- (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 1st September, 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.