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TMI Blog2016 (4) TMI 974X X X X Extracts X X X X X X X X Extracts X X X X ..... ps, on 24.8.2013 a squad of the Excise Department conducted a raid and recovered from a building nearby, which was in his possession 1950 litres of toddy which is alleged to be not fit for human consumption. Immediately, Crime No:72/2013 was registered alleging an offence under Section 55(a) & (i) of the Abkari Act. Ext.P1 in the writ petition is the crime and occurrence report. The fourth respondent challenged the proceedings initiated against him before this Court in Crl.M.C.4299/13 under Section 482 of the Code of Criminal Procedure. The said writ petition was admitted by this Court and Ext.P2 interim order staying all further proceedings pursuant to the registration of the crime, including suspension/cancellation of licenses of the toddy shops in the said group was issued. The said interim order of stay is still in force. 3. In the above circumstances, a public auction for sale of the privilege of vending toddy in the toddy shops in Group No:3 of Kunnamkulam Excise Range, Thrissur district, during the period 2014-17 was conducted on 5.3.2014. The appellant participated in the said auction and became the highest bidder. Therefore, a provisional allotment of the privilege was ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the learned Single Judge has on a consideration thereof, sustained the same. Accordingly the writ petition has been dismissed. 5. According to the Senior Counsel Shri. S.Sreekumar who appears for the appellant a huge quantity of toddy had been seized, from a building in the possession of the fourth respondent. A crime was also registered in respect of the said incident under Section 55(a) & (i) of the Abkari Act. In view of the registration of the crime, a fact that is not disputed by any of the parties the fourth respondent has lost his right to claim preference under Rule 5 of the Rules. The only requirement for application of the said rule was the registration of a crime. The only exception under the Rule was with respect to an offence under Section 56 of the Act. In the present case since an offence under Section 55 was alleged the fourth respondent had lost his privilege. It is further contended that, though Ext.P2 interim order was granted by this Court, a perusal of the order shows that, a specific prayer made by the fourth respondent for a direction to give preferential claim in the matter of allotment/renewal/extension of toddy shops in the particular group, was not gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis thereof. Accordingly, cancellation or revocation of the license issued to the fourth respondent on the basis of the said crime has also been stayed by this Court. In view of the interim order passed by this Court, the fourth respondent was permitted to conduct the toddy shops up to the end of his license period. Therefore, there was no justification for the denial of the preference to which he was legitimately entitled. In answer to the contention that this Court had in Ext.P2 declined to grant a declaration that the fourth respondent would be entitled to preference, it is pointed out that a similar contention has been rejected by this Court in Ext.P8 judgment. According to the learned counsel, since all further proceedings on the basis of the crime that has been registered have been stayed and the cancellation of his license kept in abeyance, his right for being given preference has revived. No specific declaration to the said effect was necessary. The above aspect has been correctly taken note of by the first respondent. Consequently, according to the counsel, there is no infirmity in the impugned order. The learned Single Judge was therefore fully justified in dism ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent is entitled to claim privilege in the matter of grant of license to conduct the toddy shops during the abkari year commencing from 1.4.2014 is the disputed question. It is an admitted fact that, without extending preference to the fourth respondent, a regular auction of the shops was conducted on 5.3.2014, in which the appellant herein became the successful bidder. Therefore, the shops were provisionally allotted to him. However, the said provisional allotment has been cancelled by Ext.P10 order. 9. Rule 5(1)(a) of the Kerala Abkari Shops Disposal Rules, 2002 reads as under:- "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 has conducted toddy shops during the year [2013-14], provided no Abkari case is registered against him other than under Section 56 of the Abari Act. The licensees who has conducted the shops during [2013-14] and whose licenses cancelled due to registration of Abkari cases and subsequently exonerated by the Courts and those Licensees who could not complete the preceding three years on account of the closure of shops shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Rule 5(1)(a) of the Rules. It is the said infirmity that has been set right by Ext.P10. 11. In the above context, we notice that the fourth respondent had challenged the auction that was conducted, in WPC 6059/2014 before this Court. The appellant herein had got himself impleaded in the said writ petition. He had put forward his contentions in the said writ petition also. Having considered the rival contentions this Court disposed of the same with the following directions:- "The Excise Commissioner, the common first respondent in these writ petitions, shall issue notice of hearing to the petitioners as also the party respondents before passing orders invoking the powers under Rule 5 (15) of the Rules in respect of the aforementioned shops and pass orders only after considering the question of entitlement of the petitioners for preferential right under Rule 5(1)(a) of the Rules and subject to such decisions. It will be open to the party respondents to raise all their contentions resisting the claim of the petitioners for preferential right under Rule 5(1)(a) of the Rules, before the first respondent. Orders in the matter shall be passed expeditiously, at any rate, within a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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