IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 29TH SEPTEMBER 2009 / 7TH ASWINA 1931 WP(C).No. 25072 of 2009(D) --------------------------------------- PETITIONERS: --------------------- 1. BENNY KURIAN, S/O.KURIAKOSE, AGED 42 YEARS, KALLIRIKKUMKALAYIL HOUSE, MADHURAVELI KARA, MUTTUCHIRA VILLAGE, VAIKOM TALUK. 2. JOY, S/O.JOSEPH, AGED 52 YEARS, MUNDACKAL HOUSE, MADHURAVELI KARA, MUTTUCHIRA VILLAGE, VAIKOM TALUK. 3. JOHN JOSEPH, S/O.JOSEPH, AGED 52 YEARS, KALLIRIKKUMKALAYIL HOUSE, MADHURAVELI KARA, MUTTUCHIRA VILLAGE, VAIKOM TALUK. BY ADVS. MR.K.J.JOSEMON, MR.MATHEW SKARIA. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF EXCISE, SECRETARIAT, THIRUVANANTHAPURAM, PIN- 685 605. 2. THE DEPUTY COMMISSIONER OF EXCISE, KOTTAYAM. 3. THE COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. 4. V.G.JOSHI, S/O.V.K.GOPALAN, VELIMPARAMBIL, MANJOOR P.O., VAIKOM. 5. C.M.MOHANAN, S/O.MADHAVAN, CHERIYAMKUNNEL, NJEEZHOOR P.O., KOTTAYAM. W.P.(C). NO.25072/2009-D: 6. THRESSIAMMA LONAPPAN, D/O.JOSEPH, CHELAKKATTU, KADUTHURUTHY P.O. 7. THE DISTRICT COLLECTOR, KOTTAYAM. 8. THE SECRETARY, KADUTHURUTHY GRAMA PANCHAYAT, KADUTHURUTHY P.O. 9. THE SUB INSPECTOR OF POLICE, KADUTHURUTHY. R1 TO R3, R7 & R9 BY GOVT. PLEADER MR. V. MANU, R4 TO R6 BY ADVS. MR.M.G.KARTHIKEYAN, MR.NIREESH MATHEW. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/09/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.25072/2009-D: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE NOTICE DTD. 30/01/2009 GIVEN BY MR. CHANDY TO THE R.2. EXT.P.2: COPY OF THE ORDER OF THE R.2. BEARING NO. K5-2578/2006 DTD. 29/04/2009 SHOWN BY THE R.4. EXT.P.3: COPY OF THE REPRESENTATION DTD. 18/05/2009 SUBMITTED BY THE PETITIONERS AND OTHER PERSONS OF THE LOCALITY BEFORE THE R.2. EXT.P.4: COPY OF THE REPRESENTATION DTD. 18/05/2009 SUBMITTED BY THE PETITIONERS AND OTHER PERSONS OF THE LOCAITY BEFORE THE R.7. EXT.P.5: COPY OF THE PETITION DTD. 20/05/2009 SUBMITTED BY THE PETITIONERS AND OTHER PERSONS OF THE LOCALITY BEFORE THE R.9. EXT.P.6: COPY OF THE SAID LAWYER NOTICE DTD. 08/06/2009 CAUSED BY THE PETITIONERS TO THE RESPONDENTS 1, 2, 3 AND 5. EXT.P.7: COPY OF THE JUDGMENT DTD. 25/06/2009 IN W.P.(C).NO.16523/2009. EXT.P.8: COPY OF THE REPRESENTATION DTD. 26/06/2009 SUBMITTED BY THE PETITIONERS BEFORE THE R.3. EXT.P.9: COPY OF THE INTERIM ORDER DTD. 13/03/2008 IN W.P.(C).NO.37813/07. EXT.P.10: COPY OF THE ORDER NO. XA6-6531/09 DTD. 14/08/2009 OF THE R.3. EXT.P.11: A ROUGH SKETCH SHOWING THE POSITION OF THE OLD AND NEW BUILDINGS, AND THE OBJECTIONABLE INSTITUTIONS. RESPONDENTS' EXHIBIT: EXT.R2.A: COPY OF THE G.O.(MS).NO.47/2001/TD. DTD. 03/04/2001. //TRUE COPY// P.A. TO JUDGE. Prv. THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.25072 of 2009-D = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 29th day of September, 2009. JUDGMENT “CR” 1.The petitioners challenge Ext.P10 decision of the third respondent Commissioner of Excise. 2.The facts are within a small capsule. A toddy shop was licensed in a particular building. The owner of that building wanted that premises back. The licensees wanted the toddy shop to be shifted to another structure, a building 10 meters away from the original building. The official respondents recommended that shifting, though such shifting was to a building which is within an objectionable distance from certain landmarks in terms of Rule 7 of the Kerala Abkari Shops Disposal Rules 2002, hereinafter, the 'Rules', for short. The shifting was permitted on the premise that by virtue of second proviso to Rule WPC25072/09 -: 2 :- 7(2), the shop could be shifted within the 50 meters from the original building, though the proposed building would also be within the objectionable distance, in view of certain government orders, not specified in the impugned order. 3.In answer to the challenge by the petitioners, the respondents, including the official respondents, rely on Ext.R2(a), G.O.(Ms) No.47/2001/TD dated 3.4.2001. The said government order is not referred to in Ext.P10 which proceeds as if the Commissioner of Excise is issuing the order relying on all enabling government orders. 