Full Judgment Text
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 8895-8896 OF 2014
[Arising out of Special Leave Petition (C) Nos.29744-29745/2009]
Kerala State Toddy Shop Contractors
Association .. Appellant
VERSUS
T.N. Prathapan, MLA & Ors. .. Respondents
WITH
C.A.Nos. 8899-8900/2014 (@ SLP(C) Nos.27542-27543/2009)
C.A.Nos. 8897-8898/2014 (@ SLP(C) Nos.29746-29747/2009)
C.A.Nos. 8901-8902/2014 (@ SLP(C) Nos.29748-29749/2009)
C.A.Nos.8903-8904/2014 (@ SLP(C) Nos. 35846-35847/2009)
J U D G M E N T
Dipak Misra, J.
Leave granted.
Signature Not Verified
2. A batch of public interest litigation was filed before the
Digitally signed by
Usha Rani Bhardwaj
Date: 2014.09.17
16:59:08 IST
Reason:
High Court of Kerala at Ernakulam under Article 226 of the
Constitution of India highlighting the grievance that as per
2
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
st
Indian Made Foreign Liquor (“IMFL” for short) on 1 of
September, 2009 from the licensed premises which was not
legitimate in law and totally unlawful.
3. As the factual matrix would uncurtain, 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
3
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
st
calendar month; 1 September, 2009. Quite apart from that,
the High Court further directed the State Government to pass
st
orders in case of toddy shops to remain closed on 1
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.
4. We have heard learned counsel for the parties and
perused the record.
5. Rule 28A of the Rules reads as follows:
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“28AThe 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.”
6. 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
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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 with IMFL.
7. What is assailed before this Court is the view
expressed by the High Court as regards Rule 7(11) (vii) of the
2002 Rules. The said Rule has been declared discriminatory.
At the very outset, it is necessary to state that though various
grounds have been asseverated with regard to the justifiability
of the 2002 Rules, regard being had to the provisions
contained in the Act and the definition of toddy as finds place
in Section 3(8) of the Act and the difference between toddy
and the IMFL, we are not inclined to dwell upon the same.
8. The seminal issue for consideration is whether, while
interpreting the effect and impact of a particular rule relating
to a different sphere, the High Court in exercise of its power
under Article 226 of the Constitution, can declare another
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rule as unconstitutional without any challenge to the same
and further without impleading the affected parties even in
representative capacity.
9. As is evident, in the writ petition, there was no assail
to the 2002 Rules. There was no pleading in that regard and
no relief was sought on that score. In this context, we may
profitably notice the observations of this Court in State of
1
Uttar Pradesh V. Kartaar Singh , wherein while dealing
with the constitutional validity of Rule 5 of the Food
Adulteration Rules, 1955, the Court opined thus:
“(15).....if the 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 the Court by way of
scientific analysis. It is obvious that this can
be done only when the party invoking the
protection of Art. 14 makes averments with
details to sustain such a plea and leads
evidence to establish his allegations. That
where a party seeks to impeach the validity
of a rule made by a competent authority on
the ground that the rules offend Art. 14 the
burden is on him to plead and prove the
infirmity is too well established to need
elaboration.”
10. In State of Andhra Pradesh & Anr. V. K.
1 AIR 1964 SC 1135
7
2
Jayaraman & Ors. , it has been observed that when an
averment is made that a particular Rule is invalid for violating
Articles 14 and 16 of the Constitution, relevant facts showing
how it is discriminatory ought to have been set out.
3
11. In Union of India V. E.I.D. Parry (India) Ltd. , a two-
Judge Bench has observed thus:
“There was no pleading that the Rule upon
which the reliance was placed by the
respondent was ultra vires the Railways
Act, 1890. In the absence of the pleading
to that effect, the trial Court did not frame
any issue on that question. The High Court
of its own proceeded to consider the
validity of the Rule and ultimately held
that it was not in consonance with the
relevant provisions of the Railways Act,
1890 and consequently held that it was
ultra vires. This view is contrary to the
settled law...”
4
12. In State of Haryana V. State of Punjab & Anr. ,
reiterating the principle, this Court has held that:
“..... merely saying that a particular
provision is legislatively incompetent
[ground (ii)] or discriminatory [ground (iii)]
will not do. At least prima facie acceptable
grounds in support have to be pleaded to
sustain the challenge. In the absence of
2 AIR 1975 SC 633
3 AIR 2000 SC 831
4 (2004) 12 SCC 673
8
any such pleading the challenge to the
constitutional validity of a statute or
statutory provision is liable to be rejected
in limine.”
13. From the aforesaid authorities, it is clear as day that in
the absence of any assertion how a particular provision
offends any of the Articles of the Constitution, the same
cannot be adverted to. It is a settled principle of law that a
person who assails a provision to be ultra vires must plead
the same in proper perspective.
14. As we find in the case at hand, the High Court was
required to interpret Rule 28A of the Rules. Under such
circumstances, the 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 the judgment and
order declaring the 2003 Rules as discriminatory sensitively
susceptible.
15. Consequently, the appeals are allowed and the
judgment and order of the High Court, as far as it declares the
9
2002 Rules as ultra vires in respect of the toddy shops being
kept open on the first day of all English Calendar month is set
aside. There shall be no order as to costs.
...........…............J.
(DIPAK MISRA)
...........…............J.
(VIKRAMAJIT SEN)
NEW DELHI
SEPTEMBER 01, 2014
10
ITEM NO.23 COURT NO.8 SECTION XIA
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition for Special Leave to Appeal (C) No(s). 29744-29745/2009
(Arising out of impugned final judgment and order dated 28/08/2009
in WPC No. 24769/2009,28/08/2009 in WPC No. 24962/2009 passed by
the High Court Of Kerala At Ernakulam)
KERALA ST. TODDY SHOP CONTRACTORS ASS. Petitioner(s)
VERSUS
T.N.PRATHAPAN,M.L.A & ORS Respondent(s)
(with appln. (s) for intervention/impleadment as respondent and
interim relief and office report)
WITH
SLP(C) No. 27542-27543/2009
(With Interim Relief and Office Report)
SLP(C) No. 29746-29747/2009
(With Office Report)
SLP(C) No. 29748-29749/2009
(With appln.(s) for intervention/impleadment as respondent and
Office Report)
SLP(C) No. 35846-35847/2009
(With Interim Relief and Office Report)
Date : 01/09/2014 These petitions were called on for hearing
today.
CORAM :
HON'BLE MR. JUSTICE DIPAK MISRA
HON'BLE MR. JUSTICE VIKRAMAJIT SEN
For Petitioner(s) Mr. V. K. Biju,Adv.
Mr. Gaurav Srivastava, Adv.
Mr. G. Prakash,Adv.
Mr. Roy Abraham, Adv.
Mr. Himinder Lal,Adv.
Mr. C.S. Rajan, Sr.Adv.
11
Mr. A. Raghunath,Adv.
For Respondent(s) Mr. E. M. S. Anam,Adv.
Mr. Jogy Scaria,Adv.
Mr. K. Rajeev,Adv.
UPON hearing the counsel the Court made the following
O R D E R
Applications are allowed.
Leave granted.
The appeals are allowed accordingly.
(USHA BHARDWAJ) (RENUKA SADANA)
AR-CUM-PS (COURT MASTER)
Signed reportable judgment is placed on the file.