Contempt of Court Case (Civil) No.694 of 2014 (arising out of W.P.(C) No.11964/2014)

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS MONDAY, THE 31[ST] DAY OF JULY 2023 / 9TH SRAVANA, 1945 CON.CASE(C) NO. 694 OF 2014 AGAINST THE IMPUGNED INTERIM ORDER DATED 02.05.2014 IN WP(C) ``` ``` NO.11964/2014 OF HIGH COURT OF KERALA ``` ## **`PETITIONER/PETITIONER:`** ``` BAISIL ATTIPPETY @ BASIL A.G., S/O GEORGE, AGED 58, ATTIPETTY HOUSE, NAYARAMBALAM.P.O, KOCHI-682509. ``` ``` BY ADV SRI.A.G.BASIL ``` ## **`RESPONDENT/2ND RESPONDENT IN THE WRIT PETITION:`** ``` SRI.A.AJITHKUMAR, SECRETARY TO GOVERNMENT, TAXES (G) DEPARTMENT, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. ``` ``` BY ADVS. ``` ## **`OTHER PRESENT:`** ``` SRI.P.A.HARISH-SR.GP ``` ``` THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR ADMISSION ON 31.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **ALEXANDER THOMAS, J.** **------------------------------------------------** ## **Contempt of Court Case (Civil) No.694 of 2014** _[arising out of the impugned interim order dated 02.05.2014 in W.P.(C) No.11964/2014]_ **--------------------------------------------** Dated this the 31[st ] day of July, 2023 ## **JUDGMENT** The aforecaptioned contempt of court case has been instituted alleging non-compliance of the directions issued by this Court as per Anx.A1 interim order dated 02.05.2014, rendered by this Court in W.P.(C). No.11964/2014, filed by the petitioner herein. 2. The Anx.A1 interim order dated 02.05.2014 reads as follows:- ## _“ O R D E R_ _Issue notice before admission to all the respondents._ _The second respondent Taxes Secretary will file a statement/ affidavit through the Government Pleader on the application for interim relief sought for in this writ petition within two months.”_ 3. This Court had earlier passed interim order dated ## 08.07.2014, in this Contempt of Court case, which reads as follows:- ## _“O R D E R_ _“This Contempt of Court Case arises out of the order dated 2.5.2014 passed by this Court in W.P.(C) No.11964/2014. The prayer sought for in the said petition was for a mandamus to direct the State of Kerala and the Taxes Departments of the Government of Kerala to implement the report submitted by the One Man Commission headed by the Hon'ble Sri. Justice M.Ramachandran, former Judge of this Court and for directions to implement the recommendation of the Commission that liquor outlets should conduct sale only between 11.30 am to 10 p.m. and for direction to the Excise authorities to ensure that liquor is sold_ Cont. of Court Case (C) No.694 of 2014 2 _only to persons who are of the age of 21 years, and above on the basis of valid identity card and for a direction to the State of Kerala to file a detailed report before this Court with regard to the steps taken to implement the aforementioned recommendations of Justice M.Ramachandran Commission. The interim relief sought for by the petitioner was for a direction to the State of Kerala to file a detailed report with regard to the steps taken to implement Ext.P5 (the report of Justice M.Ramachandran Commission) and to direct respondents 2 and 3 to prohibit the sale of liquor before 11.30 am in bar hotels and liquor outlets in Kerala._ _2. This Court by order dated 2.5.2014, while issuing notice before admission in the above matter had directed the Secretary to Government of Kerala in the Taxes Department to file an affidavit as regards the matter sought for in the application for interim relief on the above said recommendations of the Commission._ _3. It is alleging non-compliance with this order that the present contempt petition has been instituted by the petitioner._ _4. The learned Government Pleader submitted on behalf of the respondent on instruction that the One Man Commission report was submitted to the Government on 6.3.2013 and that the Government could not take a policy decision on the recommendations of the said Commission in the light of the judgment of the Apex Court in_ _**State of Kerala v. Surendra Das** reported in 2014(1) KLT 948 (SC) and in view of the Model Code of Conduct declared by the Election Commission on 5.3.2014, for the 16[th] Lok Sabha Election. It was decided by the Government to authorise the Secretary to Government of Kerala in the Taxes Department (‘Taxes Secretary', for short) to submit recommendations on the report of the One Man Commission within 30 days from 2.4.2014 and that the Council of Ministers in the meeting held on 30.4.2014 had also resolved to extent the term granted to the Taxes Secretary for a further period of 15 days to submit his report, as the 30 days granted earlier expired on 2.5.2014. The Taxes Secretary submitted recommendations on the