Balakrishnan Nair, J.

W.A.No.2003/2006:

The writ petitioner is the appellant. The respondents herein were the respondents in the Writ Petition. The point that arises for decision in this case is regarding the correctness of the interpretation to Rule 5(2)(a) of the Kerala Abkari Shops Disposal Rules, 2002 (hereinafter referred to as "the Rules"), as it stood in the year 2002-03.

2. The brief facts of the case are the following: The appellant had run six toddy shops during the year 1996-97 and three shops each during the years 1997-98, 1998-99, 1999-2000 and 2000-01. During the year 2002-03, the Government framed a policy to give preference to persons, who run toddy shops earlier, in the matter of grant of licence to run toddy shops. The norm prescribed for the same was that the applicant should have run not more than three toddy shops in any of the abkari years between 1996-97 and 2000-01. The appellant thinking that he is a person qualified in terms of the Rules, submitted his application. It was accompanied by Ext.P1 certificate issued by the 1st respondent Circle Inspector of Excise, Palakkad, stating that the appellant has conducted toddy shop Nos.117, 118 and 119 of Palakkad Excise Range during the year 1999-2000. In the application submitted by him, there was a query in column 13 thereof, calling upon him to state whether he has conducted not more than three shops in any year between 1996 and 2001. The appellant answered "yes". He also mentioned the toddy shops he run in Palakkad Range. The auction of toddy shops for the financial year 2002-03 was held on 24.2002. The appellant was the successful bidder for T.S.No.37 of Chittur Excise Range. Immediately thereafter, the provisional allotment of that shop in his favour was cancelled by the Excise Commissioner by Ext.P5 order dated 26.4.2002. Not only the provisional grant in his favour was cancelled, but the annual rental of Rs. Four lakhs deposited by him was ordered to be confiscated. The aggrieved appellant challenged that order before this Court. The said Original Petition was disposed of by Ext.P6 judgment. The learned Single Judge did not interfere with the cancellation of the grant, but quashed the direction to confiscate the kisth amount paid by him. Though the appellant challenged that judgment by filing W.A.No.1497/2002, the said decision was affirmed by the Division Bench by Ext.P7 judgment. Later, the State filed an appeal, challenging Ext.P6 judgment to the extent it interferes with the forfeiture of the kisth amount paid by the appellant. That appeal was allowed and the 5th respondent Excise Commissioner was directed to reconsider the matter with notice to the appellant. The Excise Commissioner, after hearing the appellant, passed fresh orders, a copy of which is produced as Ext.P9. The Commissioner found that the appellant mis-represented regarding the running of more than three shops during the year 1996-97 and therefore, the action taken to confiscate the kisth amount was found correct. The writ petition was filed challenging Ext.P9 and also seeking consequential reliefs.

3. The learned Single Judge called for the records, perused the same and found that the answer given by the appellant in column 13 of his application, a specimen of which is produced as Ext.P4, was "yes". It was also found that the appellant had mentioned about two shops in Palakkad Range, run by him. Finding that the above action of the appellant amounted to suppression of material facts, the Writ Petition was dismissed. Hence this appeal.

4. The learned counsel for the appellant Mr.M.G.Karthikeyan submitted that the rule which provided for preference was vague. It was not clear whether the running of more than three shops in any one of the years between 1996 and 2001 will act as a disqualification. In other words, the rule did not give fair warning to a person of reasonable intelligence. The competent authority also certified that the appellant is eligible, as evident from