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Judges : KUNHI RAMAN,SUBRAMANIA IYER
Krishnankutty - Appellant
Versus
State - Respondent
Case No : A. S. No. 86 of 1951
Decided On : 02/12/1951
Advocates Appeared :
For the Appellant: S. Narayanan Potti, Advocate. For the Respondent: Advocate General; For State.
certiorari - vending toddy - Cochin Abkari Act (I of 1077) - Rules for vending toddy - The court dismissed the appeal against the refusal to issue a writ of certiorari to quash the order of the Government refusing to interfere in the petitioner's case. The auction for the right of vending toddy was conducted in accordance with the rules framed by the Government under the Cochin Abkari Act (I of 1077). The appellant, as the highest bidder, acquired the right to carry on the business in a specific place, subject to approval by the Board of Revenue. The Board of Revenue had the authority to review and direct the vendor to move to a more suitable place of business. The court held that the appellant was bound by the rules and restrictions of the contract entered into with the Government, and the Government was within its rights to enforce the conditions of the contract. The court found no grounds to interfere in the appeal and dismissed it with costs and advocate's fee fixed at Rs. 250.
Fact of the Case:
The appellant sought a writ of certiorari to quash the order of the Government refusing to interfere in the petitioner's case, which involved the right of vending toddy in a specific place. The auction for the right of vending toddy was conducted in accordance with the rules framed by the Government under the Cochin Abkari Act (I of 1077). The appellant, as the highest bidder, acquired the right to carry on the business in a specific place, subject to approval by the Board of Revenue.
Finding of the Court:
The court dismissed the appeal against the refusal to issue a writ of certiorari, holding that the appellant was bound by the rules and restrictions of the contract entered into with the Government, and the Government was within its rights to enforce the conditions of the contract.
Issues: The issues involved the refusal to issue a writ of certiorari, the authority of the Board of Revenue to review and direct the vendor to move to a more suitable place of business, and the appellant's contention of denial of natural justice.
Ratio Decidendi: The court held that the appellant was bound by the rules and restrictions of the contract entered into with the Government, and the Government was within its rights to enforce the conditions of the contract. The court found no grounds to interfere in the appeal and dismissed it with costs and advocate's fee fixed at Rs. 250.
Final Decision: The court dismissed the appeal with costs and advocate's fee fixed at Rs. 250.
1. This appeal is brought from the decision of Mr. Justice Koshi in O.P. No. 51 of 1950 in which the prayer was for the issue of a writ of certiorari to quash the order of the Government refusing to interfere in the petitioner's case. The order was passed on 4.10.1950. The petitioner also asked for a direction to the Board of Revenue to desist from enforcing its decision that the petitioner should transfer his place of business in vending toddy from what is described as shop No. 7. The learned judge refused to issue the writ and from that decision the present appeal is brought by the petitioner. The learned Advocate General appeared before this court on notice and supported the order made by the learned judge.
2. There was an auction held under the directions of the Government of the right of vending toddy in shop No. 7 for the period 17.8.1950 to 31.3.1952. The petitioner was the highest bidder at that auction and consequently he acquired the right of carrying on the business in shop No. 7 during the relevant period. There was no fixed place of business mentioned in the notice of auction. It may here be stated that the auction was conducted in accordance with the rules framed by the Government under the Cochin Abkari Act (I of 1077) and published in the Travancore-Cochin Gazette dated 2nd May 1950 at page 435 and subsequent pages. One of the conditions subject to which the auction was held was that the place selected by the highest bidder for carrying on the business will have to be approved by the Government. For this purpose a description of the site at which the business is proposed to be carried on will have to be submitted within the prescribed period and the Board of Revenue will decide whether the site is suitable for the purpose. If the Board decides that it is not, then the business cannot be carried on in that place.
3. Naturally to enable the Board of Revenue to consider the various aspects of the question, it will have to devote time and attention to the application and to the objections, if any, preferred by people in the neighbourhood and subordinate officers of Government. There are certain rules for the guidance of people like the appellant which are to be found in the rules framed by the Government. For example, within a municipal area the distance between two toddy shops should not be less than 1/2 a mile. In a rural area the distance should not be less than one mile. The shop should not be located near a public school or a place of public resort or a place of worship or a public market. To enable a person like the appellant to begin his business as early as possible and not to be kept in suspense, there is an emergency provision according to which a temporary license can be obtained by him which can be granted by the Assistant Commissioner of Excise and which will remain in force for one month. During the period of
that month, he can carry on his business temporarily in a place that is chosen by him and approved by the Assistant Commissioner. After the expiry of the month, a permanent license will be issued to him. In that permanent license, the place where the business will be carried on will be specified. That need not necessarily be the place to which the temporary license applied. The place of business under the temporary license is, as already stated, only subject to the approval of the Assistant Commissioner, but the place of business under the permanent license has to be approved by the Board of Revenue which is in no way bound by the selection made by the Assistant Commissioner as an emergency measure. Even after the permanent license is granted to a vendor, if there are objections to the place where the business is being carried on by him, the Board of Revenue can review the situation and give a direction to the vendor to move to a more suitable place of business. In the present case, the petitioner appellant has not yet been given a permanent license. He has been carrying on business in a
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