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of <h1>Supreme Court affirms Division Bench ruling on Excise Commissioner's authority in liquor shop relocation</h1> <h3>M.S. JAYARAJ Versus COMMISSIONER OF EXCISE KERALA & ORS.</h3> The Supreme Court upheld the Division Bench's judgment that the Excise Commissioner lacked authority to permit the shifting of a foreign liquor shop from ... - Issues Involved:1. Locus standi of the third respondent.2. Authority of the Excise Commissioner under Rule 6(2) of the Kerala Abkari Shops (Disposal in Auction) Rules, 1974.3. Interpretation of Rule 6(2) and its proviso.4. Refund of the amount deposited by the appellant.Detailed Analysis:1. Locus Standi of the Third Respondent:The appellant argued that the third respondent, being a rival businesswoman, lacked locus standi to file the writ petition. The Division Bench of the High Court dismissed this objection, noting that the third respondent, as a licensee with an FL-3 licence running a hotel-cum-restaurant in Karukachal Panchayat, had her rights affected by the order permitting the appellant to shift his shop. The Supreme Court acknowledged the expanded concept of locus standi, citing precedents where public interest litigation allowed broader access to courts. Thus, the Court decided not to dismiss the motion solely on the ground of locus standi, emphasizing that if the Excise Commissioner's order was illegal, it should not remain operative regardless of who challenged it.2. Authority of the Excise Commissioner under Rule 6(2):The core issue was whether the Excise Commissioner had the authority under Rule 6(2) to permit the shifting of a foreign liquor shop from one range to another. The single judge of the High Court initially upheld the Commissioner's authority, but the Division Bench reversed this decision, stating that the Commissioner lacked such power. The Supreme Court analyzed Rule 6(2) and its proviso, concluding that the proviso allows removal of a shop only within the limits specified in sub-rule (2) and not beyond the notified range.3. Interpretation of Rule 6(2) and Its Proviso:Rule 6(2) explicitly prohibits locating a foreign liquor shop outside the notified limits. The proviso to Rule 6(2) allows the Excise Commissioner to order removal of a shop to a place outside the limits specified in sub-rule (2), which pertains to distances from certain institutions. The Supreme Court found that the proviso does not extend to allowing the Commissioner to shift a shop to a different range entirely. The only exception to the absolute ban in sub-rule (1) is provided in sub-rule (3), which vests such power in the Board of Revenue (or Government post-1997) under specific exigencies like public peace or morality. Hence, the Court concurred with the Division Bench's interpretation that the Commissioner's order was ultra vires.4. Refund of the Amount Deposited by the Appellant:The appellant's plea for a refund of the deposit made pursuant to the bid was acknowledged by the Supreme Court. The Court directed that the appellant could apply for a refund, and the Government should decide on the application within one month.Conclusion:The Supreme Court upheld the Division Bench's judgment that the Excise Commissioner lacked authority to permit the shifting of a foreign liquor shop from one range to another under Rule 6(2) of the Auction Rules. The appeal was dismissed, and the appellant was advised to seek a refund of his deposit from the Government.
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