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Supreme Court of India
K.S. RADHAKRISHNAN & DIPAK MISRA, JJ.
State of Kerala & Others – Appellants
Versus
Kandath Distilleries – Respondent
Civil Appeal No. 1642 of 2013 [Arising out of SLP (Civil) No. 9098 of 2009]
Decided On : 22-02-2013
Facts of the Case :
Whether the High Court can issue a Writ of Mandamus under Article 226 of the Constitution of India, directing the State to part with its exclusive privilege, in the matter of granting licence for establishing distilleries under the Foreign Liquor (Compounding, Blending and Bottling) Rules, 1975 read with Section 14 of the Abkari Act.
Findings of the Court :
No duty is, cast on the Commissioner to grant a licence for establishing a distillery unit and no right is conferred on any citizen to claim it as a matter of right. State can always adopt a "restrictive policy", e.g., reducing the number of licences in a particular district or a particular area, or not to grant any licence at all in a particular district, even in cases where the applicants have satisfied all the conditions stipulated in the rules and the policy permits granting of licences.. Court cannot impede the exercise of discretion of an authority acting under the Statute by issuance of a Writ of Mandamus. A Writ of Mandamus can be issued in favour of an applicant who establishes a legal right in himself and is issued against an authority which has a legal duty to perform, but has failed and/or neglected to do so, but such a legal duty should emanate either in discharge of the public duty or operation of law. No legal duty was cast on the Commissioner or the State Government exercising powers under Section 14 of the Act read with Rule 4 of the 1975 Rules to grant the licence applied for. The High Court, cannot direct the State Government to part with its exclusive privilege.Single Judge as well as the Division Bench of High Court held not justified in issuing a Writ of Mandamus directing the issuance of a distillery licence to the respondent. Appeal was allowed
Result : Appeal allowed
Judgment :-
K.S. Radhakrishnan, J.
1. Leave granted.
2. We are, in this appeal, concerned with the question whether the High Court can issue a Writ of Mandamus under Article 226 of the Constitution of India, directing the State to part with its exclusive privilege, in the matter of granting licence for establishing distilleries under the Foreign Liquor (Compounding, Blending and Bottling) Rules, 1975 (for short “1975 Rules”) read with Section 14 of the Abkari Act (for short “the Act”).
3. M/s Kandath Distilleries, respondent herein, claimed to have submitted an application dated 12.1.1987 before the Commissioner of Excise for a licence to establish a compounding, blending and bottling unit in the Palakkad District. Few others had also filed similar applications for licence for setting up distillery units in the State of Kerala. All of them were directed to first obtain the approval of the Government of India for the setting up of new blending and bottling units and, thereafter, to approach the State Government. This Court, however, vide its judgment dated 29.1.1997 in Writ Petition No. 322 of 1996 (Bihar Distillery and Another v. Union of India and Others) took the view that the power to permit the establishment of any industry engaged in the manufacture of portable liquors, including Indian Made Foreign Liquors (IMFLs), beer, country liquor and other intoxicating drinks is exclusively vested in the respective State Governments. Further, it was also held that the power to prohibit and/or regulate the manufacture, production, sale, transport of consumption of such intoxicating liquors is equally that of the States.
4. We notice, during the year 1998 and prior to that, the Commissioner of Excise and the State Government had received large number of applications for setting up of distillery units in various parts of the State. The Commissioner of Excise or the State could not have entertained all those applications and granted the licences for the setting up of large number of distillery units in the State. The State Government, however, entertained four applications favourably and accorded its approval under Section 14 of the Act. The State Government, vide GO (Rt.) No. 291/98/TD dated 20.5.1998, examined the application submitted by M/s Amrut Distilleries in detail and granted approval for issuing a licence by the Excise Commissioner for the establishment of a distillery unit for the manufacture of IMFLs at Kanjkode village in the Palakkad District. The Government also, vide its order dated 6.8.1998, examined the application of M/s Empee Distilleries, Madras, and accorded approval for the grant of licence by the Excise Commissioner for establishing a distillery unit at Kanjkode village in the Palakad District. The application submitted by M/s K. S. Distilleries, Kannur was also considered by the State Government and granted permission to the Excise Commissioner to issue a licence for a distillery unit to be established at Kannur, vide order dated 18.8.1998. The application of M/s Elite Group of Companies was also favourably considered by the Government and accorded permission to the Excise Commissioner for issuing the necessary licence for establishing a distillery unit at Trichur.
5. M/s Kandath Distilleries (respondent) having noticed that its application submitted in the year 1987 for setting up the unit in the Palakkad District was not considered, filed a Revision Petition before the Minister for Excise on 22.11.1998 to consider its application as well for the grant of licence for establishing a distillery unit in the Palakkad district, though it had not raised any dispute with regard to the grant of other two distillery licences for setting up the units in the Palakkad District.
6. We notice that the Excise Commissioner/State Government had received, during the year 1998 and prior to that, large number of applications for licences for establishing distillery units in various districts in the State of Kerala. The Government, ther
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