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2010 (2) Supreme 374
SUPREME COURT OF INDIA
R. V. Raveendran and Surinder Singh Nijjar, JJ.
State of Kerala & Anr. — Appellants
versus
B. Six Holiday Resorts (P) Ltd. & Etc. — Respondents
Civil Appeal No. 983-990 of 2003
Decided on : 13-01-2010
Foreign Liquor Rules -Rule 13(3) - Appeals against non-grant of FL-3 Licence under Foreign Liquor Rules framed under the Akbari Act- Application for grant of FL-3 Licence-Issue in consideration whether should be considered with reference to the Rules as they existed when the application was made or in accordance with the Rules in force on the date of consideration?-Held where the Rule require grant of a licence subject to fulfillment of certain eligibility criteria either to safeguard public interest or to maintain efficiency in administration, it follows that the application for licence would require consideration and examination as to whether the eligibility conditions have been fulfilled or whether grant of further licences is in public interest- Where the applicant for licence does not have a vested interest for grant of licence and where grant of licence depends on various factors or eligibility criteria and public interest, the consideration should be with reference to the law applicable on the date when the authority considers applications for grant of licences and not with reference to the date of application. (Para 12)
Foreign Liquor Rules -Rule 13(3) - Appeals against non-grant of FL-3 Licence under Foreign Liquor Rules framed under the Akbari Act- Issue in consideration whether the amendment to Rule 13(3) of Foreign Liquor Rules substituting the last proviso was valid-Held Rule 13(3) provides for grant of licences to sell foreign liquor in Hotels (Restaurants)- It contemplates Excise Commissioner issuing licences under the orders of 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 renewal of such licences- 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 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 policy of the State not to grant fresh licences until further orders- This was evident from explanatory note to amendment dated 20.2.2002 - When the amendment was made on 20.2.2002, the object of the newly added proviso was to stop the grant of fresh licences until a policy was finalized- A proviso may either qualify or except certain provisions from the main provision; or it can change very concept of the intendment of the main provision by incorporating certain mandatory conditions to be fulfilled;or it can temporarily suspend the operation of the main provision-Ultimately the proviso has to be construed upon its terms- Merely because it suspends or stops further operation of the main provision, proviso does not become invalid- The challenge to the validity of proviso hence was rejected-Appeals filed by State allowed in part and the appeals filed by applicants for licences dismissed. (Paras 17, 18)
Facts of the Case :
Issue in consideration in present case was whether Application for grant of FL-3 Licence should be considered with reference to the Rules as they existed when the application was made or in accordance with the Rules in force on the date of consideration?
Findings of the Court :
Held where the Rule require grant of a licence subject to fulfillment of certain eligibility criteria either to safeguard public interest or to maintain efficiency in administration, it follows that the application for licence would require consideration and examination as to whether the eligibility conditions have been fulfilled or whether grant of further licences is in public interest. Where the applicant for licence does not have a vested interest for grant of licence and where grant of licence depends on various factors or eligibility criteria and public interest, the consideration should be with reference to the law applicable on the date when the authority considers applications for grant of licences and not with reference to the date of application.
Result : Ordered accordingly.
ORDER
R.V. Raveendran, J. —
The appeals relate to non-grant of FL-3 Licence under the Foreign Liquor Rules (‘the rules’ for short) framed under the Akbari Act. The appeals arise from the common judgment dated 16.7.2002 of the Kerala High Court in a batch of cases wherein the amendment dated 20.2.2002 to Rule 13(3) of the Rules and consequential rejection of applications for FL-3 licences were challenged. CA Nos. 983-990 of 2003 are filed by the State and the other appeals are by the applicants for FL-3 licences.
2. For convenience, we will refer to the facts of the case of M/s. B.Six Holiday Resorts (P) Ltd. (referred to as ‘the applicant’ for short), who is the respondent in C.A. No. 983 of 2003 and the appellant in C.A. No. 998 of 2003.
3. The applicant constructed a resort hotel at Munnar. The applicant’s restaurant therein was classified by the Ministry of Tourism, Government of India, as an approved restaurant. On 11.12.2000, the applicant made an application for a FL-3 licence under the Rules. As the said application was not considered, the applicant approached the High Court. The High Court, disposed of the writ petition (O.P.No.824/2001) by order dated 9.1.2001 with a direction to the excise authorities to consider and dispose of the application within three weeks. The application was considered and rejected by order dated 19.5.2001 on the ground that the 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 Judge dismissed it by order dated 6.11.2001. He held that though the first three grounds of rejection were not tenable, in view of policy of the Government not to grant FL-3 licences for the time being, a mandamus could not be issued to the State Government to grant a licence contrary to its policy. The writ appeal filed by the applicant was allowed on 14.12.2001. The Division Bench of the High Court agreed with the learned single Judge that the first three grounds of rejection were not tenable. In regard to the fourth ground of rejection, the division bench felt that the policy put forth, was rather vague and the Government cannot abdicate its function under the Rules to consider and grant licences, by alleging some vague policy. It therefore directed the Excise Commissioner to decide the applicant’s application for FL-3 licence within two weeks by a speaking order.
4. Thereafter, the applicant gave a representation dated 19.12.2001. The Excise Commissioner considered it and again rejected the application on 27.12.2001 on the ground that the applicant’s hotel was only a restaurant approved by Ministry of Tourism, Government of India, but it was not a classified restaurant (two star and above) as required under Rule 13(3). Feeling aggrieved, the applicant initiated contempt proceedings. The High Court on being informed that a new Excise Commissioner had taken charge, granted an opportunity to the
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