IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 WP(C).No. 19243 of 2010(E) -------------------------- PETITIONER(S): --------------- P.MANILAL, CHECKALATHEVAYIL, PUTHEN SANKETHAM DESOM, KOYIVILA, THEVALAKKARA VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S): --------------- 1. THE SECRETARY, TAXES (G) DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE EXCISE COMMISSIONER, EXCISE DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. THE DEPUTY EXCISE COMMISSIONER, EXCISE DEPARTMENT, EXCISE COMPLEX, CHINNAKKADA, KOLLAM. GOVERNMENT PLEADER, SMT.K.R.DEEPA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.19243/2010-E ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 22nd day of June, 2010 J U D G M E N T The petitioner herein is seeking for a direction to the respondents to issue a certificate showing preference for participating in the auction in respect of toddy shops in Group No.II, Kollam Range. The petitioner is relying upon the Amendment Rules, namely, the Kerala Abkari Shops Disposal (Amendment) Rules, 2010, Ext.P11. 2. The petitioner was a licensee for the year 2004-05 onwards. For the subsequent years namely, 2007-08 and 2009-10 also he was having licence going by Exts.P2 and P3. For the year 2009-10 going by Ext.P4 certificate, he was entitled for preference. Ext.P4 Preference Certificate shows that the petitioner is entitled to get preference over the privilege of Toddy Shops in Group No.VIII/2010-11 of Kollam Range. Even though Certificate was obtained, he did not participate in the auction conducted. Presently, the shops in Group No.II are to be put in auction in the light of cancellation of the licence. According to the petitioner, going by Ext.P11, even though he was having licence in Group No.VIII, he is entitled for preference to compete for the privilege in Group No.II also. Seeking for a direction to the respondents to issue a certificate W.P.(C). No.19243/2010 -:2:- showing preference for participating in the auction in respect of toddy shops in Group No.II, Kollam Range and apprehending that he will not be issued the certificate asked for, he has sought for various directions in this writ petition. 3. Heard the learned Government Pleader appearing for the official respondents. It is submitted that in the light of the Rule 5(1)(b) of the Kerala Abkari Shops Disposal Rules, 2002, the petitioner will not get a preference as sought for as he was not a licensee in respect of Group No.II where the shop was conducted. The said Rules, namely, Kerala Abkari Shops Disposal Rules, 2002, as it stood before 2009-10, provided for grant of privilege in respect of various licensees who were granted licence before the prescribed year mentioned there. Rule 5 (1)(a) of the Rule reads as follows:- “While giving privilege, preference shall be given to those licensees who has conducted toddy shops during the preceding three years consecutively from 2006-07, 2007-08 and 2008-09, provided no Abkari case is registered against him other than under section 56 of the Abkari Act. The licensees who has conducted the shops during 2002-03 and subsequent years and whose licences cancelled due to registration of Abkari W.P.(C). No.19243/2010 -:3:- 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 also be given preference.” 4. The amended Rules, going by para(2) of the amendment Rules, reads as follows:- “(1) in rule 5,- (i)in sub-rule (1)(a),- (a) in the first sentence, for the words, figures and symbol 'preceding three years consecutively from 2006-07, 2007-08 and 2008-09' the word, figures and symbol 'the year 2009-10' shall be substituted; (b) For the second sentence, the following sentence shall be substituted namely:- 'The licensees who have conducted the shops during the year 2009-10 and whose licences have 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.'” Obviously, the amendment is in respect of Sub-rule (a). According to the learned counsel for the petitioner, going by para(i)(b) of the amendment, the licensees who have conducted the shops during the year 2009-10 will be entitled for preference, even if the auction is in respect W.P.(C). No.19243/2010 -:4:- of shops in a different range. My attention is invited to the explanatory note also. 5. The purport of the amendment is clear from the amended provisions as well as the explanatory note therein. For the first sentence in Rule 5(1)(a) of the Rules having the words, figures and symbol “preceding three years consecutively from 2006-07, 2007-08 and 2008-09” the word, figures and symbol “the year 2009-10” shall be substituted. The second sentence in Rule 5(1)(a) is also amended. Therefore, the entire amendments mentioned above are in respect of Rule 5(1)(a) only and, Rule 5(1)(b) as it stands has not been deleted or substituted. If that be so, the contention raised by the learned counsel for the petitioner that the petitioner is entitled for a Certificate based on Ext.P11 cannot be sustained. It is clear from Ext.P4 Certificate issued in his favour itself that the authority has certified that he is entitled to get preference over the privilege of Toddy Shops in Group No.VIII/2010-11 of Kollam Range. Therefore, the purport of the Rule 5(1)(b) was taken note of while issuing Ext.P4 certificate. In that view of the matter, the direction sought for as such in the writ petition cannot be granted based on the amendments of the Rule 5(1)(a). But, this will not prevent W.P.(C). No.19243/2010 -:5:- the petitioner from participating in the auction if otherwise he is eligible. The writ petition is dismissed. No costs. (T.R. Ramachandran Nair, Judge.) ms