IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933 WA.No. 1722 of 2011() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.24796/2011 Dated 12/10/2011 .................... APPELLANT(S): PETITIONER ------------------------ THE KASARAGOD TODDY TAPERS AND SHOP WORKERS CO-OPERATIVE SOCIETY LTD, NO.S.396 MUNNAD PO, VIA CHENGALA, KASARAGOD DIST PIN 671 541 REPRESENTED BY E.MOHANAN, SECRETARY. BY ADV. SRI.M.S.IMTHIYAZ AHAMMED SRI.SHIRAZ ABDULLA SRI.JOJO PAPPACHAN RESPONDENT(S): RESPONDENTS -------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT EXCISE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF EXCISE EXCISE DEPARTMENT, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR COLLECTORATE, KASARGOD DISTRICT. 4. THE DEPUTY COMMISSIONER EXCISE DEPARTMENT, EXCISE DIVISION KASARGOD DISTRICT. 5. K.G. SASIKUMAR, S/O. GOVINDAN, ANAKKAL, SHAKARAMPADY.P.O, KARIVEDAKAM VILLAGE, KASARAGOD DISTRICT. 6. K.J.THOMAS, S/O. JOSEPH, KALLOOR HOUSE, PADUPPU SANKARAMPADY P.O. KARIVEDOKAM VILLAGE KASARAGOD DISTRICT 671 541 7.P.MANI, S/O KUNHIRAMAN NAIR ADUKATHIL, MUNNAD P.O. HENGALA VIA, KASARAGOD DISTRICT 671 541 BY GOVT.PLEADER SMT.ROSE MICHAEL (R1 TO R4) BY SRI.T.A.SHAJI (R5 TO R7) THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 11/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & K. HARILAL, JJ. ------------------------ W.A.No. 1722 OF 2011in W.P.(C) No.24796 of 2011 ------------------------ Dated this the 11th day of November, 2011 JUDGMENT Pius C.Kuriakose, J. Under challenge in this writ appeal preferred by the petitioner in W.P.(C) No.24796/2011 is an interim order passed by the learned Single Judge. The writ petition was filed by the appellant seeking a direction to the respondents 1 to 4 to give the petitioner preference in the matter of privilege of vending toddy in the various toddy shops within the area of the concerned Excise Division Office. There was another prayer that the amendment of the Kerala Abkari Shops Disposal Rules 2002 which gives preference to persons who had conducted the toddy shops during the year 2006 - 07 in the matter of allotment of toddy shops be quashed. 2. The learned Single Judge on considering I.A. No.15657/2011 filed by the appellant/writ petitioner passed an interim order on 29/9/2011 directing the official respondents to keep in abeyance all further proceedings for allotment of toddy W.A..No.1722/2011 2 shops in favour of respondents 5 to 7(who were claiming preference in the matter of allotment of toddy shops on the basis of the amended rule which was under challenge in the writ petition) for a period of one week. The above interim order was extended by 10 days. By the impugned interim order, the learned Single Judge has vacated the above interim order. 3. In this writ appeal various grounds are raised challenging the impugned order. Sri.Shiraz Abdulla M.S. learned counsel for the appellant addressing submissions on the basis of the various grounds, highlighted that the auction was conducted adhering to Rule 5 (9) of the Kerala Abkari Shops Disposal Rules 2002 which was the Rule under challenge in the writ petition. There was grave irregularity about the manner in which the officer concerned conducted auction/sale. Had the shops at Bandadukka been taken up first then the appellant petitioner would have been in the category of eligible applicants. Even though the appellant was eligible to be considered for the allotment of shops at Bandadukka the most profit making of the three shops, what was done by the officer who conducted the auction was to apply the Rule under challenge and allot the W.A..No.1722/2011 3 same to respondents 5,6 and 7. By doing so, the main relief in the writ petition for quashment of Rule 5 (9) has been rendered infructuous. 4. Submissions of Mr. Shiraz Abdulla were resisted by Sri.T.A.Shaji learned counsel for respondents 5,6 and 7. Mr.Shaji submitted that so long as the Rule stands, the auction conducted by the officer cannot be faulted. Only if the writ petition is allowed in full and the Rule is struck down, the appellant can aspire for allotment of the shop at Bandadukka. Smt.Rose Michael learned Government Pleader would support the submissions of Mr.Saji. 5. We have given our anxious considerations to the rival submissions addressed at the Bar. As already stated, the writ appeal is directed against an interim order. It is not disputed before us that as per the existing provisions of the Kerala Abkari Shops Disposal Rules nobody is entitled to get licence for toddy shop in more than two groups. Admittedly, the appellant has been alloted the toddy shop in Kasaragod Range as well as Badiadukka Range. May be the appellant is right in submitting that the profit which can be expected from the shop in these two W.A..No.1722/2011 4 ranges will be minimal when compared to the profit which the appellant could have derived had the shop at Bandadukka been alloted to him. But the officer who conducted the auction was obliged to follow Rule 5 (9) of the Kerala Abkari Shops Disposal Rules which obligated him to give preference to respondents 5,6 and 7. We do not find any warrant for interference. We dismiss this appeal in limine. However, we make it clear that the allotment of the shops at Bandadukka to respondents 5,6 and 7 will be subject to the final decision to be taken in W.P.(C) No.24796/2011. If so advised, the appellant can seek amendment of the writ petition. PIUS C.KURIAKOSE,JUDGE K. HARILAL, JUDGE. dpk W.A..No.1722/2011 5