IMPORTANT POINTS :
Rule 9(2) of the Rules pertains to the special conditions applicable to licensees granted privilege of vending toddy in independent toddy shops and states that no toddy other than that drawn from Coconut, Palmyrah or Choondappana palms and on which tree-tax due under the Act has been paid shall be sold by the licensee. All toddy kept or offered for sale shall be natural and conforming to such specifications and complying to such restrictions as may be notified by Government under clause (n) of Rule 2.

Ashok Menon, J.

W.P.(C) No.29524/2017 seeking a writ of mandamus directing the third respondent Circle Inspector of Excise, Irinjalakkuda, to issue preferential certificate provided in Rule 5(2) of the Kerala Abkari Shops Disposal Rules, 2002 (“Rules” for brevity) to the petitioner, and to further direct the other respondents to give preferential right to him during the auction concerning of toddy shop in Group No. IV in Chalakkudy Excise Range, was dismissed by a learned Single Judge vide the impugned judgment dated 29.01.2019. Aggrieved, the petitioner is before us in appeal.

2. The facts in brief:-

Appellant was a licensee in Group No.IV/16-17 of Chalakkudy Excise Range from 18.08.2012, conducting shop Nos.22, 24, 25, 29, 31 and 33.

3. The Sub Inspector of Police conducted an inspection at toddy shop No.31 situated at Pariyaram on 17.03.2017, and seized about 8 litres of illicit arrack stored in the shop, obviously for spiking the toddy sold at the shop. A case was registered as C.R.No.416/2017 against the Manager of the shop for an offence punishable under S.8(1) and (2) of the Act. Consequentially, vide order dated 08.05.2017, the Excise Commissioner cancelled the licence issued to the appellant invoking his powers under S.26 of the Abkari Act (“Act” for brevity) for violation of Rules 5(19), 7(31) and 9(2).

4. The appellant would contend that his preference in the auction of toddy shops for the consequent year could not have been prevented in view of his preferences to run the toddy shops under Rule 5, merely for the reason that an abkari case has been registered against his manager. It is contended that such preference could be denied only in case where an abkari case has been registered against licensee. Rule 5 of the Rules which is relevant for consideration of this appeal is extracted below:-

“5. The Grant of privilege of vending Toddy shall be subject to the following conditions, namely.—

(1)(a) While giving privilege, preference shall be given to those licensees who had conducted toddy shops during the year 2013-2014, provided no Abkari case is registered against him other than under Section 56 of the Abkari Act. The licensees who have conducted the shops during the year 2013-2014 and whose licences cancelled due to registration of Abkari cases and subsequently exonerated by the Court and those licensees who could not complete the year 2009-10 on account of the closure of shops shall also be given preference.”

5. The appellant claims to have an unblemished record in conducting toddy shops and that he has not been involved in any abkari case, and therefore, the act of the authorities denying him the preferential treatment envisaged in Rule 5, is improper.

6. The learned Single Judge did not accept the argument of the learned counsel appearing for the appellant, and held it to be misconceived and observed that the licensee whose licence was cancelled for violation of the Rules, cannot claim any preference under Rule 5 and that it was not necessary that an abkari case be registered against him. The learned Single Judge observed that the intention in giving preference to persons is to enable licensees having unblemished record to conduct toddy shops in a similar manner without violation of the Rules in future as well. Granting preference based on conduct of toddy shops in past is not intended to encourage a violator.

7. We heard Sri. M.G. Karithikeyan, learned counsel appearing for the appellant/petitioner and Sri. Renil Anto, learned Senior Government Pleader appearing for the respondents.

8. The learned Senior Government Pleader would submit that the abkari case registered against the Manager of the abkari shop is still under investigation and final report has not yet been filed and that at any moment the investigating authorities may implicate the appellant as well.

9. The learned counsel appearing for the appellant would submit that the appellant cannot be held responsible of arrack unauthorisedly stored in one of hi