IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.S.R.BANNURMATH & THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 WP(C).No. 24769 of 2009(S) -------------------------- PETITIONER: ------------- T.N.PRATHAPAN, MLA, S/O.LATE NARAYANAN, AGED 46 YEARS, THOTTUNGAL HOUSE, PO THALIKKULAM, THRISSUR DISTRICT. BY ADV.SRI.K. RAMAKUMAR(SR. ADVOCATE) SRI.T.RAMPRASAD UNNI SRI.C.R.REKHESH SHARMA RESPONDENTS: ----------------- 1. THE STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. BY ADVOCATE GENERAL, SRI. C.P.SUDHAKARA PRASAD SR. GOVT. PLEADER, SRI. N. MANOJ KUMAR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/08/2009,ALONG WITH WP(C) No.24962 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.R.Bannurmath, C.J. & A.K.Basheer,J. -------------------------------------------------------------- W.P.(C).Nos.24769 of 2009-S & 24962 of 2009-S -------------------------------------------------------------- Dated, this the 28th day of August, 2009 JUDGMENT S.R.Bannurmath,C.J.: Since in these Public Interest Litigations common question of law and facts arises for consideration, both of them are taken up for consideration and decided by this common judgment. 2. The main grievance in these Writ Petitions is that though as per the Foreign Liquor Rules framed under the Abkari Act and especially Rule 28A, the licensed premises for sale of liquor in respect of the licences issued under these Rules shall remain closed on the days specified in the said Rule, but the respondents have reportedly issued orders to allow the sale of Indian Made Foreign Liquor on 1.9.2009 from the licensed premises in violation of the said Rule. Rule 28A reads as follows: “28A. The licenced premises for sale of liquor in respect of all the Licences issued under these rules shall remain closed on the following days: (i) Birth day of Mahatma Gandhi, WP(C).Nos.24769/2009 & 24962/2009 -:2:- (ii) Birthday of Sree Narayana Guru, (iii) Commemoration day of Mahatma Gandhi, (iv) Samadhi day of Sree Narayana Guru. (v) The days of poll and two days preceding the day of the General Election or Bye-election and on the day counting of votes and the day succeeding thereto. (vi) The day of poll and the day preceding that day of the elections/bye-elections to the Corporation/Municipal Wards/Panchayat Constituencies and in the day of Counting of votes and the day succeeding thereto. (vii) The first day of all English calendar months.” 3. Our attention is drawn, especially, to sub-rule (vii) of the above Rules, whereunder on the first day of all English Calendar months the licenced premises for sale of liquor shall be closed. It is submitted that September 1 being the first day of the calendar month, on the ground that 1st September being Onam festival, this rule is proposed to be overlooked by the Government. 4. In this regard, the learned Advocate General, who appears for the respondents, submits that a decision in this regard is yet to be taken by the WP(C).Nos.24769/2009 & 24962/2009 -:3:- Cabinet and the Cabinet meeting likely to be held today wherein this will be considered. However, it is also contended that under Section 71 of the Abkari Act the Government has power to issue notification, relaxing such conditions and as such the Writ Petitions are premature and hence no relief can be granted. 5. On detailed consideration of rival contentions and taking into consideration the object of such prohibition, that too, framed under the Rules, by Government notification, in our view, such conditions cannot be changed, unless the Rule itself is amended. As long as the Rules are not amended, the Government is bound to direct the liquor shops to be closed on 1st September, 2009. 6. Incidentally, it is brought to our notice that though similar mandate is prescribed under Rule 7(11)(vii) of the Kerala Abkari Shops Disposal Rules, 2002, in the light of the proviso to the said Rule, incorporated in the year 2003, the toddy shops are being allowed to function on the first day of English Calendar months. In our view, this proviso is directly contrary to the main Rule itself and as such, appropriate WP(C).Nos.24769/2009 & 24962/2009 -:4:- directions in this regard are also necessary. In this regard, we are supported by the observations of the Apex Court in the case of Mohd. Abdul Kadir v. Director General of Police, (2009)6 SCC 611. “We are conscious of the fact that the issue is a matter of policy having financial and other implications. But where an issue involving public interest has not engaged the attention of those concerned with policy, or where the failure to take prompt decision on a pending issue is likely to be detrimental to public interest, courts will be failing in their duty if they do not draw attention of the authorities concerned to the issue involved in appropriate cases. While courts cannot be and should not be makers of policy, they can certainly be catalysts, when there is a need for a policy or a change in policy.” 7. Since the anomaly of the proviso being contrary to the main Rule has been brought to our notice, the Court cannot shut its eyes, as the object of such ban is in public interest. It cannot discriminate between the sale of Indian Made Foreign Liquor and toddy. As such, such exemption under proviso to Rule 7(11)(vii) of the Kerala Abkari Shops Disposal Rules, WP(C).Nos.24769/2009 & 24962/2009 -:5:- 2002 is illegal, as there is no apparent rationale or logic for having different standards in respect of Indian Made Foreign Liquor and toddy shops. In the result and for the reasons stated above, we pass the following order: (1) We issue a writ of mandamus forbearing the respondents from departing or deviating from the existing ban of opening the licensed premises for sale of liquor issued under Rule 28A of the Foreign Liquor Rules on the first day of all English calendar months starting from 1st September, 2009. (2) A direction is issued to the Government to pass orders in the case of toddy shops also, to close down on 1st September, 2009. The writ petitions are allowed as above. S.R.Bannurmath Chief Justice A.K.Basheer nm/ Judge