THANKAMMA ESTHAPPAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Exit. P1 application was submitted by the petitioner for granting Foreign Liquor-3 license for the year ending 1992-93, which was considered by the second respondent and in spite of the recommendation given by the Asst. Excise Commissioner, the same was rejected referring to the amendment to Rule 13(3) of the Foreign Liquor (amendment) rules 1992 ( 'Rules' in short), observing that after the amendment, the sanctioning authority was the Government and further that the government have taken a policy decision not to grant any FL3 license. This was challenged by the petitioner by filling Upon. 2865 of 1993, which led to Exit. P3 verdict, directing the Government of consider the representation filed by the petitioner and to have it finalized in accordance with law. Pursuant to Exit. P3. the issue was considered by the Government and it was held that the analogy sought to be drawn by the petitioner with the petitioners who were granted license pursuant to the verdict passed by the supreme Court in Vijayakumar vs. Commissioner of excise,1994 1 KerLT 9 was not correct or sustainable; that the petitioner stood entirely on a different footing and hence that there was no merit in the contentions raised by the petitioner. Accordingly, Ext. P4 order was passed which was challenged before this court by filling O.P. 14771 of 2001. The above case was disposed of directing the 2nd respondent to consider the matter in the light of the orders/judgment as referred to therein. In compliance with the directions given by this court, the matter was considered by the Government and the claim was rejected as Ext. P7 which was taken up in the Revision (Ext. P8) filed before the Government has also turned down the request as per Ext. P9 order dated 20.4.2004. The present Writ Petition has been filed about 3 years after passing Ext. P9 stating that passing of Ext. P9 was never communicated to the petitioner and that the petitioner could secure a copy of the same only pursuant to cxt. P10 application dated 18.8.2007.

(2.) The first respondent has filed a counter affidavit sustaining the action pursued by the respondents, asserting that the petitioner's case cannot be considered as analogous to the case where license were already issued by the respondent pursuant to the verdict passed by the Appex Court, as mentioned herein before and that the petitioner was not entitled to get the license in view of amendment of the relevant rules.

(3.) Learned counsel for the petitioner submits that the application preferred by the petitioner was on 18.2.1992 and that the relevant rules were amended only on 4.3.1993 through with retrospective effect from 01.04.1992, as stated in paragraph Nos of the Writ Petition. The learned counsel submits that since Ext P1 application was filed even much prior to the date of commencement of the amended rules, it should have been considered in the light of the rules 'then existing' in force and not on the basis of the amended rules brought into effect from 01.04.1992. The learned Counsel also placed reliance on the decision rendered by a division Bench of this court in State of Kerala vs. Raghavan,2009 KerLT 625