2014 (4) TMI 192 - HC - Indian Laws

Application for preferential right - Cancellation of license - Preference under Rule 5(1)(a) of the Kerala Abkari Shops Disposal Rules, 2002 - Held that - incontestably, even after the said amendment the condition for grant of privilege of vending toddy in respect of those licensees who had conducted the shops during 2002-03 and subsequent years and whose licenses were cancelled due to registration of abkari cases falling under latter limb of Rule 5(1)(a) of the Rules and subsequently exonerated by the courts remains as such without any change. In such circumstances, I am of the view that the reasons in Ext.P5 viz., registration of an abkari case and consequential cancellation of the license should not have been assigned as a reason for rejecting his claim for preferential right under Rule 5(1)(a) of the Rules owing to his acquittal as per Ext.P1 judgment. In the circumstances, the said rejection was based on a non-existent ground and therefore, the petitioner s claim for preference calls for a fresh consideration. Accordingly, Ext.P5 is set aside. Consequently, there will be a further direction to the fourth respondent to restore Ext.P3 application and consider the claim of the petitioner for preference in terms of Rule 5(1)(a) of the Rules and pass appropriate orders thereon taking into account whether the petitioner satisfies the requisite conditions for preference in terms of the latter limb of Rule 5(1)(a) of the Rules - Decided in favour of applicant.

Summary

Issues:
1. Rejection of application for preference under Rule 5(1)(a) of the Kerala Abkari Shops Disposal Rules, 2002.
2. Interpretation of Rule 5(1)(a) of the Rules in the context of a specific case.
3. Consideration of the impact of a Government Order on the application process.
4. Reinstatement of the petitioner's application and further directions for consideration.

Analysis:
1. The petitioner, a licensee of a Toddy Shop, had his license cancelled due to a criminal case but was later acquitted. He applied for preference under Rule 5(1)(a) of the Kerala Abkari Shops Disposal Rules, 2002. However, his application was rejected based on a Government Order, which the petitioner argued was inapplicable to his case. The High Court examined the relevant provisions and found that the rejection was based on a non-existent ground, as the conditions for preference under Rule 5(1)(a) remained unchanged even after the Government Order. The Court held that the rejection was unjustified, and the petitioner's claim deserved a fresh consideration.

2. The Court specifically analyzed Rule 5(1)(a) of the Rules, which provides for preference to licensees who conducted toddy shops in preceding years and were exonerated by the courts after license cancellation. The judgment emphasized that the conditions for preference, including cases of license cancellation and subsequent exoneration, were not altered by the Government Order. Therefore, the petitioner's right to preference under this rule was upheld, and the rejection of his application was deemed invalid.

3. The Court scrutinized the impact of the Government Order on the application process. It noted that the Order did not amend the relevant part of Rule 5(1)(a) concerning license cancellation and exoneration. The Court clarified that the rejection based on the Order was unfounded, as the conditions for preference remained unchanged. Consequently, the Court set aside the rejection and directed the authorities to reconsider the petitioner's claim in light of the unaltered rule provisions.

4. In conclusion, the High Court allowed the petitioner's plea, setting aside the rejection of his application for preference. The Court directed the authorities to reinstate the application and conduct a fresh assessment of the petitioner's eligibility for preference under Rule 5(1)(a) of the Kerala Abkari Shops Disposal Rules, 2002. The judgment emphasized the need for a fair and accurate consideration of the petitioner's claim, ensuring compliance with the rule provisions and disregarding the erroneous basis of the initial rejection.