4.The Rules were issued in 2002. Exhibit R2(a) is of April, 2001. Even if I were to assume that by recourse to some interpretative acrobatics, I would be able to read Ext.R2(a) to continue to be applicable, the fact remains that the Division Bench of this Court had not only read Ext.R2(a) WPC25072/09 -: 3 :- as unconstitutional and illegal, but had also virtually deprecated the manner in which such government orders are issued. (See Sreenivasan v. Assistant Excise Commissioner, 2002 (1) KLT 542). If the Commissioner of Excise had read that decision and had advised his officers properly, particularly paragraph 6 of that judgment, it should have alerted and dissuaded them from exercising such presumptive power which is just not available within the constitutional and statutory format. 5.The learned Government Pleader has very persuasively made me resile from the original suggestion that the officers need to be taken to task for what has been a clear affront to the authority of this constitutional court in as much as they have tried to take the wind out of sail of the aforesaid precedent laid down by the Division Bench. 6.The learned counsel for the licensees argued that WPC25072/09 -: 4 :- by virtue of Sections 18A, 29 and 69 of the Abkari Act, 1 of 1077, hereinafter, the 'Act', the Government have the power to make rules and the power to make rules includes the power to issue clarifications and supplementary provisions, with publications in the gazette. He points out that the areas which are unoccupied by the statutory rules can be brought to be regulated by even executive orders and that clarifications could be issued wherever there is either a vacuum or when clarity of the existing provisions is required or explanation is to be made. In support of the position that executive orders could be issued to govern the fields unoccupied by primary or subordinate legislation, the learned counsel for the licensees referred to the decision of the Apex Court in Dhananjay Malik v. State of Uttaranchal, 2008(2) KLT 969. He, accordingly, points out that the second proviso to Rule 7(2) as it now stands enables the shop to be shifted to premises which could not have been licensed on earlier occasions and therefore, the WPC25072/09 -: 5 :- application of Ext.R2(a) and the continued situation based thereon cannot be faulted. 7.The licensees are right in contending that the areas unoccupied by primary and subordinate legislations can be visited by executive action. However, it needs to be pointed out that the availability of such vacuum or free space is not a matter of easy assumption, but of sound understanding of the statute law. I may also notice that the power to clarify does not include the power to modify. It includes the power to clarify what already exists. To “clarify” means to “remove the confusion”. This does not provide the power to add or amend. This position is also well settled by the decisions of the Apex Court and also by the decisions of this Court; be it in the field of taxation, service law or other realms of administrative law. 8.Now, adverting to the the Act and Rules, it needs to be noticed that Ext.R2(a) Government Order, WPC25072/09 -: 6 :- having already been found against by the Division Bench of this Court; what survives for decision is as to whether the legislative modification by the incorporation of the second proviso to Rule 7 as it now stands among the Rules, takes away the effect or the applicability of the judgment rendered by the Division Bench above, while construing the second proviso to Rule 7(2). All that the said proviso enables is the housing of toddy shops in such premises which could not be licensed during the previous years, owing to grounds stated in that proviso. The licence in question is not one of that kind. It relates to a shop which was functioning in a particular site. The shifting of that shop to any other premises cannot be done on an exercise under the second proviso to Rule 7(2), as it now stands. On that ground, the plea of the licensees in this regard has only to be repelled, even if the shifting was from an objectionable site which stood protected under the second proviso to Rule 7(2). WPC25072/09 -: 7 :- 9.For the forgoing reasons, the impugned Exts.P2 and P10 are in violation of Rule 7 of the Rules. They are accordingly set aside. The writ petition will stand allowed. The learned counsel for the licensees sought for a breathing time to close down the shop. Therefore, it is ordered that following this judgment, the shop in question would be closed within two weeks from now. THOTTATHIL B.RADHAKRISHNAN, JUDGE. Sha/290909