IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 29TH OCTOBER 2009 / 7TH KARTHIKA 1931 WP(C).No. 30296 of 2009(F) -------------------------------------- PETITIONER(S): ---------------------- P.P. RAJU, AGED 72 YEARS, S/O.P.K. PALPU, PUNNASSERIL HOUSE, THITTAMEL, CHENGANNUR, ALAPPUZHA DISTRICT. BY ADV. MR.M.G.KARTHIKEYAN RESPONDENT(S): ------------------------ 1. STATE OF KERALA REP.BY SECRETARY TAXES (A) DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, DISTRICT MAGISTRATE, ALAPPUZHA. 4. THE DISTRICT SUPERINTENDENT OF POLICE, ALAPPUZHA. 5. THE DEPUTY COMMISSIONER OF EXCISE, ALAPPUZHA. 6. THE CIRCLE INSPECTOR OF EXCISE, CHENGANNUR, ALAPPUZHA DISTRICT. R1 TO R6 BY GOVERNMENT PLEADER MR.V. MANU. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.30296 of 2009-F = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 29th day of October, 2009. JUDGMENT 1.Rule 28A(vi) of the Foreign Liquor Rules provides, among other things, that the shops shall remain closed on the day of counting of votes and the day succeeding thereto, in relation to elections/bye-elections to the Corporation/Municipal Wards/Panchayat Constituencies. Clause (v) under that rule provides for such a closure on the day of counting of votes and the day succeeding thereto in relation to General Election or Bye-election. 2.This writ petition is filed challenging closure orders issued in relation to a particular bye- election in a Grama Panchayat. The contents of the aforesaid rule are also part of theconditions of licence. WPC30296/09 -: 2 :- 3.In view of the judgments of this Court in Sulekha v. State of Kerala, 2008(2) KLT 23, P.P.Raju v. The District Collector (judgment dated 23.9.2009 in WP(C).26700/2009 and connected cases) and R.Sethuraj & others v. The District Collector & others (judgment dated 27.10.2009 in WP(C). 30291/2009), the last among which is stated to have been affirmed by the Division Bench by judgment dated 28.10.2009 in W.A.2398/2009, the plea against closure stands concluded against the challenge placed by the petitioner on different grounds. It would be profitable to notice that in P.P.Raju's case (supra), it was stated that the requirement to keep the shops closed on the date of counting and on the succeeding day is necessarily the requirement to ensure a hustle free surroundings in the area where the counting takes place. It was noticed that the result of the election, when declared, would generate the reactions of the mass, either in support of the elected candidate or otherwise. It was hence held WPC30296/09 -: 3 :- that the situs of the counting of votes is the relevant consideration even when counting of votes is being held outside the territorial limit of the panchayat in relation to which the election is being held. 4.Faced with the aforesaid situation, the learned senior counsel for the petitioner argued that Rule 28A(vi), at least, to the extent it provides closure of shops on the day succeeding to the counting of votes is wholly unreasonable, irrational and unworkable in as much as it impinges the right of a foreign liquor vendor who has a bar licence and is running the establishment incurring huge expenditure, and in so far as the facts of the case in hand are concerned, the counting was only of 900 votes. He also states that the election was held using electronic machine, the counting in which, takes place in less than half an hour. 5.The law in hand relates to the exclusive WPC30296/09 -: 4 :- privilege of the State in dealing with liquor. Bereft of any challenge on any ground which could be taken as lack of legislative competence or lack of subordinate legislative competence, it may not be within the visitorial jurisdiction of this Court to interfere, unless it is shown that the piece of subordinate legislation results in hostile discrimination, including on a ground that it is palpably perverse. When equal treatment is being made in terms of Rule 28A, no such grounds also exist in view of the decision in Khoday Distilleries Ltd. v. State of Karnataka, (1995) 1 SCC 574. 6.In the aforesaid background, the learned senior counsel persuaded that this is a matter on which the Government should have a re-thinking and should consider confining the ban to be operative only on the day of counting and not on the day succeeding the counting. He says that the rule, as it now stands, was introduced in 1996 and with the passage of time, it needs to be re- WPC30296/09 -: 5 :- considered. This is a matter that is entirely left to the Executive Government. 7.For the aforesaid reasons, while dismissing this writ petition, it is clarified that if the petitioner moves the Government for any modulation of the rule, the same will be considered by the competent authority appropriately within a period of six months, at any rate, before the end of the current abkari year. THOTTATHIL B.RADHAKRISHNAN, JUDGE. Sha/051109