Mathew Antony v. State Of Kerala

1. Door Nos. 7/594 and 7/597 are in one and the same building. The distance between the two is only seven metres. Both of them are within the prohibited distance of 400 metres from temples, mosques eie. During 1987-88 Door No. 7/597 was a whole sale liquor shop run by one Mr. Kunjikannan. When the Beverage Corporation took over he became a retail dealer. Even thereafter, he continued in the same shop for that abkari year. During 1988-89 and 1989-90 one Mr. Vinod was the retail licensee. He also used the same premises as Kunjikannan surrendered possession to him. Duiing the abkari year 1990-91 one Mr. Rarichan was the-successful bidder and licensee. Mr. Vinod did not surrender the building. Hence he used Door No. 7/594. Petitioner challenged his licence by filing an original petition on the ground that it is within the prohibited distance. The Original Petition was referred to a Division Bench doubting the correctness of the decision in Premkumar v. Commissioner Of Excise (1989 (2) KLT 200). By the decision in Surest] Babu v. Board of Revenue (1991 (1) KLT 543) the Division Bench disposed of the matter holding that the licence was improper and illegal as it is in violation of R. 6(2)(a) of the Kerala Abkari Shops Disposal in Auction) Rules, 1974 (for short ‘Rules’). But he was allowed to continue in she premises for the rest of the period, only because a couple of months alone remained. For the year 1991-92, fourth respondent is the licensee. He is also running the shop in the same premises. This original petition was filed as a public interest litigation for quashing the licence and prohibiting liquor transaction in the same prernises on the sameground. The contention of the fourth respondent is that the petitioner is only a namelender set up by Mr. Vinod and he is not having any interst in the locality. In support of that contention it was pointed out that during 1987-88, 1988-89 and 1989-90 when theshop was conducted in the same premises the petitioner did not approach this Court in public interest. Even though on account of the facts mentioned above, I also feel some sort of doubt in the bonaftdes of the public interest claimed by the petitioner, do not think that it is relevant for the purpose of disposing of this original petition.

2. The decision in 1991 (1) KLT 543 was very much relied on by the petitioner in order to contend that the mailer is finally concluded as it relates to the same door number.

3. If the law laid down in that decision continues to govern the field the fourth respondent may not be able to contend otherwisesimpiy on the grounds that he was not a party or that the present petitioner is only a namelcnder as the question to be decided is only the prohibition by the rules.

4. In that case the licensee relied on the second provisoto R. 6(2)(a) whichsaid that in spite of the prohibition the retail shop could be located in the place, if it was located there during the abkari year 1988-89 In 1988-89 the shop was not located in the same door number as it was in Door No. 7/597, even though both are in the same building and the distance between the two is only seven metres. The Division Bench said that the second proviso which is in the nature of an exception of R. 6(2)(a) permits licensing of a foreign liquor retail shop at a place within 400 metres of educational institutions etc. only if that is a place where the shop was located and licensed during the abkari year 1988-89. The Division Bench also held that inorder to apply the proviso both the places must be the same. In other words the view taken was that the proviso could apply only if the two places are exactly identical in all respects. The Division Bench Gonsidered the decision in 1989 (2) KLT 200 and said that even if the previous place was within the vicinity of the present location and the distance is only too short, identity of place cannot be there and therefore the proviso cannot apply. Therefore it was argued by the petitioner that the places are not oneand the same and hence proviso-has no application.

5. The Division Bench said that the expression “place” has to be given a restricted meaning as indicating exactly the identical building or room. That is because “place” has not been defined in the Rule. The definition in S. 3(21) of the Abkari Act was looked into by the Division Bench and it said that it is an inclusive definition and not an exhaustiveone. Adefinition in confirmily with thecontest was therefore given. But after the decision was rendered, the Rule itself was amended by a notification dated 27-3-1991. After the second proviso to Rule 6(2)(a) a note is added. The note says that “place” for thepurpose of this proviso means the same room or another robmin thesame building or a nearby building within a radius of 50 metres in such a way that the existing distance from any educational institution, temple, church, mosque or burial ground, as the ca'se may be, is not reduced further on any circumstance.

6. I am not in favour of the argument that the amendment will not help (he fourth respondent in viewof the decision in 1991 (1) KLT 543 which rendered the licence illegal in respect of the identical premises. The authority behind the amendment and the propriety of the purpose with which it was brought about cannot be questioned. Abkari field is one where there is keen competition. An unsuccessful bidder, especially when he was the licensee for the previous year, could cause difficulties to the new licensee by creating situations as argued by the Government Pleader. She told me that it was to overcome such a situation that the amendment was introduced. Probably the amendment was carried out in order to overcome litis difficulty. The amendment has taken care to see that any rate the prohibited distance is not further reduced when it provided that the existing distance cannot be further reduced on any circumstance.

7. The interpretation ofastatutory provision bya Court of law cannot preclude the rule making authority from amending the rule at a subsequent stage. The rule can be made distinct and different from the one which was interpreted by the court. Simply on the ground that the amendment was brought about to overcome the effect of a decision the Court may not be justified in refusing to give effect to it. Court have always recognised legislative power to remove the basis ofany judicial decision as valid and thereby render the decision of the Court ineffective. (Ramakrishna Pillai v. State of Kerala (1988.(2) KLT 102) and Rev. Fr. Joachin v. State of Kerala (1990 (2) KLT 619)).

8. Section 11 of the Codcof Civil Procedure is applicable only to suits. S. 141 of the Code makes the procedure rcgarding suits applicable to proceedings. Explanation to Sectidn 141 excludes proceedings under Art. 226 from the purview of the Section. Even then general principles of res judicata are applicable to such proceedings also though S. 11 as such is not applicable. Though a decision not interparties may not be res judicata even under general principles which do not take in the rigourof S. 11, the law laid down by the High Courtis binding on it. Decisions may beon questions of facts, questions of law or on mixed question offact and law. Ifadecisionon facts is rendered by applying the relevant provisions of law to the facts the binding nature of the decision on that pointwill come toanendwhen the law is changed subsequently. That is because the law as then stood alone was interpreted in relation to the facts. When the law is changed the cause of action itself is changed. Though the former decision which has become final may continue to bind the parties thereto, when the law is changed and thus the cause of action became different, the new law will have to be applied to the facts in thesubscqucnt case even though facts are same because law applicable isdifferent. The Division Bench rendered thedecision by defining “place” with reference to the law applicable at that time. Now the definition underwent radical changes to embrace another room in the same building or a neafby building within a radius of 50 metres in such a way that the existing distance is not further reduced. The definition of “place” in 1991 (1) KLT 543 cannot therefore be relied on now as the lawbinding the parties in this case. There is no case that Door NO. 7/597 is more than 50 metres away from Door No. 7/594 or that the distance is further reduced. Both are in the same building and as earlier pointed out, the distance is only seven metres as found in the said decision itself. Admittedly, Door No. 7/597 was used for the same purpose continuously from 1987-88 upto the end of 19.89-90. 1 do not think that there is any violation of any of the Rules involved.

9. Original Petition is there fore dismissed.

10. Issue carbon copy to both sides on usual terms.

11. Dismissed,