Balakrishnan Nair, J.

W.A.No.513/2010:

1. The point that arises for decision in this appeal is, on stay of prosecution of a criminal case registered against an abkari contractor under Section 57(a) of the Kerala Abkari Act (hereinafter referred to as"the Act"), whether it can be taken that no abkari case is registered against him for the purpose of sub-rule (1)(a) of Rule 5 of the Kerala Abkari Shops Disposal Rules, 2002 (hereinafter referred to as "the Rules"). The respondents in the Writ Petition are the appellants.

2. The brief facts of the case are the following: The respondent is the licensee of the toddy shops in Group I of Thiruvananthapuram Excise Range. Samples of toddy taken from T.S.No.1 under the said Range on 3.5.2007 was found to contain 8.83% volume by volume of ethyl alcohol. The sale of toddy containing that much volume of ethyl alcohol was a violation of Rule 9(2) of the Rules. The said conduct of the licensee disclosed offences under Sections 57(a) and 56(b) of the Act and so, Crime No.34/2007 was registered against the respondent for the said offences. The respondent challenged the rules concerning the strength of permissible ethyl alcohol in coconut toddy and also the prosecution proceedings before this Court. That Writ Petition was dismissed by the learned Single Judge. On appeal, this Court dismissed the Writ Appeal also, as per the decision reported in Komalan v. State of Kerala [2009 (2) KLT 744]. The respondent moved the Apex Court and the Hon'ble Supreme Court by Ext.P1 order, granted stay of prosecutions concerning violations committed by him prior to the filing the Writ Petition.

In view of the abkari policy notified by the Government for the year 2010-11, the respondent apprehended that his licence may not be renewed. So, the Writ Petition was filed, seeking the following reliefs:

"(i) declare that the petitioner is entitled to get the preferential right for the allotment of the toddy shops in Group No.1 in Thiruvananthapuram excise range as per Rule 5(1)(a) of the Rules, 2002 in view of Ext.P1 order of the Hon'ble Supreme Court.

(ii) declare that the petitioner is entitled to get preference as per Rule 5(1)(a) of the Rules, 2002 without taking into account the registration of case, C.R.No.34/2007 by the Excise Range, Thiruvananthapuram since it is stayed by the Hon'ble Supreme Court vide Ext.P1;

(iii) issue a writ of mandamus or other appropriate writ, order or direction commanding respondents to give preferential right to the petitioner for the allotment of the toddy shops in Group No.1 in Thiruvananthapuram excise range for the abkari year 20102011 without taking into account the registration of CR No.34/2007 registered by the Excise Range, Thiruvananthapuram.

" The following interim relief was also sought:

"For the reasons stated in the accompanying memorandum of writ petition and affidavit, it is most humbly prayed that this Hon'ble Court may be pleased to pass an order directing the respondents to give preferential right to petitioner for the allotment of the toddy shops in Group No.1 in Thiruvananthapuram excise range for the abkari year 2010-2011 without taking into account the registration of CR No.34/2007 registered by the Excise Range, Thiruvananthapuram pending disposal of the above writ petition."

3. Going by the above prayers, it is clear that the respondent was mainly concerned with apprehended denial of preference to him in the matter of grant of privilege to vend toddy under Rule 5(1)(a) of the Rules. The learned Single Judge allowed the interim relief by issuing the following order:

"Notice. Having regard to the fact that by Ext.P1 order the Apex Court has granted stay of prosecution against the petitioner and taking into account the view taken by this court in paragraph 13 of Ext.P2 order and also the fact that the petitioner's licences have not been cancelled till date, there will be an interim order as prayed for. However, it is clarified that anything done on