IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931 WP(C).No. 29253 of 2009(B) --------------------------------------- PETITIONER(S): ------------------------ GOPINATHAN, S/O.KUNJUKUTTAN NAIR, MELAZHIKATHU HOUSE, THRITHALA DESOM, PATTITHARA VILLAGE, OTTAPALAM TALUK, PALAKKAD. BY ADV. MR.M.C.JOHN RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT (TAXES) DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. 3. THE DEPUTY COMMISSIONER OF EXCISE, THRISSUR. R1 TO R3 BY GOVT. PLEADER MR.I.V.PRAMOD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.29253 of 2009-B = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 20th day of October, 2009. JUDGMENT “CR” 1.Petitioner, licensee of a toddy shop, challenges Ext.P2 order issued by the Government ordering that toddy shops in the State will remain closed on the first day of all English calender months. It is contended and argued that licences have been issued on the basis of declared Abkari Policy and Rules in consonance thereof and hence, the impugned Government Order interferes with rights under the licence. It is further argued that the Government have merely acted on Ext.P3 judgment and there is no independent application of mind. 2.In Ext.P3 judgment issued in a couple of public interest litigations, among other things, it was WPC29253/09 -: 2 :- held that there is anomaly between the proviso and the main provision contained in the Kerala Abkari Shops Disposal Rules regarding closure of shops. Accordingly, it was held that such anomaly being contrary to the main rule, the Court cannot shut its eyes, as the object of such ban is in public interest. Holding that there can be no discrimination in the sale of IMFL and toddy, it was held that the exemption for toddy shops is not based on any rationale or logic. The Government were accordingly directed to pass orders in the case of toddy shops also. 3.Apart from the fact that the Bench of this Court, in public interest, had issued the aforesaid order, certain other aspects need to be noticed. In the frame work of the Indian Constitution, the right to vend liquor, including toddy, is within the exclusive regulatory privilege of the State. In granting that privilege, the State fixes its norms. A citizen, who may be aggrieved, can project a case of hostile discrimination on the WPC29253/09 -: 3 :- face of law, which is made to regulate the State's modality of dealing with the privilege and the grant of privilege. This principle of law is well settled. If that were so, the power to order closure of toddy shops on any particular day of a calender month will only stand free from criticism because, it, in no manner, discriminates among the toddy shop licensees. There is also no discrimination between the toddy shop licensees and other vendors of liquor in the State of Kerala. Earlier, there was ban on sale of foreign liquor on the first of every calender month. That was only on IMFL outlets and bar hotels. This does not denude the State from exercising its exclusive power in a field unoccupied by statutory provisions and thereby, making a ban, in its wisdom. The fact that it exercised such wisdom following Ext.P3 judgment, makes no difference. 4.For the aforesaid reasons, the challenge to the impugned order fails. WPC29253/09 -: 4 :- In the result, this writ petition is dismissed in limine. Sd/- THOTTATHIL B.RADHAKRISHNAN, JUDGE. Sha/221009 -true copy- P.S.to Judge.