentioned in Ext.P9 that the bidders have failed to submit any application to get the toddy shops licenced at suitable unobjectionable sites, is not true and correct. According to the petitioner suitable sites to locate the toddy shops were pointed out and the Excise authorities had conducted verification regarding suitability. But it is stated that the licence was not issued in anticipation of the change of Abkari Policy and due to lack of sufficient number of shops. Learned counsel for the petitioner pointed out that the 2nd respondent had never made any verification of the records despite the specific contention raised at the time of personal hearing. He had issued Ext.P9 blindly on the basis of a report submitted by the Assistant Excise Commissioner, without considering any factual aspects. Learned counsel for the petitioner argued that if there was any failure on the part of bidders in locating the shop at suitable unobjectionable places, the department ought to have re- tendered the privilege with respect to those shops. Since such an action was not seen taken it is evident that the licence was not issued because of the reason as mentioned in Ext.P9, is the contention.
3. Learned counsel further pointed out that the reasoning mentioned based on Rule 7 (27) cannot be accepted. He had placed reliance on a Division Bench decision of this court in Vijayabhanu V. State of Kerala (2006 (1) KLT 140). It is held therein that, if there is any mistake on the part of the State themselves in not permit conducting the shops in question, Rule 6 (26) cannot be used as a shield. The department has the right to retain the rental amount only if the petitioner had violated the terms and conditions of the licence.
4. Under the above mentioned circumstances this court is of the considered opinion that the matter requires reconsideration at the hands of the 2nd respondent. The 2nd respondent will take a fresh decision considering all the contentions raised by the petitioners and after making due verification of the relevant records relating to grant of privilege with respect to the year concerned.
5. Hence this writ petition is allowed and Ext.P9 is hereby quashed. The 2nd respondent is directed to reconsider the matter in the light of Ext.P6 representation, after affording a further opportunity of personal hearing to the petitioner and after calling for the relevant records. An appropriate decision shall be taken based on the materials available, taking note of the observations contained herein above, at the earliest possible, at any rate within period of 3 months from the date of receipt of a copy of this judgment.
AMG Sd/-
C.K. ABDUL REHIM JUDGE True copy P.A. to Judge