report of the One Man Commission, including the working of liquor shops/ bar hotels to Government on 16.5.2014. It is accordingly submitted that the matter of formulating Abkari Policy based on the recommendations made by the Taxes Secretary on the report of Justice M.Ramachandran Commission is under consideration of the Government. That the matter was placed before the Council of Ministers on 25.6.2014, but a final decision could not be taken. As the matter involves policy decision of the Government, it requires some more time to formulate the larger issues in this regard. It is further submitted by the learned Government Pleader on instructions that though the time limit fixed by this Court as per the aforementioned order dated 2.5.2014 has expired on 1.7.2014, the further steps in this regard as directed by this Court including the filing of the report regarding the action taken by the Government on the Justice M.Ramachandran Commission report etc. could not be filed by the_ Cont. of Court Case (C) No.694 of 2014 3 _respondent within the time limit fixed by this Court as per the aforementioned order dated 2.5.2014. He further submits that there is no willful laches on the part of the respondent to disobey the direction of this Court in the above said order dated 2.5.2014 and that some more time is required to the Government to consider various aspects of the matter and then submit an affidavit before this Court on the action taken by the Government on the basis of the report of M.Ramachandran Commission and the report of the Taxes Secretary._ _5. This Court is fully aware that the issues involved in which this matter have various elements of nuances which require fine tuning at the hand of the Government who invariably have to make consultations on a much larger level at the various levels of the Society at large while formulating decisions on the basis of both the Commission report and the report of the Taxes Secretary. A constitutional entity like a Court of record should certainly show due deference to another constitutional entity like the Executive Government, while it has to take decisions on such larger issues. The Executive Government of the day, ultimately, is responsible not only to the Legislature but also to the people at large. But at the same time, as a Constitutional Court is also obligated to remind the Executive Government about its obligations while dealing with the matters, which are essentially with the realm of "res extra commercium" keeping in view the higher principles laid down by our constitution makers as adumbrated in Article 47 of the Constitution of India._ _6. It is by now well established that matters relating to sale of liquor is certainly not within the province of "res commercium" but is one fully within the ambit of "res extra commercium". The Apex Court in the case between_ _**Khoday Distilleries Ltd. and others v. State of Karnataka and others** reported in 1995(1) SCC 574, has dealt with various legal issues arising out of the trade in liquor and the legal principles in this regard has been fully enunciated by their Lordship's of the Apex Court in paragraph 60 of the above said decision, which reads as follows:_ _"60. We may now summarise the law on the subject as culled from the aforesaid decisions._ _(a) The rights protected by Article 19(1) are not absolute but qualified. The qualifications are stated in clauses (2) to (6) of Article 19. The fundamental rights guaranteed in Article 19(1) (a) to (g) are, therefore, to be read along with the said qualifications. Even the rights guaranteed under the Constitutions of the other civilized countries are not absolute but are read subject to the implied limitations on them. Those implied limitations are made explicit by clauses (2) to (6) of Article 19 of our Constitution._ Cont. of Court Case (C) No.694 of 2014 4 _(b) The right to practise any profession or to carry on any occupation, trade or business does not extend to practising a profession or carrying on an occupation, trade or business which is inherently vicious and pernicious, and is condemned by all civilised societies. It does not entitle citizens to carry on trade or business in activities which are immoral and criminal and in articles or goods which are obnoxious and injurious to health, safety and welfare of the general public, ie, res extra commercium, (outside commerce). There cannot be business in crime._ _(c) Potable liquor as a beverage is an intoxicating and depressant drink which is dangerous and injurious to health and is, therefore, an article which is res extra commercium being inherently harmful. A citizen has, therefore, no fundamental right to do trade or business in liquor. Hence