Ext. P1 application was submitted by the petitioner for granting FL-3 licence for the year ending 1992-93, which was considered by the second respondent and in spite of the recommendation given by the Asst. Excise Commissioner, the same was rejected referring to the amendment to Rule 13(3) of the Foreign Liquor (Amendment) Rules 1992 (Rules in short), observing that after the amendment, the sanctioning authority was the Government and further that the Government have taken a policy decision not to grant any FL3 licence. This was challenged by the petitioner by filing O.P.No.2865 of 1993, which led to Ext.P3 verdict, directing the Government to consider the representation filed by the petitioner and to have it finalised in accordance with law.

2. Pursuant to Ext.P3, the issue was considered by the Government and it was held that the analogy sought to be drawn by the petitioner with the petitioners who were granted licence pursuant to the verdict passed by the Supreme Court in Vijayakumar vs. Commissioner of Excise [1994(1) K.L.T. 9) was not correct or sustainable; that the petitioner stood entirely on a different footing and hence that there was no merit in the contentions raised by the petitioner. Accordingly, Ext.P4 order was passed which was challenged before this court by filing O.P. 14771 of 2001. The above case was disposed of directing the 2nd respondent to consider the matter in the light of the orders/judgment as referred to therein. In compliance with the directions given by this court, the matter was considered by the Government and the claim was rejected as per Ext.P7 which was taken up in the Revision (Ext.P8) filed before the Government. Ultimately, the Government has also turned down the request as per Ext.P9 order dated 20.04.2004. The present Writ Petition has been filed about 3 = years after passing Ext.P9 stating that passing of Ext.P9 was never communicated to the petitioner and that the petitioner could secure a copy of the same only pursuant to Ext. P10 application dated 18.08.2007.

3. The first respondent has filed a counter affidavit sustaining the action pursued by the respondents, asserting that the petitioners case cannot be considered as analogous to the case where licences were already issued by the respondents pursuant to the verdict passed by the Apex Court, as mentioned herein before and that the petitioner was not entitled to get the licence in view of amendment of the relevant rules.

4. Learned counsel for the petitioner submits that the application preferred by the petitioner was on 18.02.1992 and that the relevant rules were amended only on 04.03.1993 though with retrospective effect from 01.04.1992, as stated in paragraph No.5 of the Writ Petition. The learned counsel submits that since Ext.P1 application was filed even much prior to the date of commencement of the amended rules, it should have been considered in the light of the rules then existing in force and not on the basis of the amended rules brought into effect from 01.04.1992. The learned Counsel also placed reliance on the decision rendered by a Division Bench of this court in State of Kerala vs. Raghavan [2009(1) K.L.T. 625]

5. In the above case, the main question considered by this Court was whether the direction to consider the application for FL3 licence with reference to the law prevailing on the date of application was correct, which was answered by the learned single Judge in the positive. The challenge raised by the State against the said finding was rejected by the Division Bench upholding the verdict passed by the learned single Judge.

6. The learned Government Pleader, apart from the distinction sought to be raised with regard to the case of the petitioner and the earlier case of 21 persons who were granted licences pursuant to the judgment passed by the Honourable Supreme Court in 1994 (1) KLT 9 (supra) submits that another Division Bench of this Court doubted the decision rendered by the Division Bench repor