T K SAMBASIVAN Vs. STATE OF KERALA

JUDGEMENT

(1.) ALL these appeals arise out of the interim order passed by the learned single Judge on 20th March, 2007 relating to the Abkari Policy of the Government for the year 2007-08. Learned single Judge interfered with the Abkari Policy in so far as it identifies certain Co-operative Societies with reference to the Abkari Ranges for being given the preference, which according to the learned single Judge, is irrational and unconstitutional. Learned single Judge also felt that the yardstick on the basis of which SRO 227 and the provisions in clause 2(iii) of GO(MS) 40 were issued is illusory. Learned single Judge also held that petitioners have demonstrated a very strong prima facie case that GO(MS) 34 as amended by GO(MS) 40 is unconstitutional and the decision reflected in SRO 227 is contrary even to the amendments sought to be made as per SRO 224. With regard to the preference for those licensees who had conducted shops for the previous three years, learned single Judge felt that is not open for the petitioners to contend that persons who may not have experience for the three immediately preceding years but who may have such experience during the years that preceded that period should also be considered. Contention raised on that ground was rejected. Learned single Judge therefore stayed the operation of the decision contained in SRO 227 and the similar decision in GO(MS) 34 as amended by GO(MS) 40. State of Kerala and Commissioner of Excise have filed appeals to the extent they are aggrieved by the order of the learned single Judge. WA. Nos. 754 and 763 of 2007 were preferred challenging that part of the order rejecting their contention of giving preference to those who had conducted shops for the previous three years. Learned Advocate General appearing for the State submitted that the learned single Judge was not justified in interfering with the Government's Abkari Policy and holding that GO(MS) 34 as amended by GO(MS) 40 is unconstitutional and the decision reflected in SRO 227 is contrary even to the amendments sought to be made as per SRO 222. Learned Advocate General submitted that the learned single Judge was not justified in holding that State did not have sufficient materials before formulating the Abkari Policy for the year 2007-08. Learned Advocate General submitted that the Government have taken a Policy decision to give privilege for conducting toddy shops in various districts to Toddy Workers and Toddy Tappers Co-operative Societies in the State in a phased manner. Learned Advocate General referred to the policy decision of the Government announced for the year 2001-02 whereby the exclusive privilege for conducting toddy shops was entrusted to Toddy Shop Workers and Toddy Tapers Co-operative Societies in the State. Policy was challenged before a Division Bench of this court in OP. Nos. 5962 of 2001 and connected matters. Division Bench repelled that challenge. Learned Advocate General also submitted that the privilege for conducting toddy shops was entrusted to Co-operative Societies in the whole of Kannur and Kozhikode Districts and also in three Ranges each in Kasaragode and Ernakulam Division. Further, learned Advocate General submitted that while giving that exclusive privilege to Co-operative Societies, the State Government wanted to give it to societies which functioned well during the year 2001-02 and made profit. In order to substantiate his contention reference was made to Ext.R1(b). Learned senior counsel appearing for some of the respondents Sri.Kurian George Kannamthanam and Sri. George Poonthottam supported the finding of the learned single Judge and stated that the Government had framed norms for the Abkari Policy without making any study or any other materials. Counsel submitted, the materials were collected only after challenge was made about the illegality of the Abkari Policy. Learned counsel also submitted that though two letters dated 2-3-2007 and 6-3-2007 were issued by the Excise Commissioner to the Government and referred to in GO(MS) 34, those letters would not be any assistance and totally unrelated to the subject matter of GO(MS) 34. Learned counsel also submitted that Government had not made study or considered any material as to whether other societies had made profit during the year 2000-01.Counsel also submitted that some of the societies are involved in various crimes under the Abkari Act as well as under the NDPS Act and therefore there is justification in granting privilege for conducting toddy shops to those societies. Counsel submitted, Government have acted arbitrarily and mala fide and societies at Kannur, Calicut as well as some of the Ranges of Ernakulam and Kasaragod Districts were included with ulterior motives. Learned counsel also referred to the Kerala Abkari Shops Disposal (Amendment) Rules, 2007 as well as the definition clause Rule 2(na) and submitted that the definition clause has a goby vide SRO 227/07 by reserving right to Co-operative Societies constituted with membership of 51 members of Toddy Shop Workers and Toddy Tappers and registered with the Toddy Workers Welfare Fund Board. Senior counsel also submitted that the Rules have come into force only from 1st April, 2007 and even before that societies were identified with illegal and mala fide intention. According to the Government, grant exclusive privilege for conducting toddy shops in the State of Kerala to Toddy Shop Workers and Toddy Tappers Co-operative Societies for the Abkari year 2001-02 was considered by a Division Bench of this Court in a a batch of writ petitions vide OP. Nos. 5962 of 2001 and connected matters. This court upheld the policy of the Government for the year 2001-

(2.) THIS court held as follows: