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SUPREME COURT OF INDIA
Dipak Misra, Vikramajit Sen, JJ.
Kerala State Toddy Shop Contractors Association - Appellant
Vs.
T.N. Prathapan - Respondent
C.A. Nos. 8895-8896 of 2014 (Arising out of SLP (C) Nos. 29744-29745/2009), C.A. Nos. 889-8900/2004 (Arising out of SLP (C) Nos. 27542-27543/2009), C.A. Nos. 8897-8898/2014 (Arising out of SLP (C) Nos. 29746-29747/2009), C.A. Nos. 8901-8902/2014 (Arising out of SLP (C) Nos. 29748-29749/2009) and C.A. Nos. 8903-8904/2004 (Arising out of SLP (C) Nos. 35846-35847/2009)
Decided On: 01.09.2014
Kerala Abkari Act - Railways Act, 1890 - Section 71 - Constitution of India - Article 226 - Rule 28A - Sustain the challenge - Remain closed on the days specified – Sustain such a plea and leads evidence - On a perusal of said Rule it is luminous that licensed premises for sale of liquor are required to remain closed on first day of all English calendar month - There can be no dispute that first September is first day of English calendar month for purpose of IMFL shops - As is evincible an apprehension was expressed before High Court that State Government was inclined to issue a notification to overlook said date ban prohibiting first day of English calendar - Quite apart from that High Court further directed the State Government to pass orders in case of toddy shops to remain closed on said judgment and order is under assail in present batch of appeals by Kerala State Toddy Shop Contractors Association and others – Held, If rule has to be struck down as imposing unreasonable or discriminatory standards it could not be done merely on any a priori reasoning but only as a result of materials placed before Court by way of scientific analysis - It is obvious that this can be done only when party invoking protection of Article 14 makes averments with details to sustain such a plea and leads evidence to establish his allegations - That where a party seeks to impeach validity of a rule made by a competent authority on ground that rules offend Article 14 burden is on him to plead and prove the infirmity is too well established to need elaboration - In State of Andhra Pradesh and Ors it has been observed that when an averment is made that a particular Rule is invalid for violating Articles 14and 16 Constitution relevant facts showing how it is discriminatory ought to have been set out - In Union of India Ltd two-Judge Bench has observed thus - There was no pleading that Rule upon which reliance was placed by Respondent was ultra virus Railways Act, 1890 - In absence of pleading to that effect trial Court did not frame any issue on that question - High Court of its own proceeded to consider validity of Rule and ultimately held that it was not in consonance with relevant provisions of Railways Act, 1890 and consequently held that it was ultra virus - This view is contrary to settled law - From aforesaid authorities, it is clear as day that in absence of any assertion how a particular provision offends any of Articles of Constitution same cannot be adverted to - It is a settled principle of law that a person who assails a provision to be ultra must plead same in proper perspective - As court find in the case at hand, the High Court was required to interpret Rule 28A of the Rules - Under such circumstances High Court has fallen into grave error by declaring another Rule as discriminatory and unreasonable - Suo motu assumption of jurisdiction in this regard is totally uncalled for and, therefore that makes judgment and order declaring Rules as discriminatory sensitively susceptible - Consequently appeals are allowed and the judgment and order of High Court, as far as it declares Rules as ultra in respect of the toddy shops being kept open on first day of all English Calendar month is set aside - There shall be no order as to costs – Appeal allowed
JUDGMENT :
Dipak Misra, J.
1. Leave granted. A batch of public interest litigation was filed before the High Court of Kerala at Ernakulam Under Article 226 of the Constitution of India highlighting the grievance that as per Rule 28A of Foreign Liquor (Compounding, Blending and Bottling), Rules 1975 (for brevity 'the Rules') framed under Kerala Abkari Act (for brevity 'the Act'), the licenced premises for sale of liquor in respect of the licences issued under the Rules are required to remain closed on the days specified in the Rules but the State of Kerala and its functionaries, in violation of Rule 28A, had issued orders to allow the sale of Indian Made Foreign Liquor ("IMFL" for short) on 1st of September, 2009 from the licensed premises which was not legitimate in law and totally unlawful.
2. As the factual matrix would uncertain, the High Court referred to Rule 28A of the Rules and took note of Section 71 of the Act and opined that unless Rules are amended, the Government is bound to direct the IMFL shops to be closed on 01.09.2009. At that juncture, the High Court took note of the prescription made Under Rule 7(11)(vii) of the Kerala Abkari Shops Disposal Rules, 2002 (for short, the 2002 Rules) wherein a proviso has been incorporated in 2003 by virtue of which the toddy shops have been allowed to function on the first day of English calendar month. The High Court opined that the proviso appended to the said Rule is directly contrary to the main Rule and creates a discrimination between the sale of IMFL and toddy shops and hence, the exemption granted under the proviso to 2002 Rules is discriminatory as there is no apparent rationale or logic for having different standards in respect of IMFL and toddy shops. Being of this view, the High Court issued a writ of Mandamus restraining the Respondent-State and its functionaries from departing or deviating from the existing ban of opening the licensed premises for the liquor as provided Under Rule 28A of the Rules, i.e. the ban prohibiting the first day of the English calendar month; 1st September, 2009. Quite apart from that, the High Court further directed the State Government to pass orders in case of toddy shops to remain closed on 1stSeptember, 2009. The said judgment and order is under assail in the present batch of appeals by the Kerala State Toddy Shop Contractors Association and others.
3. We have heard learned Counsel for the parties and perused the record.
4. Rule 28A of the Rules reads as follows:
"28A The licensed premises for sale of liquor in respect of all the licences under these rules shall remain closed on the following days:
(i) Birthday of Mahatma Gandhi,
(ii) Birthday of Sree Narayan Guru,
(iii) Commemoration day of Mahatma Gandhi,
(iv) Samadhi day of Sree Narayana Guru,
(v) The days of poll and two days preceding the day of the General Election or Bye-election and on the day counting of votes and the day succeeding thereto.
(vi) The day of poll and the day preceding that day of the elections/bye-elections day the Corporation/Municipal Wards/Panchayat Constituencies and in the day of counting of votes and the day succeeding thereto.
(vii) The first day of all English calendar month."
5. On a perusal of the said Rule, it is luminous that licensed premises for sale of liquor are required to remain closed on the first day of all English calendar month. There can be no dispute that first September is the first day of English calendar month for the purpose of IMFL shops. As is evincible, an apprehension was expressed before the High Court that the State Government was inclined to issue a notification to overlook the said date. It was contended on behalf of the State that the Government has power to issue notification Under Section 71 of the Act. The High Court, as has been stated herein-before, opined that unless the Rules are amended, no notification, contrary to the rules, could be issued. As far as this aspect is concerned, there has been no challenge by any vendor dealing w
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