IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR TUESDAY, THE4H DAY OF MARCH201413TH PHALGUNA, 1935 WP(C).No. 6035 of 2014 (D) --------------------------- PETITIONER(S): ---------------- E.N SHANMUGHAN, AGED47YEARS S/O.NARAYANAN, ELAVUMKUDIYIL HOUSE, VENGOLA P.O VENGOLA VILLAGE, ERNAKULAM DISTRICT685556 BY ADVS.SRI.P.P.BIJU SRI.E.JIJOBAL RESPONDENT(S): ------------------ 1. THE STATE OF KERALA REPRESENTED BY SECRETARY, EXCISE DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM695001 2. THE DISTRICT COLLECTOR ERNAKULAM DISTRICT, COLLECTORATE, KAKKAAD ERNAKULAM682030 3. THE DEPUTY COMMISSIONER OF EXCISE,ERNAKULAM682030 BY GOVERNMENT PLEADER SMT.SHERIN.C.K. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON0403-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 6035 of 2014 (D) --------------------------- APPENDIX PETITIONER(S)' EXHIBITS ---------------------------- EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGES OF LICENSE NO10312-13 EXHIBIT P1(A) TRUE COPY OF THE RELEVANT PAGES OF LICENSE NO10512-13 EXHIBIT P1(B) TRUE COPY OF THE RELEVANT PAGES OF LICENSE NO10612-13 EXHIBIT P2 TRUE COPY OF THE G.O(MS) NO222014 DATED1202-2014 ISSUED BY THE1T RESPONDENT EXHIBIT PO3 TRUE COPY OF THE NOTIFICATION DATED2602-2014 ISSUED BY THE3D RESPONDENT EXHIBIT P4 TRUE COPY OF THE IDENTITY CARD DATED13-2014 ISSUED BY THE VILLAGE OFFICER,VENGOLA VILLAGE EXHIBIT P5 TRUE COPY OF THE MEDICAL CERTIFICATE DATED2802-2014 ISSUED FROM THE P.V.S.HOSPITAL LTD,KALOOR, ERNAKULAM EXHIBIT P6 TRUE COPY OF THE IDENTITY CARD DATED13-2014 ISSUED BY THE VILLAGE OFFICER,VENGOLA VILLAGE TO THE BROTHER OF THE PETITIONER RESPONDENT(S)' EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE. dlk 'C.R.' C.T.RAVIKUMAR, J.
------------------------------ W.P.(C)No.6035 of 2014 ------------------------------- Dated 4th March, 2014 JUDGMENT
The petitioner is the licencee of toddy shop Nos.42/2012-13, 50/2012-13 and 51/2012-13 of Group XI of Perumbavoor Excise Range. Presently he is hospitalised due to Cardio Thoracic Surgery. But, the petitioner intends to purchase the privilege of vending toddy in shops included in Group No.XI of Perumbavoor Range and he was already issued with Ext.P4 identity card of intending purchaser. It is in the said circumstances that the petitioner filed this writ petition seeking following reliefs:- "i. Issue a writ of mandamus or such other writ or direction directing respondents No.2 and 3 to allow the petitioner to send his brother as his representative to attend the sale of toddy shops as per Ext.P3 notification. ii. Issue a writ of mandamus or such other writ or direction directing Respondents No. 2 and 3 to allow the petitioner's brother as a representative as per Exhibit-P6 identity card to attend the sale of toddy shops as per Exhibit-P3 notification." 2. Obviously, the contention of the petitioner is that on account of his physical ailment he is not in a position to purchase the privilege of vending toddy in the aforesaid shops by appearing in person and therefore he seeks for a direction to respondents 2 W.P.(C).No.6035 of 2014 2 and 3 to permit his brother to attend the sale of toddy shops pursuant to Ext.P3 notification on his behalf to purchase the said privilege. A perusal of the contention would reveal that virtually the petitioner himself admits the fact that it is impermissible going by the position of law and that is why the petitioner comes up with the aforementioned prayers.
3. The learned Government Pleader vehemently opposed the claims, contentions and prayer of the petitioner and to substantiate the stand brought to my notice the provisions under Rule 5(4) of the Kerala Abkari Shops Disposal Rules, 2002 ( for short 'the Rules'). The same reads thus:- "5(4) Any [applicant] who intends to avail the privilege of vending toddy in any shops as may be notified in sub-rule (1) of rule 4 shall be present in the place/room where the sale is conducted. Each intending purchaser, shall pay a sum of Rs.200 as entrance fee to the [Deputy Commissioner of Excise] of the Division concerned before the time of sale and shall obtain a receipt thereof from that officer. The entrance fee thus paid shall not be refund. He/she shall bring an identity card in Form 1 appended to these rules containing his/her recent photograph and his/her signature duly attested by a Revenue Officer not below the rank of a Village Officer of the area where he/she permanently resides. The entrance fee receipt and identity card shall also serve as hall ticket for the admission of the intending purchasers into the sale room. No [applicant] will be allowed to purchase the privilege as an agent for another." W.P.(C).No.6035 of 2014 3 Relying on Rule 5(4) of the Rules it is submitted by the learned Government Pleader that no applicant could be permitted to purchase the privilege as an agent for another. Per contra, the learned counsel for the petitioner submitted that taking into account the present physical condition of the petitioner and the preference he had in the matter of purchase of privilege of vending toddy in the aforesaid shops it would be hard to apply the said provisions against him. In short, the petitioner seeks for permission to participate in the sale through his brother as his agent.