the trade or business in liquor can be completely prohibited._ _(d) Article 47 of the Constitution considers intoxicating drinks and drugs as injurious to health and impeding the raising of level of nutrition and the standard of living of the people and improvement of the public health. It, therefore, ordains the State to bring about prohibition of the consumption of intoxicating drinks which obviously include liquor, except for medicinal purposes. Article 47 is one of the directive principles which is fundamental in the governance of the country. The State has, therefore, the power to completely prohibit the manufacture, sale, possession, distribution and consumption of potable liquor as a beverage, both because it is inherently a dangerous article of consumption and also because of the directive principle contained in Article 47, except when it is used and consumed for medicinal purposes._ _(e) For the same reason, the State can create a monopoly either in itself or in the agency created by it for the manufacture, possession, sale and distribution of the liquor as a beverage and also sell the licences to the citizens for the said purpose by charging fees. This can be done under Article 19(6) or even otherwise._ _(f) For the same reason, again, the State can impose limitations and restrictions on the trade or business in potable liquor as a beverage which restrictions are in nature different from those imposed on the trade or business in legitimate activities and goods and articles which are res commercium. The restrictions and_ Cont. of Court Case (C) No.694 of 2014 5 _limitations on the trade or business in potable liquor can again be both under Article 19(6) or otherwise. The restrictions and limitations can extend to the State carrying on the trade or business itself to the exclusion of and elimination of others and/or to preserving to itself the right to sell licences to do trade or business in the same, to others._ _(g) When the State permits trade or business in the potable liquor with or without limitation, the citizen has the right to carry on trade or business subject to the limitations, if any, and the State cannot make discrimination between the citizens who are qualified to carry on the trade or business._ _(h) The State can adopt any mode of selling the licences for trade or business with a view to maximise its revenue so long as the method adopted is not discriminatory._ _(i) The State can carry on trade or business in potable liquor notwithstanding that it is an intoxicating drink and Article 47 enjoins it to prohibit its consumption. When the State carries on such business, it does so to restrict and regulate prediction apply and consumption of liquor which is also an aspect of reasonable restriction in the interest of general public. The State cannot on that account be said to be carrying on an illegitimate business_ _(j) The mere fact that the State levies taxes or fees on the production, sale and income derived from potable liquor whether the production, sale or income is legitimate or illegitimate, does not make the State a party to the said activities. The power of the State to raise revenue by levying taxes and fees should not be confused with the power of the State to prohibit or regulate the trade or business in question. The State exercises its two different powers on such occasions. Hence the mere fact that the State levies taxes and fees on trade or business in liquor or income derived from it, does not make the right to carry on trade or business in liquor a fundamental right, or even a legal right when such trade or business is completely prohibited._ _(k) The State cannot prohibit trade or business in medicinal and toilet preparations containing liquor or alcohol. The State can, however, under Article 19(6) place reasonable restrictions on the right to trade or business in the same in the interests of general public._ Cont. of Court Case (C) No.694 of 2014 6 _(l) Likewise, the State cannot prohibit trade or business in industrial alcohol which is not used as a beverage but used legitimately for industrial purposes. The State, however, can place reasonable restrictions on the said trade or business in the interests of the general public under Article 19(6) of the Constitution._ _(m) The restrictions placed on the trade or business in industrial alcohol or in medicinal and toilet preparations containing liquor or alcohol may also be for the purposes of preventing their abuse or diversion for use as or in beverage."