TMI Blog2010 (1) TMI 1204X X X X Extracts X X X X X X X X Extracts X X X X ..... he application by the excise authorities, with reference to the law and not as on the date of application. Consequently the direction by the High Court that the application for licence should be considered with reference to the Rules as they existed on the date of application cannot be sustained. Whether the amendment to Rule 13(3) of Foreign Liquor Rules substituting the last proviso is valid - HELD THAT:- Rule 13(3) provides for grant of licences to sell foreign liquor in Hotels (Restaurants). The substitution of the last proviso to Rule 13(3) by the notification dated 20.2.2002 provided that no new licences under the said Rule shall be issued. The proviso does not nullify the licences already granted. Nor does it interfere with renewal of the existing licences. It only prohibits grant of further licences. The issue of such licences was to promote tourism in the State. The promotion of tourism should be balanced with the general public interest. If on account of the fact that sufficient licences had already been granted or in public interest, the State takes a policy decision not to grant further licences, it cannot be said to defeat the Rules. It merely gives effect to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Managing Director of the applicant had been convicted in an excise offence. The said rejection was challenged in O.P. No. 17106/2001 contending that the person convicted was not the Managing Director when the application was made. The second writ petition was allowed on 20.6.2001 with a direction to re-consider the application and pass a fresh order, taking note of the fact that the convicted Managing Director was no longer in office and there was new Managing Director at the time of the application. The Special Secretary (Taxes), Government of Kerala, reconsidered the application and by order dated 6.10.2001 rejected the application on following four grounds: (i) the applicant was not a classified restaurant as contemplated under Rule 13(3) of the Rules; (ii) the facilities contemplated under Rule 13(3) were not available in the applicant's hotel; (iii) only hotels run by Kerala Tourism Development Corporation and India Tourism Development Corporation were entitled to FL-3 licences; and (iv) the current policy of the government was not to grant any fresh licences. The applicant filed yet another writ petition (O.P. No. 31993/2001) challenging the rejection. A learned Single Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the request for grant of licence in view of proviso to the amended rule, prohibiting grant of new licences. 5. The applicant challenged the amendment to the Rule and the consequential rejection of its application in O.P. No. 7112 of 2002. The said writ petition (along with other writ petitions and writ appeals involving similar issue) were disposed of by the impugned order dated 16.7.2002. The High Court considered the following four grounds of challenge: (a) that the repeated rejection of the application by the Excise department and the amendment of the Rules by notification dated 20.2.2002 were unreasonable, arbitrary and was in bad faith and was, therefore, liable to be interfered; (b) that the proviso to Rule 13(3) was invalid as it was violative of the main Rule; (c) that the amendment to the Rules by notification date 20.2.2002, was bad as it was made merely get over the judgment of the High Court directing fresh consideration; and (d) that giving retrospective effect to the Rules was beyond the rule making power of the State Government under the Act. The High Court rejected the ground (a),(b) and (c) and upheld the validity of the amendment. It however accepted ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This Court held: It is not in dispute that the State received a large number of applications. It was required to process all the applications. While processing such applications, inspections of the proposed sites were to be carried out and the contents thereof were required to be verified. For the said purpose, the applications were required to be strictly scrutinized. Unless, therefore, an accrued or vested right had been derived by the Appellants, the policy decision could have been changed. What would be an acquired or accrued right in the present situation is the question. x x x x x x x x In case of this nature where the State has the exclusive privilege and the citizen has no fundamental right to carry on business in liquor, in our opinion the policy which would be applicable is the one which is prevalent on the date of grant and not the one, on which the application had been filed. If a policy decision had been taken on 16.9.2005 not to grant L-52 licence, no licence could have been granted after the said date. 10. We may in this context refer to some earlier decision laying down the principle that applications for licences have to be considered with reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Neither the provisions of the Act nor general law creates any vested right, as claimed by the applicant company for grant of sanction or for consideration of its application for grant of sanction, on the then existing Building Rules as were applicable on the date of application. Conceding or accepting such a so-called vested right of seeking sanction on the basis of unamended Building Rules, as in force on the date of application for sanction, would militate against the very scheme of the Act contained in Chapter XII and the Building Rules which intend to regulate the building activities in a local area for general public interest and convenience. It may be that the Corporation did not adhere to the time limit fixed by the court for deciding the pending applications of the company but we have no manner of doubt that the Building Rules with prohibition or restrictions on construction activities as applicable on the date of grant or refusal of sanction would govern the subject matter and not the Building Rules as they existed on the date of application for sanction. No discrimination can be made between a party which had approached the court for consideration of its application for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h reference to the date of application. 13. The applicant submitted that it had originally filed an application on 11.12.2000 and in pursuance of the decision of the High Court on 14.12.2001, it submitted an application on 19.12.2001 and that application was considered and disposed of on 27.12.2001. The applicant contended that even if the principle laid down in Kuldeep Singh was applied, the application having been considered and disposed of by the concerned authority on 27.12.2001, the law in force on that day ought to have been applied. The applicant further contended that the amendment to the rules which came into effect only on 20.2.2002, was not applicable on 27.12.2001 and therefore the rejection on 27.12.2001 was bad and consequently the impugned order of the High Court may be construed as requiring the authority to decide the matter as on 27.12.2001. We find that the said contention does not have any merit. It is true that the application was given on 19.12.2001. It is true that the application was considered and rejected on 27.12.2001 on a ground which may not be sound. It is also true that the amendment to the rules which was introduced by notification dated 20.2.2002 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ideration of the application by the excise authorities, with reference to the law and not as on the date of application. Consequently the direction by the High Court that the application for licence should be considered with reference to the Rules as they existed on the date of application cannot be sustained. Re: Question (ii) 16. The applicants for licence submitted that Rule 13(3) contemplates FL-3 licences being granted on fulfillment of the conditions stipulated therein; and the newly added proviso, by barring grant of new licence had the effect of nullifying the main provision itself. It was contended that the proviso to Rule 13(3) added by way of amendment on 20.2.2002 was null and void as it went beyond the main provision in Rule 13(3) and nullified the main provision contained in Rule 13(3). 17. Rule 13(3) provides for grant of licences to sell foreign liquor in Hotels (Restaurants). It contemplates the Excise Commissioner issuing licences under the orders of the State Government in the interest of promotion of tourism in the State, to hotels and restaurants conforming to standards specified therein. It also provides for the renewal of such licences. The substitution ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
