Introduction:

The issue in this writ petition concerns the statutory benefit of `preference' to an exonerated licencee. To be precise, once an erstwhile licencee is exonerated of an abkari offence, at what specific stage can he claim his preferential right to licence? Should he wait until the end of the licence period of the subsequent licencee, whatever be the length of the licence period?

Facts:

2. The 1st petitioner and the 2nd petitioner's deceased husband along with the 7th respondent were the licensees of Toddy Shop Nos. 54 to 59 in Group No. X of Erattupetta Excise Range under Kottayam Division. It was for the abkari year 2012- 13.

3. On 19.01.2012 the excise authorities took a sample of toddy from the petitioners' Shop No. 55 and subjected it to chemical analysis. On the allegation that starch had been found mixed in the toddy, the Excise Inspector, Erattupetta Range, registered Crime No. 52/2012 against the licencees: the 1st petitioner, the 2nd petitioner's husband, and the 7th respondent. As a corollary, the authorities have cancelled their toddy licence, too.

4. In the subsequent auction, the 6th respondent, who is none other than the 7th respondent's brother, emerged successful. He is currently the licencee. Thus, no Sherlock Homean acumen is required to realise why the 7th respondent, one of the joint licencees, has not joined the fray along with the petitioners in staking a claim for the preferential right.

5. The crime was tried before JFCM, Erattupetta, in C.C. No.833/2013. But it ended in a clean acquittal, as is evident from Ext.P1 judgement, dt.06.08.2015. To employ the phraseology of Abkari Rules, I may say the licencees were exonerated.

6. Disqualification lifted, two of the three erstwhile licencees--of course, one as a legal heir--have staked their claim for the preference in the new Abkari Year beginning from 1st April, 2016. Fortified by Rule 5(1)(a) of Abkari Shops Disposal Rules 2002 (`the Rules'), the petitioners have submitted Ext.P3 representation to the 2nd respondent, in furtherance of their claim.

7. When their representation bore no fruit, the petitioners have filed this writ petition claiming their preferential right to licence as has been provided under Rule 5 (1) (a) of Abkari Shops Disposal Rules, 2002.

8. The petitioners' claim for preference seems to have been negated by the authorities because the amended Rule 7(26) of the Rules, notified vide G.O. (P) No.33/2014(TTD), dated 22-2- 2014, has conferred on the subsequent licencee an uninterruptible right for three successive years from initial grant of the licence. In other words, despite their exoneration, the petitioners should wait till the licence period of the subsequent licencee comes to an end. Summary of Submissions:

Petitioners':

9. In the above context, the Sri K. Reghu Kottappuram, the learned counsel for the petitioners has contended that the amended Rule 7 (26) of the Rules is not a permissible piece of legislation: It guarantees and extends the privilege for vending toddy in advance for successive years receiving no consideration like kist or rental.

10. Referring to entry 8 of list II of 7th Schedule to the Constitution of India, the learned counsel contends that sale of intoxicating liquor under the said entry is actual sale but not a putative or projected one. According to him, actual sale is characterised by remittance of the sale consideration at the very threshold. As per the amended Rule 7 (26), the sale for further years, insists the learned counsel, is nothing but a future transaction--contingent and uncertain. It is anticipatory and, therefore, not an actual sale.

11. The learned counsel thus encapsulates his constitutional contentions that the amended Rule is repugnant and excessive of the delegated legislative power of the Executive.

Respondents':

6th Respondent's:

12. Sri Karthikeyan, the learned counsel for the 6th respondent, the subsequent licencee, has submitted that the 6th respondent initially got the licence fo