IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 WP(C).No. 37199 of 2007(C) --------------------------------- PETITIONER(S): ------------------------- MRS.THANKAMMA ESTHAPPAN PROPRIETRIX, VALIAYAPARAMBIL TOURIST HOME ADIMALI. BY ADV. MR.DEEPU THANKAN RESPONDENT(S): ------------------------ 1. STATE OF KERALA REP. BY ITS SECRETARY TO GOVT. (TAXES) GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. 2. THE EXCISE COMMISSIONER COMMISSIONERATE OF EXCISE THIRUVANANTHAPURAM. GOVERNMENT PLEADER MR.V.TEKCHAND FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/03/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.37199/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE APPLICATION DT. 18.2.92 . P2:- COPY OF THE ORDER DT. 9.2.93. P3:- COPY OF THE JUDGMENT DT. 31.1.01 IN OP. 2865/93. P4:- COPY OF THE ORDER OF THE IST RESPONDENT DT. 8.3.01. P5:- COPY OF THE INTERIM ORDERS ISSUED TO THOSE ORIGINAL PETITIONS IN CMP. 1429/97 IN OP. 14952/96 DT. 24.2.97. P6:- COPY OF THE JUDGMENT DT. 26.5.97 PASSED BY THIS HONOURABLE COURT IN OP. 14035/96. P7:- COPY OF THE ORDER NO.XC6-26959/99 DT. 24.3.03. P8:- COPY OF THE REVISION PETITION SUBMTITED BY THE PETITIONER DT. 17.7.03. P9:- COPY OF THE ORDER OF THE IST RESPONDENT DT. 20.4.04. P10:- COPY OF THE LETTER DT. 18.8.07. P11:- COPY OF THE ORDER GO(RT) NO.106/07/TD OF THE IST RESPONDENT DT. 8.2.07. TRUE COPY P.S. TO JUDGE TSS (C.R.) P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C) No. 37199 OF 2007 ......................................................................... Dated this the 25th March, 2009 J U D G M E N T Ext. P1 application was submitted by the petitioner for granting FL-3 licence for the year ending 1992-93, which was considered by the second respondent and in spite of the recommendation given by the Asst. Excise Commissioner, the same was rejected referring to the amendment to Rule 13(3) of the Foreign Liquor (Amendment) Rules 1992 ('Rules' in short), observing that after the amendment, the sanctioning authority was the Government and further that the Government have taken a policy decision not to grant any FL3 licence. This was challenged by the petitioner by filing O.P.No.2865 of 1993, which led to Ext.P3 verdict, directing the Government to consider the representation filed by the petitioner and to have it finalised in accordance with law. 2. Pursuant to Ext.P3, the issue was considered by the Government and it was held that the analogy sought to be drawn by the petitioner with the petitioners who were granted W.P.(C) No. 37199 OF 2007 2 licence pursuant to the verdict passed by the Supreme Court in Vijayakumar vs. Commissioner of Excise [1994(1) K.L.T. 9) was not correct or sustainable; that the petitioner stood entirely on a different footing and hence that there was no merit in the contentions raised by the petitioner. Accordingly, Ext.P4 order was passed which was challenged before this court by filing O.P. 14771 of 2001. The above case was disposed of directing the 2nd respondent to consider the matter in the light of the orders/judgment as referred to therein. In compliance with the directions given by this court, the matter was considered by the Government and the claim was rejected as per Ext.P7 which was taken up in the Revision (Ext.P8) filed before the Government. Ultimately, the Government has also turned down the request as per Ext.P9 order dated 20.04.2004. The present Writ Petition has been filed about 3 ½ years after passing Ext.P9 stating that passing of Ext.P9 was never communicated to the petitioner and that the petitioner could secure a copy of the same only pursuant to Ext. P10 application dated 18.08.2007. 3. The first respondent has filed a counter affidavit sustaining the action pursued by the respondents, asserting that W.P.(C) No. 37199 OF 2007 3 the petitioner's case cannot be considered as analogous to the case where licences were already issued by the respondents pursuant to the verdict passed by the Apex Court, as mentioned herein before and that the petitioner was not entitled to get the licence in view of amendment of the relevant rules. 4. Learned counsel for the petitioner submits that the application preferred by the petitioner was on 18.02.1992 and that the relevant rules were amended only on 04.03.1993 though with retrospective effect from 01.04.1992, as stated in paragraph No.5 of the Writ Petition. The learned counsel submits that since Ext.P1 application was filed even much prior to the date of commencement of the amended rules, it should have been considered in the light of the rules 'then existing' in force and not on the basis of the amended rules brought into effect from 01.04.1992. The learned Counsel also placed reliance on the decision rendered by a Division Bench of this court in State of Kerala vs. Raghavan [2009(1) K.L.T. 625] 5. In the above case, the main question considered by this Court was whether the direction to consider the application for FL3 licence with reference to the law prevailing on the date of W.P.