DASAPPAN Vs. SECRETARY TO GOVT TAXES DEPARTMENT

JUDGEMENT

(1.) The petitioner, a toddy shop licencee; not obliged by Rule 28A of the Foreign Liquor Rules, 1953 in short, the "FL Rules", to observe dry day in terms of that Rule; challenges in anticipation, a proposal which he says the government has, to keep the Foreign Liquor shops open on all or some among the days enumerated in the aforesaid Rule, 'Onnaam Onam' this year falls on the first of September, 2009, on which the Foreign Liquor shops should remain closed in terms of Rule 28A of the FL Rules. The petitioner says that there is a proposal to keep the Foreign Liquor Shop open on that day, on the premise that Onam cannot be well enjoyed without adequate supply of liquor. Without much search, it can be well assured that what the petitioner ultimately projects is his private commercial interest, since the contentionis that the rights and liabilities of parties are determined and finalised when notification is issued as a predator the sale of shops, before licence is granted. It is pointed out that by virtue of Rule 3, Rule 4 etc, of the Kerala Abkari Shops Disposal Rules, 2002, the total number of shops, the location of shops, the rental of the shops etc, are determined and notified even before the shops are alloted. It is accordingly contended that the fixation of the rental and other commercial incidentals forming part of the transaction of the issuance of a toddy shop licence gets crystallized into a version of settled rights inter se the licensees and the Government and the commercial interest of the licencess of toddy shops include their entitlement to be the only vendors of liquor, to the exclusion of Foreign Liquor Shops on dry days which fall under Rule 28A of the FL Rules, Thus, it is argued that the bargain between the persons like the petitioners who run toddy shops and the Government cannot be tilted during a particular Abkari year, in any manner, adversely affecting the commercial interest of the toddy shop licence and any permission to run the Foreign Liquor shops on dry days would be in breach of the settled terms of the commercial bargain between the toddy shop business and the government and would deprive the licencees of their legitimately expected profits.

(2.) The provisions of Abkari Shops Disposal Rules, 1953 for short, the "Disposal Rules", deal with the grant of licence to toddy shops. Some of the provisions of those rules also apply to the issuance of Foreign Liquor licence. Fundamentally, the F L Rules are a set of more specialised Rules which apply pithily to Foreign Liquor licence. In the manner in which they stand, they are primarily meant to regulate the activities of the grantee of the privilege to vend Foreign Liquor, which otherwise is exclusively a matter of privilege of the State, Equally so, are the rights of a toddy shop licencee. In both cases, the commercial interest of the persons running toddy shop or Foreign Liquor shop as the case may be, is never a matter of prime concern of the State. To trade in liquor is no fundamental right. All that could be, is to insist equal enforcement of laws. This can be only among equals. Toddy shop licencees and Foreign Liquor shop licencees do not form a homogeneous class, except when they are treated as licencees authorised to deal in liquor, for equality in application of the laws, that bind both of them, say, such provisions in the Disposal Rules. The modality of the change of law, or the manner in which the State would permit its exclusive privilege to vend liquor to be used by a class of licensed vendors of liquor, are matters totally within the policy of the Government, unless it tantamounts to over-stepping the bounds of the Constitutional limitations and prescriptions Viewed in that angle, the petitioner, even if were to treat him as rival in business or trade in liquor, has no shred of constitutional or other legal right, to plead that the Government shall not by itself or through its officers, change the mode of operation of Rule 28A of the Rules in a manner prescribed by law. The power to make a rule carries with it the power to recall it and also to amend it. Such power, where it is part of the exclusive privilege of the State to deal with a subject; also carries with it the power to exempt. The calender fixing a particular opening and closing point for an abkari year or financial year has no relevance in such matters. If it is deemed necessary to change a policy during the currency of a particular abkari year, there is no constitutional or other legal embargo for the Government to do that. If such change in policy visits any person with adverse commercial consequences as regards the performance of any licence, grant etc, made on the basis of the then existing policy, that, at the worst, would be only a matter for compensatory demands and would not give rise to any situation where the policy could be put to peril.

(3.) For the aforesaid reasons, Without stating anything on merits or demerits of any proposal to modify Rule 28A or to grant exemption there from, but holding that the petitioner does not have any right to challenge such proposal and seek any relief as sought for, this writ petition is dismissed in limine.