Suresh Babu vs The State of Kerala and Others

Antony Dominic, J.—The issue raised in these writ petitions are common and therefore, the cases were heard together and are being disposed of by this common judgment.

Petitioners were contractors of toddy shops. Insofar as the petitioner in W.P.(C).9001/2010 is concerned, he and another person were the accused in Crime No. 142/2003 registered u/s 55(a) of the Abkari Act. The case was charge sheeted as S.C.280/2004 and after trial, by Ext.P1 judgment rendered on 14.11.2005, the accused were acquitted.

Insofar as the petitioner in W.P.(C).9002/2010 is concerned, he was one of the accused in Crime No. 34/2004, registered u/s 55(a) of the Abkari Act. The case was charge sheeted and was numbered as S.C.21/2009 before the Sessions Court, Palakkad, Ad hoc III (Fast Track). The Court by Ext.P1 judgment rendered on 7.12.2009, acquitted the petitioner.

In these writ petitions the claim of the petitioners is that they having been exonerated in the Criminal cases, are entitled to preference as contemplated under Rule 5(1)(a) of the Kerala Abkari Shops Disposal Rules, 2002. Petitioners also submit that the amendment to the Rules confining preference under Rule 5(1)(a), only to the licensees who conducted toddy shops during the year 2009-10, effected by notification dated 12.3.2010 is illegal.

Going by the Rule as it now stands, only those licensees who have conducted toddy shops during the year 2009-10 are eligible for preference under Rule 5(1)(a) of the Disposal Rules. Admittedly petitioners have not conducted toddy shops during the abkari year 2009-10. Therefore, as per the Rule, petitioners are ineligible for preference.

Learned Counsel for the petitioners submit that Rule confining preference to the existing licensees is illegal. According to him, if preference is to be given, that should be done without confining the operation of the Rule to any particular year. It is also stated that this is all the more so in cases like that of the petitioner where they were charge sheeted and were deprived of their opportunity to conduct toddy shops.

However, I am not able to accept this contention. The Rule as now amended reflects a policy decision of the State and none has any fundamental right to carry on trade in liquor. Even during the previous years, preference was available only to those who have conducted toddy shops in the years specified in the Rule as it stood then and not to all without any limitation regarding the year in which shops were conducted. If the Rule making authority has decided to confine preference to the licencees of any particular year, there cannot be any objection in doing so. That apart, petitioners have no case that confining the preference to 2009-10 is in violation of any of the provisions of the parent statute viz., the Abkari Act. Therefore, this rule is not in violation of any fundamental right of the petitioners nor is it in violation of the provisions of the Abkari Act. Then the only other ground on which a piece of subordinate legislature can be challenged is arbitrariness, which also is totally absent in this case. In such circumstances, I see no merit in the challenge raised against the amendment to the Rule.

Having regard to the fact that going by the Rule as it now stands, petitioners are ineligible for preference claimed by them, I see no merit in these writ petitions and they are accordingly dismissed.