(1.) Petitioners are licensees of toddy shops in Ernakulam Range. Petitioners in O.P. No. 11593 of 1999 bid in auction toddy shop Nos. 1 to 72 and 119 to 128 of Ernakulam Excise Range for the year 1999-2000. Petitioner in O.P. No. 11840 of 1999 bid in auction toddy shop Nos. 1 to8, 10 to 16, 49, 50 and 52 to 86 of Angamaly Range under the Ernakulam Excise Division. They applied for Toddy Depot Licence. Application submitted by the petitioners in O.P. No. 11593 of 1999 was rejected by the Assistant Excise Commissioner vide order dated 7.5.1999 stating that toddy depot licence could not be granted since they applied for toddy depot licence in a site situated within the Cochin Corporation. Request made by the petitioner in O.P. No. 11840 of 1999 was also not entertained by the excise authorities on the ground that he applied for toddy depot licence at a site situated within the Angamaly Municipality. According to the department, as per condition No. 11 of Terms and Conditions of licence a toddy depot shall not be located in Municipalities or town or within two miles of the boundaries of any range or ranges for which the depot is sanctioned. Counsel for the petitioners submitted that the said condition is illegal and arbitrary. Counsel referred to condition 2 of the Terms and Conditions of licence which says that the toddy depot shall be established in the central place in the tapping area enroute to the toddy shops. Counsel for the petitioners submitted that condition Nos. 2 and 11 are contradictory and unless permission is given to locate the depot within the Municipality or Corporation limits condition No. 2 could not be complied with.
(2.) I do not find any force in the contention of counsel for the petitioners. Toddy Depot Licence Rules were framed by the Government of Kerala by notification, G.O.Rt. No. 288/65/Rev. dated 15.2.1965. Scope of the said rules came up for consideration in Ayyappan v. Asst. Excise Commissioner, 1998 (2) KLT 849 . This Court held that there is an element of discretion to the authorities to grant the toddy depot licence or not, depending upon variety of factors. Toddy Depot Licence Rules say that the toddy depot licence shall be issued in the form appended and subject to the conditions mentioned therein. Therefore, the conditions mentioned in the toddy depot licence form part of the Rules. The Toddy Depot Licence Rules and the relevant terms and conditions of the licence are extracted below:
(3.) I am of the view that the contention of counsel for the petitioners that by virtue of condition No. 2 toddy depot shall be established in a central place in the tapping area enroute to the toddy shops, and consequently they are entitled to locate the depot within a Municipality, Corporation or town cannot be sustained. It is for the petitioners to find out central place in the tapping area enroute to the toddy shops, but the same cannot be located within a Municipal area or Corporation area, or the town area, as the case may be. Since petitioners participated in the auction with open eyes and agreed to comply with terms and conditions, they cannot now contend that the action of the excise authorities in refusing to issue depot licence at a site within the Municipal area, or Corporation limits is illegal. Petitioners are estopped from contending so.