R VIJAYAKUMAR Vs. COMMISSIONER OF EXCISE

JUDGEMENT

(1.) These are four appeals directed against judgment and order of the High court of Kerala. The appellants are owners or proprietors of hotels and restaurants who were granted FL-3 licences under Rule 13 (3 of the Kerala Excise Rules in October 1992 for the year 1992-93. Their licences were cancelled soon thereafter as in November 1992 the government had taken a policy decision to cancel all Foreign Liquor (Hotel/restaurant) Licences under Rule 13 (3 of the Kerala Foreign Liquor Rules, 1974 to hotels/restaurants/tourist homes during the financial year 1992-93. They challenged the orders in the High court by way of writ petitions. The petitions were dismissed on 1/02/1993. Two special leave petitions were filed against this order. One was numbered as 2310-17 of 1993 and the other as 3391 of 1993. Some other petitions came up for hearing before the High court on 4/03/1993 which were decided on 10/03/1993. This order was challenged by Special Leave Petition (Civil) No. 4152 of 1993. In Special Leave Petition Nos. 2310-17 of 1993 and 3391 of 1993 a bench of this court on 1/03/1993 passed the following order:

(2.) Lengthy arguments were advanced by learned counsel for both the sides. One of the questions that was raised was if the appellants have a fundamental right to carry on trade in liquor. This question has been referred to a Constitution bench by a bench of three Judges of this court in Civil Nos. 4708-12 of 1989. The Civil Nos. 6043-50 of 1993 arising out of Special Leave Petition (C) Nos. 2310-17 of 1993; Civil No. 6051 of 1993 arising out of Special Leave Petition (C) No. 3391 of 1993; and Civil No. 6052 of 1993 arising out of Special Leave Petition (C) No. 4152 of 1993 are therefore directed to be tagged with Civil Nos. 4708-12 of 1989.

(3.) The appeal arising out Special Leave Petition (C) No. 5808 of 1993 is however confined to the short question if the opposite parties committed any error of law in rejecting the application filed by appellants for renewal of licence for 1993-94. Two basic attacks were made on the correctness of the order dated 24/05/1993. One, that the policy of the government is not in consonance with practice. It was claimed that even though the State claimed implementation of directive principles of the Constitution it had liberalised import of arrack from outside the State, ft was claimed that this unmistakenly demonstrates that the State was not interested in enforcing the policy of prohibition but only denying the right to carry on business to the appellants for extraneous reasons. The other ground was that the renewal of 381 licences who were similarly situated as the appellants was contrary both to the policy decision of government and directive principles of the Constitution. It was also urged that the State being in contempt as it not only made statement to the press which was in direct conflict with the order issued by this court but even rejected the applications filed by the appellants without examining them on merits was not liable to be heard. The State defended both its policy decision and the order.