ANANDARAJAN Vs. STATE

JUDGEMENT

(1.) Issue raised in these Original Petitions and Writ Appeals are the same. Therefore we propose to deal with all of them in this common judgment. We treat O.P.4070/1993 as the main petition and refer to the documents as they are marked in that petition. The main prayer made therein is to quash the amendment brought to R.6(2) of the Kerala Abkari Shops (Disposal in Auction) Rules, 1974, hereinafter referred to as "the Rules". Petitioners have also prayed for striking down S.18A of the Abkari Act as ultra vires of the Constitution.

(2.) Petitioners in the various writ petitions moved interlocutory applications to direct respondents, namely the State Government and the officers of the Excise Department to refrain from enforcing the amendment brought to R.6(2) of the Rules. In those applications, interim orders were passed staying the operation of the amendment to R.6 of the rules. Accordingly respondents, namely State and the Excise authorities were directed to consider the applications put in by the petitioners for issue of licence to the various liquor shops without taking note of the amendment. These interim orders were challenged by the State in Writ Appeal 535/1993 and connected appeals. A Division Bench of this Court stayed the operation of the interim order till the final disposal of the writ appeals. Pending those appeals, all Original Petitions were referred to Division Bench. Thus the entire matter is now before us.

(3.) Short facts necessary for understanding the controversy in these matters arc as follows (The allegations made by the petitioner in O.P. 4070/1993 virtually represents all the contentions raised by -other petitioners as well. So, we refer to the facts narrated by the petitioner in O.P.4070/1993).Petitioner was conducting Foreign Liquor Whole-sale Shop under FL1 licence in T.C.No.25/X/73 at Thampanoorin Thiruvananthapuram from 1974 onwards. First respondent, the State, amended the rules with effect from 1-4-1986. The amendment prohibited location of foreign liquor wholesale shops within certain distances from educational institution, temple, church, mosque, and 'burial ground. As far as the wholesale shops were concerned, the restriction regarding the location-was introduced for the first time by the said amendment. Petitioner challenged the validity of that amendment before this Court in an Original Petition. By interim order, this Court directed respondents to permit him to conduct the foreign liquor whole sale shop in the place where it was housed. During the currency of that order, Government amended the Rule adding a proviso to the effect that foreign liquor (Retail) and foreign liquor (Wholesale) shops shall be permitted to be located and licensed in the places where they were located in the previous Abkari year. By this amendment, Government recognised the necessity to permit the existing shops to continue in their respective places irrespective of the provision contained in R.6(2) of the Rules. The amendment so brought out was being extended year after year till the Government deleted the proviso by G.O.(P) 29/93/TD dated 4-3-1993. Consequently, no shop whether existed prior to 4-3-1993 or not, will be allowed to be located and licensed within the prohibited distance. Petitioners challenge this amendment of the Rules.