GOPALAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The writ petitioner is the appellant. The point that arises for decision in this appeal is concerning the construction to be placed on Clause (i) of Sub-rule (3) of Rule 5 of the Kerala Abkari Shops Disposal Rules, 2002 (hereinafter referred to as "the Rules").

(2.) The brief facts of the case are the following:

(3.) We heard the learned Counsel for the appellant and also the learned senior Government Pleader for the respondents. In view of the proceedings pending before the learned Sessions Judge, the appellant is not claiming preference under Section 5(1)(a) of the Rules. But, he claims, he is eligible to participate in the auction, if a proper construction is placed on Clause (i)of Sub-rule (3)of Rule 5 of the Rules. According to him, he can be said to be charged with an offence only when the Sessions Court frames charge against him after preliminary hearing. The possibility of discharge of the accused by the learned Sessions Judge cannot be ruled out. In this case, the charge is yet to be framed. Only after framing the charge, it can be said that prosecution proceedings are pending against him. In view of the above legal position, the appellant submits, the disqualification under Sub-rule (3) of Rule 5 of the Rules is not attracted in this case. The appellant relied on the decision of a learned Single Judge of this Court in Vijayan v. Excise Commissioner, 2002 3 KerLT 646, in support of his submissions.