_ _7. The petitioner herein is an Advocate practising before this Court and has been prosecuting the matter as a party-in- person. It is averred by him that he had volunteered to assist the above said Justice M.Ramachandran Commission, while it had called for opinion and views from various members of the Society, including from the members of the Bar of this Court. According to the petitioner, his focus in this proceedings is confined mainly to four aspects which are dealt with in Justice M.Ramachandran Commission Report, viz., i) Liquor should be made available only between 11.30 am to 10 p.m., as recommended in paragraph 64 of Justice M.Ramachandran Commission Report. ii) Liquor should be sold only to the persons who are attained the age of 21. iii) Bill of liquor sold should contain the identity of the purchaser establishing that the purchaser had attained the age of 21. iv) No new outlets of retail sale of liquor be opened._ _8. It is his case that the main recommendation with which this case is concerned for enforcement is regarding the above said first recommendation that liquor should be made available only between 11.30 a.m to 10.p.m. It can also be noted that earlier a Division Bench of this Court by the judgment dated 27.9.2012 in the case_ _**State of Kerala v. Xaviers Residency** reported in 2012 (4) KHC 196 paragraph 5 had taken the view that the Government of Kerala has to seriously examine the aspect of sale and consumption of liquor in the State of Kerala, be confined only between 5.p.m onwards in order to reduce the sale of liquor in the State. It is the policy objective of the State that the State is committed to bring down the level of consumption liquor in the State, keeping in view its obligations arising out of the directive principles of the policy enunciated in Article 47 of the Constitution of India. The Hon'ble Supreme Court in the decision reported in_ _**Fazalur Rehman v. State of U.P.** AIR 1999 SC 3460 has observed that when a Commission report is submitted involving definite public importance, the Government should examine the report expeditiously and with all seriousness and take necessary action thereon based on the decision of the Government in that regard._ _9. The petitioner would urge that his main focus is regarding the_ Cont. of Court Case (C) No.694 of 2014 7 _enforcement of the aforementioned recommendations of Justice M.Ramachandran Commission Report, but that the Government appears to be under the impression that the subject matter of this case is also involved regarding the new licensing policy for the bar hotels in the State for 2014-2015. The petitioner would thus submit that he is not in any way concerned with the above said latter aspect of the matter and that for dealing with the issues regarding the matters which are within the subject matter of the petition instituted by him, the Government should not be asking for more time and should show due deference to the directions of the Court to submit necessary affidavit regarding the action taken by them on the above said recommendation._ _10. Having regard to the nature of the issues involved and as the Government is grappling with many issues involved in this matter, this Court is not now proposing to issue notice on the contempt petition. However, this Court would only direct that the State Government would give its anxious consideration of the aforementioned recommendations of the report of Justice M.Ramachandran Commission especially on the recommendations that bar hotels should be permitted to function only after 11.30. a.m.. etc. The State Government will also give due deference and consideration to the view taken by the Division Bench of this Court in the_ _**State of Kerala v. Xaviers Residency** reported in 2012 (4) KHC 196 in paragraph 5 that the Government should examine the possibility of confining sale and consumption of liquor in the State only from 5.p.m. while taking a decision on these matters. This Court does not want to tie down the Government with a definite time frame, for it is the hope and expectation of this Court that the Government would certainly consider with all seriousness the report of the above said Commission, which the Government itself had appointed, in order to effectuate its obligation to bring down the levels of consumption of liquor in the State. Accordingly, it is observed that the Government may take decision on the issues as aforementioned, within a reasonable time, keeping in view the observations of the recommendations made in the report of Justice M.Ramachandran Commission as well as the aforementioned Division Bench Judgment and the relevant case laws and other relevant aspects of the matter._ _11. The Government Pleader submits that two months may be required for the Government to take a decision in the matter and to file an affidavit in the above case regarding the action proposed to be taken