IMPORTANT POINT
Under the Kerala Abkari Shops (Disposal in Auction) Rules Excise Commissioner has no authority to permit shifting of a foreign liquor shop, from one range to a totally different range.

Headnote:(i) Kerala Abkari Shops (Disposal in Auction) Rules, 1974-Rule 6(2)-FL-1 licence-Shifting of shop from one range to another-Excise Commissioner has no authority to permit shifting of foreign liquor shop from one range to another.
       The repeated usage of the negative expression "no" in sub-rules (1) and (2) looms large therein. By such usage the legislature has imposed absolute ban on certain activities e.g. "no licensee shall be permitted to sell foreign liquor outside the local limits specified in his licence" as in sub-rule (1) and "no foreign liquor shop shall be located outside the notified limits" as in sub-rule (2). Then again "no foreign liquor shop shall be located" within the distance fixed as from certain institutions. There is no proviso nor any explanation as for sub-rule (1) but the proviso is placed only below sub-rule (2). Therefore, sub-rule (1) must work out by itself unexpanded or unrestricted by any other clause. The first proviso to sub-rule (2) is intended to refer to sub-rule (2) above. This can be discerned from two indications. One is the fact that the said proviso has been placed in the said sub-rule only. Second is that its scope is restricted to a place "outside the limit specified in this sub-rule". The contention of the appellant is that the above words can have relation to the limits specified in sub-rule (1) because the limit envisaged in the second sub-rule is practically the same as the limit indicated in sub-rule (2) cannot be accepted. If the rule making authority had intended it to be so they would have effortlessly used the words "outside local limits specified in the licence" in the proviso because the same words have been used in sub-rule (1). As the proviso gives powers to the Excise Commissioner to order removal of a shop to a place "outside the limits specified in this sub-rule" it can only refer to the limits specified in that sub-rule and not elsewhere. It must be noted in this context that sub-rule (2) specifies certain limits such as "within 400 meters" (for toddy shops) and "within 200 meters" (for FL-1 shops) from certain institutions mentioned therein. It is with reference to those limits which are specified in sub-rule (2) that the proviso confers power on the Excise Commissioner to pass order for removal. Otherwise the absolute ban incorporated in sub-rule (1) would become meaningless. It is also worthy to notice that the only exception from the ban contained in sub-rule (1) is provided in sub-rule (3), extracted above. A superior authority like the Board of Revenue alone was vested with that power in "the interest of public peace or morality or on grounds of expediency." Even for the Government to order transfer of a shop from one locality to another it cannot be done unless there is existence of the exigency indicated in sub-rule (3). How could it be conceived that a subordinate officer can do it without any such exigency. It means that Excise Commissioner has no authority to permit shifting of a foreign liquor shop from one range to a totally different range. (Paras 15 to 20)
       Held, consequently the order passed by the first respondent - Excise Commissioner in favour of the appellant is without authority of law and it has been rightly struck down by the Division Bench of the High Court. (Para 20)
       (ii) Constitution of India-Article 226-Writ petition-Locus standi-Petition against order of Excise Commissioner permitting FL-1 licencee to shift shop from one range mentioned in licence to another range-Petitioner resident of another range and also FL-3 licencee-FL-3 licencee not a rival business contender-Whether has locus standi to question order of Excise Commissioner. (Paras 8 to 12)

JUDGMENT

Thomas, J.-Leave granted.

2. A bidder in auction for the privilege of vending foreign liquor within a circumscribed range was permitted by the Excise Commissioner to have his domain shifted to another range. On hearing the said news a hotelier who is doing business in the latter range was distressed and she quickly approached the High Court for thwarting the said move. At the first round the hotelier failed to checkmate the bidder as a single judge of the High Court declined to grant the relief prayed for by her. However, she succeeded on the second round, when a Division Bench of the High Court, on the appeal filed by her, quashed the order of the Excise Commissioner. This appeal by special leave is by the aforesaid bidder for restoration of the benefit which he secured from the Excise Commissioner.

3. In the State of Kerala, the right to sell foreign liquor is restricted by statutory provisions. The Government of Kerala has formulated rules for it under the Kerala Abkari Act and one set of such rules is called "the Kerala Abkari Shops (Disposal in Auction) Rules, 1974" (for convenience it would be referred to as the "Auction Rules"). The Government has the authority, under the said rules to notify in the Gazette the limits of each area (range) wherein the shop or shops could be located for vending such foreign liquor. Officers are authorised by the Government to auction the right to vend foreign liquor from each such shop and for such period as may be fixed. Person who offers the highest bid would normally be preferred for conferring the privilege to vend foreign liquor and licence would be issued to him for that purpose. Among the different types of licence only two are relevant for the purpose of this case. One is called "Licence for the privilege of possession of Indian made Foreign Liquor for sale to public in sealed bottles without the privilege of consumption on the premises." As the said licence is to be issued in Form FL-1 it can be termed as such hereinafter. The other is called "Hotel (Restaurant) Licence" and it is to be issued in Form FL-3. (It can be referred to as such hereinafter.)

4. FL-3 licence consists of the privilege to sell foreign liquor for consumption within a room specifically approved for the purpose to residents in the hotel or boarding houses, including their guests. FL-1 licence is for the privilege of selling foreign liquor in sealed bottles containing a quantity above 180 ml.

5. For the facts in this case the following events are to be narrated :

On 13.3.2000 appellant participated in the auction held in respect of a shop to be located within a range called "Changanassery Excise Range" consisting of the areas falling within the limits of Changanassery Municipality. Appellant was the highest bidder and he quoted above Rs. 63 lakhs. On his being chosen for the licence appellant remitted a portion of the bid amount on the same day.

He failed to find out a suitable place to locate the shop within the boundaries of Changanassery Excise Range. Hence he applied to the first respondent (Commissioner of Excise, Kerala) for permission to locate the shop outside the said range. On the same day the application was forwarded by the second respondent (Assistant Excise Commissioner of the district) with a recommendatory note. The Excise Commissioner granted permission to the appellant on 12.4.2000 for shifting the shop to another range called Karukachal which comprises of the areas falling within Karukachal Panchayat. (That range is situate next to the Changanassery range.) The third respondent, who is running the hotel and restaurant at Karukachal and who obtained FL-3 licence to supply foreign liquor in peg measurements to patrons visiting the hotel, filed a writ petition before the High Court under Article 226 of the Constitution for quashing the aforesaid permission granted by the first respondent. Third respondent contended mainly that the Excise Commissioner had no authority to pass such a

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2000 Supreme(SC) 1617

IMPORTANT POINTUnder the Kerala Abkari Shops (Disposal in Auction) Rules Excise Commissioner has no authority to permit shifting of a foreign liquor shop, from one range to a totally different range.

Cases Referred (4)

IMPORTANT POINT
Under the Kerala Abkari Shops (Disposal in Auction) Rules Excise Commissioner has no authority to permit shifting of a foreign liquor shop, from one range to a totally different range.