4. To decide the entitlement of the petitioner to the reliefs a careful analysis of the relevant provisions is required. The first limb of Rules 5(4) would reveal that an applicant who intends to avail the privilege of vending of toddy in any shops shall be present in the place/room where the sale is conducted. That apart it is evident from Rule 5(4) such an applicant has to pay the entrance fee and the same would not be refunded and that apart he/she shall bring an identity card in From No.1 appended to those rules containing his /her recent photograph and his/her signature duly attested by a Revenue Officer not below the rank of Village Officer of the area where he/she permanently resides. In this context it is relevant to note that in the first and last sentences of the Rule 5 W.P.(C).No.6035 of 2014 4 (4) of the Rules the word 'applicant' was substituted in place of the word 'individual' as per SRO No.222/2007 published in G.O.(P) No.43/2007/TD dated 13.7.2007 with effect from 1.4.2007. In fact, it was in substitution of the word 'person' that the word 'individual' was earlier incorporated in Rule 5(4) of the Rules as per SRO No.257/2002 dated 11.4.2002. Rule 5(3) of the Rules enumerates the conditions for being an eligible applicant for the privilege and it is thereafter that the aforementioned conditions that the applicant who intends to avail privilege of vending toddy shall be present in the place/room where the sale is conducted and that no applicant will be allowed to purchase the privilege as an agent for another and other conditions are enjoined under Rule 5(4) of the Rules. Form No.1 under Rule 5(4) is the identity card of the intending purchaser for participating in the sale of toddy shops. The photograph of the intending purchaser has to be affixed thereon and revenue officer not below the rank of a Village Officer of the area where the intending purchaser permanently resides has to verify and certify the photograph and address of the intending purchaser. The intending purchaser has to put his signature in the said document in the presence of the said revenue officer and the revenue officer has to attest on the photograph. Rule 5(4) makes it W.P.(C).No.6035 of 2014 5 clear that the said identity card thus issued in Form No.1 shall serve as the hall ticket for the admission of the intending purchaser in to the sale room. Thus, it is evident from the said provisions that the conditions are imposed to ensure that it is an applicant who enters the place/room where sale is conducted. The aforesaid amendments and cumulative reading of Rules 5(3) and 5(4) of the Rules makes it clear that the applicant alone can purchase the privilege and the applicant who enters the hall cannot act as an agent and purchase it for another. Going by Rule 5(10) the sale list shall be signed and dated at the place of sale itself by the officer who conducted the sale and by the applicant declared to be the grantee of privilege. It is thus obvious that in this case the brother of the petitioner can enter auction hall only if he is an applicant intending to purchase the privilege of vending toddy in any shops as notified in sub-rule (1) of Rule 4 and the petitioner cannot seek for the entry of his brother into the hall for purchasing the privilege for the petitioner. The amendment would undoubtedly reveal the entry to the hall is confined only to the intending purchasers/applicants and an applicant cannot act as an agent and purchase the privilege for another. One may think as to why the petitioner cannot be permitted to create an agency and employ his W.P.(C).No.6035 of 2014 6 brother as his agent under section 182 or as a power of attorney under section 188, of the Indian Contract Act, 1872. But then, as already noticed under Rule 5(4) of the Kerala Abkari Shops Disposal Rules, 2002 framed in exercise of the powers conferred by section 18A and 29 of the Abkari Act, 1077 specifically forbids an applicant to purchase privilege as an agent for another and an over all consideration of the provisions under Rule 5 thereunder does not permit anybody other than an applicant to enter in the place/room where the sale is conducted to avail the privilege of vending toddy in any shops as may be notified in sub rule (1) of Rule 4 thereunder. Hence, any agreement the object of which is forbidden by law, here by the special law framed under the Abkari Act, will be hit by section 23 of the Indian Contract Act, 1872 and will be unlawful and void. True that the rigor of the rules is, therefore, hard inasmuch as it denies permission to another to act as an agent for another to purchase the privilege of vending toddy in any shops under any circumstance. The position of law may be hard but the maxim is Dura lex Sed lex (the law is hard but it is the law). As long as that is the law and in the absence of any provision for relaxation the petitioner cannot seek for issuance of a writ of mandamus against the respondents to act against the W.P.(C).No.6035 of 2014 7 provisions of law. No provision or no precedent which is directly applicable has been brought to my notice by the learned counsel for the petitioner to contend that despite the existence of Rule 5(4) it is permissible for an intending purchaser to seek entry of another person to the hall where sale is to be conducted to act as his agent to purchase the privilege. In the circumstances, the petitioner is not entitled to the reliefs sought. Accordingly, this writ petition is dismissed. Sd/- C.T.RAVIKUMAR, JUDGE. dlk