STATE OF KERALA Vs. XAVIERS RESIDENCY

JUDGEMENT

(1.) Hotels and restaurants in Kerala with FL-3 licence were allowed to sell liquor in the Bar under Rule 28 of the Foreign Liquor Rules (hereinafter called "the Rules") from sun rise to midnight i.e. from 6 a.m. to 12 p.m. However, an amendment was introduced to this Rule with effect from 18.4.2002 prescribing different working hours for FL- 3 Hotels/Restaurants functioning in Panchayat and Municipal areas on the one side and such Hotels/Restaurants functioning in Corporation limits on the other side. While in Municipal and Panchayat areas Bar Hotels were allowed to sell liquor from 8' O clock in the morning till 11.00 in the night, for Hotels/Restaurants in Corporation area, time fixed for business was from 9' O clock in the morning to 12.00 in the night. This Rule was challenged by the Hotels in Corporation areas contending that fixation of different time for commencement ofbusiness is discriminatory and violative of Article 14 of the Constitution. The learned Single Judge allowed the writ petitions holding that the classification made by the Government based on location of hotels i.e. between Panchayat/Municipal areas on the one side and the Corporation on the other side, has no rational nexus with the object of the legislation i.e. to achieve reduction of availability of liquor in the State to reduce consumption which according to the State is part of it's Abkari policy. The learned Single Judge after holding that the Rule is violative of Article 14 of the Constitution of India, left to the Government to decide uniform working hours for Bar Hotels functioning in Panchayat/Municipal areas and also in Corporation areas. It is against this judgment two Writ Appeals are filed by the State and another by a Hotel owner. We have heard Senior Government Pleader for the State, counsel appearing for the appellant in the connected appeal and also counsel appearing for respondents and the various counsel appearing for the parties impleaded.

(2.) When the appeals came up for hearing on 21.8.2012, we felt that if Government is earnest about implementation of Abkari policy inthe State, which according to the Government is possible by reducing working hours of Bar Hotels and since the learned Single Judge also directed the Government to fix rationally uniform working hours for Bar Hotels all over Kerala, the right thing that Government should do is not to permit sale of liquor in any Bar Hotel during working hours i.e. up to 5 p.m. in the State. Even though through interim order dated 21.8.2012 we sought the opinion of the Government before final decision in the appeals, Government has filed a report stating that a policy decision can be taken by the Government "after consultation with stakeholders and assessing the needs of the society". Even though Government has accepted the suggestion of the High Court that prohibition of sale of liquor during working hours until 5' O clock in the evening will certainly reduce the consumption of liquor in the State, Government does not want to hurry up a decision and has sought time from this court to take decision and communicate the same. However, we do not think we should wait for decision by the Government because fixation of working hours is always a policy matter which is within the domain of the Government on which court has no say.Moreover, from Media reports on judgments of this court pertaining to Abkari cases, we notice that Government is very sensitive to the High Court expressing views on Abkari policy of the Government. There can be no controversy that not only in Abkari matters, policy decisions are always with the Government and court has no role in it. However, when the policy is enacted in the form of law, whether as Act or Rule, and when the validity of it is questioned before the High Court, the High Court has a duty in exercise of judicial review to examine whether the policy translated into law has transgressed the limits of the Constitution justifying interference by the court. Therefore, it is in exercise of jurisdiction under Article 226 of the Constitution the court happens to examine correctness of policy decisions of the Government in the course of considering the legality of it's implementation. We also wish to express the view that Judges are humble citizens of this country who have a right to express their opinion in the judgments while deciding the cases reaching the court. Even when inter-party matters are decided by the court, the court will always keep in mind the interest of the public and the society at large and as far as possible nojudgment rendered by the court should adversely impact public interest. Media considers some value for Judges' views and that is why they report the same. We wish Ministers and political leaders will appreciate this position and show tolerance to the views expressed by the Judges in the course of deciding cases, whether to their liking or not.

(3.) When the interim order of this court dated 21.8.2012 directing the Government to consider prohibition of sale of liquor in Bars up to 5 in the evening got published in the newspapers, a Non-Governmental Organisation (NGO) working for liquor prohibition in the State and some Bar owners filed applications before this court for impleading as additional respondents, which are allowed by us. We have heard counsel appearing for the additional respondents impleaded also. While the case of the NGO is for enforcement of court's suggestion prohibiting liquor consumption and sale during working hours in the day time which according to them will help to a large extent reduction of consumption of alcohol, the case of the impleaded Bar owners is that their business will be affected and Hotels exclusively serving foreigntourists holding only Beer Parlour licence will be worst hit. The specific position canvassed on behalf of the latter category is that Beer Parlour licence is issued basically for meeting the needs of the foreign tourists whose habit is to drink low content alcohol like Beer and Wine during day time. Adv. Sri.Basil Attipetty, one of the counsel appearing, even cited Bible, Quran and the teachings of Sree Narayanaguru in support of the position canvassed that all religions are opposed to people consuming liquor. We have already expressed the view that fixation of working hours of Bar Hotels is exclusively a policy matter of the Government and so long as it is not discriminatory, there is no scope for interference. Further, while respecting religious beliefs of all communities, we are not entitled to apply the same while deciding the case before us, however noble the principles of religion may be because we are governed only by the Constitution and the laws made thereunder. The apprehension of the Beer Parlour licence holders that their business in the hotel essentially catering to the needs of foreign tourists will be affected has force. We do not think Government will have any difficulty in drawing a distinction betweenhotels serving mainly foreign tourists which will be reflected in the foreign exchange earnings and to exempt them even when regular Bar Hotels are prohibited from functioning during day time up to 5' O clock. After hearing counsel appearing for all parties, we do not find any justification to interfere with the judgment of the learned Single Judge because after considering various decisions of the Supreme Court, particularly by applying the test in MAHALAKSHMI SUGAR MILLS CO. LTD. . UNION OF INDIA, 2009 AIR(SC) 792 the learned Single Judge held that different working hours fixed for Bar Hotels located in Municipal and Panchayat areas and those located in Corporation areas has no nexus to the object sought to be achieved i.e. reduction of consumption of alcohol.