JOSE ELLICKAL Vs. GOVT OF KERALA

JUDGEMENT

(1.) The petitioner has approached this Court challenging Exts. P5 and P6. Ext. P5 is a Notification issued by the Government amending R.13 and 14 of the Foreign Liquor Rules. The amendment has retrospectivity from 1.7.2001. Ext. P6 is passed by the Commissioner of Excise rejecting an application dt. 11.7.2001 submitted by the petitioner for grant of an FL3 licence to his hotel called Vaisakh International Hotels (P) Ltd. at Payyannur, relying on Ext. P5 amendment.

(2.) His application was earlier rejected relying on a Government policy. He challenged the same before this Court in O.P. 30961 of 2001. His challenge did not succeed before the learned Single Judge. He filed W.A. 3939 of 2001. A Division Bench of this Court allowed the Writ Appeal on the ground that unless the policy is reduced into a Government order or intended to be known to the public, such a policy cannot be relied on to reject a licence. The Division Bench also directed the Excise Commissioner to decide his application for FL3 licence within a period of two weeks. In compliance with Ext. P1 judgment Ext. P2 order was issued . His application was rejected as per Ext. P2. That was based on a direction from Government. Ext. P2 as well as the direction from Government had been challenged before this Court in OP 323 of 2002. It was found by this Court that the Commissioner, being the statutory authority in terms of R.13 of the Foreign Liquor Rules to consider the application for FL3 licence, could not have been circumscribed by reason of Government directives. It was also found that the contention of the Government that the petitioner had been found guilty of an abkari offence and therefore there was chance of misuse of abkari licence if granted in his favour was also not a good reason, as the conviction itself had been set aside by the Supreme Court. Accordingly by Ext. P4 judgment, quashing Exts. P2 and P3 this court directed the Commissioner of Excise to consider the matter afresh as envisaged under R.13A of the Foreign Liquor Rules based on the report that has been received from the office of the Assistant Commissioner without seeking any extraneous help or guidance. The direction had to be complied with within a period of two weeks from the date of judgment; namely 31.1.2002. It is submitted by counsel for the petitioner that inspite of communication of the judgment in time, it has not been complied with within the time limit made mention of in Ext. P4. The Commissioner asked for extension of time. Thereafter Ext. P5 notification was issued on 20.2.2002 and relying on that notification his application was rejected by Ext. P6 dt. 4.3.2002. It is in the above circumstances Exts. P5 and P6 are challenged.

(3.) The executive authority could issue certain subordinate legislation retrospectively only if there is delegation granted by the plenary legislation to issue such subordinate legislation retrospectively. S.29 of the Abkari Act does not confer any such power. So there may not be much difficulty in accepting the contention of the petitioner that retrospectivity given to Ext. P5 is ultra vires to the parent enactment viz., the Abkari Act. But according to me that does not in any way help the petitioner to get Ext. P6 quashed, because that retrospectivity does not in any way affect the petitioner adversely.