RAJAN Vs. COMMR OF EXCISE

JUDGEMENT

(1.) A Foreign Liquor Retail Shop (FLR Shop) is located within prohibited distance from certain places of worship and educational institutions at Kadappakada in Kollam Range. Prohibition is contained in R.6(2)(a) of the Abkari Shops (Disposal in Auction) Rules, 1974 (for short 'the Rules'). The shop is housed in building MC.No.818. For the abkari year 1991-92, respondents 4 and 5 got the licence to run the shop being the highest bidders. Appellants, who are residing near the said shop, objected its location. They filed the Original Petition for quashing Ext. P5, a Government Order by which Commissioner of Excise was directed by the Government to grant licence to the said respondents as a special case. Learned single Judge did not interfere and dismissed the Original Petition. This appeal is in challenge of the said judgment of the learned single Judge.

(2.) Auction for the right to vend Indian made foreign liquor in Kollam Range was held on 16-3-91. Respondents 4 and 5 were the highest bidders. The auction bid in their favour was confirmed on 27-3-91. As per the second proviso to R.6(2)(a) which was in force then, an FLR shop could be located in the place where such a shop was located during "1988-89" notwithstanding the fact that the place was within the prohibited distance. By Ex. P1 notification, Government amended the said proviso by substituting the year "88-89 with "90-91". The second proviso as it stands now reads thus:

(3.) Learned single Judge took the view that Ext. P5 was "issued only to give effect to the rule as it existed on the date of auction and avoid the prejudice caused by a later amendment by inadvertence". According to the learned single Judge "such difficulties arose in many cases and it was not anticipated by the licensees; it became difficult for many licensees to open and run the shops and government also felt possibility of loss of revenue, it was only to overcome this difficulty that necessary instructions were given in the .form of an executive order, pending regular amendment, as an emergency measure; therefore, in the ends of justice on account of the peculiar situation the order will have to be given effect to".