(C) No. 37199 OF 2007 4 application was correct, which was answered by the learned single Judge in the positive. The challenge raised by the State against the said finding was rejected by the Division Bench upholding the verdict passed by the learned single Judge. 6. The learned Government Pleader, apart from the distinction sought to be raised with regard to the case of the petitioner and the earlier case of 21 persons who were granted licences pursuant to the judgment passed by the Honourable Supreme Court in 1994 (1)KLT 9 (supra) submits that another Division Bench of this Court doubted the decision rendered by the Division Bench reported in 2009(1) K.L.T. 625 (supra) and it has been referred to a Full Bench of this Court, as per the Reference Order dated 19.03.2009 in W.A. No. 544 of 2008. A copy of the Reference Order is also made available for perusal of this court wherein it has been observed by the Bench that the verdict in 2009(1) K.L.T. 625 was rendered without properly considering the dictum laid down by the Apex Court in Kuldeep Singh vs. Govt. of NCT of Delhi [AIR 2006 SC 2652] as contained in paragraphs No. 15 and 36, which are extracted below: W.P.(C) No. 37199 OF 2007 5 “15. The Appellants filed applications for grant of licence pursuant to the policy-decision adopted by the State. They might have invested a huge amount but did not thereby derive any accrued or vested right. The matter relating to grant of licence for dealing in liquor is within the exclusive domain of the State. If the State had the right to adopt a policy- decision, they indisputably had a right to vary, amend or rescind the same. The effect of a policy decision taken by the State is to be considered having regard to the provisions contained in Article 47 of the Constitution of India as also its power of regulation and control in respect of the trade in terms of the provisions of the Excise Act.” Paragraph No.36: “36. In a case of this nature where the State has the exclusive privilege and the citizen has no fundamental right to carry on business in liquor, in our opinion, the policy which would be applicable is the one which is prevalent on the date of grant and not the one, on which the application had been filed. If a policy decision had been taken on 16.09.2005 not to grant L- 52 licence, no licence could have been granted W.P.(C) No. 37199 OF 2007 6 after the said date.” In the above circumstances, the decision rendered by the Apex Court, being the law of the land by virtue of Article 141 of the Constitution of India, the reliance placed on the decision reported in 2009(1) K.L.T. 625 is rather of no consequence. 7. Another glaring fact which has to be noted is as to the specific request contained in Ext.P1 application. It is well settled that the right to trade in liquor is not a fundamental right; which actually is only a privilege granted by the Government, based on its policy being evolved from time time. Even though Ext.P1 application for issuance of FL3 licence is dated 18.02.1992, the request contained therein was for granting licence for the financial year ending 1992-93. The amendment to Rule 13(3) of the Rules, though was brought about only on 04.03.1993, it admittedly came into force w.e.f. 01.04.1992 (paragraph No. 5 of the Writ Petition). Since the request of the petitioner as contained in Ext.P1 application was for issuance of FL3 licence for the official year from 01.04.1992 to 31.03.1993, the date of application, shown as 18.02.1992, is not having any significance at all, since the authorities were required to consider W.P.(C) No. 37199 OF 2007 7 Ext.P1 application for the year commencing from 01.04.1992- on which day, the amended rule started to take its breath. As such, it is no more open to the petitioner to take a U-turn now, to say that the application should have been considered in the light of the relevant rules which existed on the date of the application , i.e., as on 18.02.1992. Admittedly, since the amended rule had already come into force w.e.f. 01.04.1992 (from which date the FL3 licence was sought to be issued), Ext.P1 application could have been considered only on the basis of the amended rules and not on the basis of the pre-existing rules. In the above facts and circumstances, this Court does not find any merit to sustain the reliefs sought for and hence interference is declined. The Writ Petition is dismissed accordingly. P.R. RAMACHANDRA MENON, JUDGE. lk