TMI Blog1993 (11) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 13(3) of the Kerala Foreign Liquor Rules 1974 to hotels/restaurant/tourist homes during the financial year 1992- 93. They challenged the orders in the High Court by way of writ petitions. The petitions were dismissed on 1st February 1993. Two Special Leave Petitions were filed against this order. One was numbered as 2310-17 of 1993 and the other as 3391 of 1993. Some of other petitions came up for hearing before the High Court on 4th March 1993 which were decided on 10th March 1993. This order was challenged by Special Leave Petition (Civil) No. 4152 of 1993. In Special Leave Petition Nos. 2310-17 of 1993 and 3391 of 1993 a bench of this Court on 1st March 1993 passed following order: Issue notice both on special leave petitions as w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of them in the light of G.D. No. 179/92/TD dated 9th November 1992. On 24th May 1993 the Excise Commissioner rejected the applications for renewal in the light of G.O. dated 9th November 1992 as directed by the Board. This order has been challenged by a separate Special Leave Petition (C) No. 5808 of 1993 in which notice was issued on 13th May 1993. 2. Lengthy arguments were advanced by learned Counsel for both the sides. One the questions that was raised was if the appellants have a fundamental right to carry on trade in liquor. This question has been referred to a Constitution bench by a bench of three judges of this Court in Civil Appeal Nos. 4708-12 1989. The Civil Appeal Nos. 6043-50 of 1993 arising out of S.L.P. (C) Nos. 2310-17 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State defended both its policy decision and the order. 4. Although we do not propose to decide if any statement was made on behalf of the State Government and it purported to interfere with the courts of justice as sufficient material has not been placed on record but we consider it necessary to record our disapproval of the nature of affidavit filed by the Secretary (Excise) on such and important issue. Paragraph 11 of the counter-affidavit is reproduced below: I submit that the allegation in Para 5 of Special Leave Petition No. 5808 of 1993 that the Government have made its mind clear, on the very next day of the order of this Hon'ble Court which was prominently flashed in all Malayalam Newspapers in headline news, by the Hon&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that renewal of fresh grant normally are not dealt with by the same yardstick, yet we do not consider it necessary to pronounce on it as validity of the G.D. issued on 9th November 1992 is subject matter of challenge in other appeals which we have directed to be heard along with other appeals pending before Constitution Bench. As stated earlier we are concerned in this appeal only with correctness of the order dated 24th May 1993. The opposite parties have rejected the applications filed by the petitioners on the ground that the State Government having taking a policy decision on 9th November 1992 not to issue licences the appellants were not entitle to claim renewal. The order was attempted to be justified by the learned Additional Solici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some public interested persons are agitating but the validity of the State action has to be judged on positive steps taken by the State for enforcing the policy. But in the affidavits filed by the State no material has been brought on record to show that any concrete step has been taken in this regard. Moreover the appellants are hoteliers who granted licence for promoting tourism. No figure has been furnished about traffic in these hotels. The agitation must be against consumption of liquor. How is the State curtailing it by permitting import of arrack has not been explained. In fact it is not disputed in the affidavit filed by the Excise Secretary that import was permitted under new Abkari policy adopted from 1.4.1993 as the State presum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the rules do not make distinction between renewal and fresh grant then all licensees were on same footing and the attempt to pick and those the appellants, in our opinion, was contrary to rules without any valid justification. 6. For these reasons appeals arising out of special leave petition Nos. 2310-17/93, 3391/93 and 4152/93 are directed to be tagged with Civil Appeal Nos. 4708-12/89. 7. Civil Appeal No. 6042 of 1993 arising out of S.L.P. (Civil) No. 5808 of 1993 is allowed. The respondents are restrained from interfering in carrying on of appellants as FL-3 licensees subject to complying with other conditions and payment of annual rental proportionately till their application for grant of licence are decided on merits as direc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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