Radhakrishnan, J.

Booking of abkari offences under Abkari Act, 1077 except offence under Section 56 would make a licensee ineligible for extension of privilege of vending toddy is the question that has come up for consideration in these cases.

2. Writ petitioners were conducting toddy shops for the year 2003-04 on the basis of the licences issued by the Excise Department in various Ranges. They have applied for the renewal of their licences for the year 2004-05. Requests for renewal of licences were turned down by the Excise Department on the ground that cases were booked against them for various offences under the provisions of the Abkari Act and Rules framed there under. Petitioner in W.P.(C).No.11485 of 2004 was the licensee in respect of toddy shop No.33/03-04 of Kanjirappally Excise Range. Inspector of Excise registered Crime No.6 of 2004 arraying the employee, the petitioner and one Devasia as accused for the offence under section 55 (i) of the Abkari Act. Writ petitioner in W.P.(C).No.11275 of 2004 , was the licensee of toddy shop No.34 of Kuravilangad Range. A case was registered him as crime No.5 of 2000 under section 8 (1) read with section 55 A of the Abkari Act. Writ petitioner in W.P.(C).No.13159 of 2004 was the licensee of toddy shop No. 16/03-04 of Chathannur Range. Crime No.4 77/03 was registered against him by Chathannur Police under section 55(a) of the Abkari Act.

3. Government of Kerala in exercise of the powers conferred under section 18A of the Abkari Act, 1 of 1077 and sub rule 3 of Kerala Abkari Shops Disposal Rules, 2002 issued a notification, G.O.(P) No. 35/2004/TD dated 24th March, 2004 notifying that the period of licence for vending toddy shall be extended or sold for a further period of one year from 1st April, 2004 to 31st March, 2005 subject to the various conditions laid down therein, of which we are concerned with condition No.4 (vii) which reads as follows:

“4. The licensee is eligible for the extension for the extension of privilege of Toddy shops, if;

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(vii) no Abkari offence other than an offence falling under section 56 of Abkari Act, 1 of 1077 is booked against him.”

The auction form notified stated as follows:

Petitioners made requests for renewal of their licence, but the requests were turned down based on condition No.4 (vii) in the notification dated 24th March, 2004 as well as on the basis of first proviso to Rule 3 (1) of the Kerala Abkari Shops Disposal Rules, 2002 since cases were booked' against them. Petitioners are aggrieved by the refusal to renew their licences.

4. Counsel appearing for the writ petitioners Sri K. Gopalakrishna Kurup, K. Reghu Kottappuram and Sri P. B. Suresh Kumar submitted that the action of the department in not renewing the licence on the ground that cases have been booked against them is illegal and the notification dated 24th March, 2004 is inconsistent with Rules 5 (3) (i) and 5 (3) (ii) of the Kerala Abkari Shops Disposal Rules, 2002 and they are ultra vires and liable to be quashed. Counsel submitted notification cannot amend, add or subtract anything from the provisions contained in Rule 5(3) (i) which was enacted by the Government in exercise of the powers conferred under sections 18A and 29 of the Abkari Act 1 of 1077. Counsel submitted Rule 5 (3) (i) and 5 (3) (ii) specifically deals with the eligibility of persons to obtain licences and it is impermissible for the State to impose condition like condition No.4 (vii) by notification which encroaches upon the statutory rules. Counsel submitted only if the licensee is charged with offence relating to illicit liquor or if prosecution proceedings are pending against such individual before a court of law the authorities could deny renewal of licence. Since the licensees have not been charged with any offence relating to illicit liquor and no prosecution proceedings are pending against them the mere fact that excise authorities have booked certain cases against them is not a ground for no