by them on the aforementioned recommendations of the Commission._ _12. Taking into consideration of the various constraints now being faced by the Government, this Court is inclined to observe that the Government may even take larger time and it is so expected that the Government will take necessary decision at least within a period of three months from the date of receipt of a copy of this order. In the meanwhile, the Government would inform this Court in the Contempt Petition as regards the steps so far taken by them on the aforementioned matters,_ Cont. of Court Case (C) No.694 of 2014 8 _within a period of six weeks from the date of receipt of a copy of this order._ _Post this Contempt Case (C) after six weeks._ _Hand over copy of this order to both sides.”_ 4. Today, when the matter had come up for consideration, Sri.K.P. Harish, learned Senior Government Pleader, appearing for the respondent officer would submit that, the respondent has filed affidavit dated 26.09.2014, in this contempt case and that, it has stated in para No.5 thereof that, the major issues connected with the above recommendations made in the report of Mr. Justice M. Ramachandran Commission, has been resolved and that the decision of the Government to close down FL3 licence has been stayed by the Apex Court till 30.09.2014 and the matter is pending before this Court and that, further action in the matter would be depend on the outcome of the pending matters before this Court, etc. The said affidavit dated 26.09.2014, filed by the respondent in this Contempt of Court case, reads as follows:- _“I, A. Ajith Kumar IAS, aged 53 years, S/o. Asokan, residing at Thiruvananthapuram do hereby solemnly affirm and state as follows:-_ > _1. I am the Secretary to Government, Taxes Department, Government Secretariat, Thiruvananthapuram and am the respondent in the above Contempt Case. I am conversant with the facts of the case as disclosed from the relevant records._ Cont. of Court Case (C) No.694 of 2014 9 _2. It is respectfully submitted that this Hon'ble Court as per order dated 08.07.2014 in Contempt Case No.694/2014 that the government will take necessary decision atleast within a period of three months from the date of receipt of this order. In the meanwhile, the Government would inform this court in the contempt petition as regards the steps so far taken by them on the afore mentioned matter within a period of six weeks from the date of receipt of a copy of this order. It is submitted that the order dated 08.07. 2014 has been received on 22.07.2014._ _3. This Hon'ble Court has directed to take decisions on the report of Justice M. Ramachandran Commission especially on the following four aspects viz:_ - _i. Liquor should be made available only between 11.30 AM to 10 PM, as recommended in paragraph 64 of Justice M.Ramachandran Commission Report._ - _ii. Liquor should be sold only to the persons who have attained the age of 21,_ - _iii. Bill of liquor sold should contain the identity of the purchaser establishing that the purchaser had attained the age of 21._ - _iv. No new outlets of retail sale of liquor be opened._ _4. It is most respectfully submitted that Government have formulated the Abkari Policy for the year 2014-15 vide order No.G.O. (MS) 139/2014/TD dated 22.08.2014. A copy of which is produced herewith and marked as Annexure R1(a). In the policy Government have declared many steps for achieving the target "Liquor free Kerala". Government have also decided to close down all the FL-3 licences (Bar Hotels) in the State except those which have Five Star Classification. It has also decided to close down the 10% of the FL-1 retail outlets every year. It has also decided to declare all Sundays as dry day from 05.10.2014. It is also decided that no new FL-1 licence would be issued._ _5. As such the major issues connected with the above recommendation stands resolved. It is respectfully submitted that the decision of the Government to close down FL-3 licence has been stayed by the Hon'ble Apex Court till 30.09.2014. The matter is pending before this Hon'ble Court. Further action in the matter would depend on the outcome of the pending matters before this Honourable Court._ _It is submitted that as directed by this Hon'ble Court a detailed report will be filed within a period of three months as directed in the order dated 08.07.2014._ _All the facts stated above are true to the best of my knowledge, belief and information._ Cont. of Court Case (C) No.694 of 2014 10 _Dated this the 26[th] day of September, 2014.”_ 5. Further, this Court is also apprised that the petitioner (party in person) is now no more. Further, it is also reported that the main matter in Anx.A1 W.P.(C) No.11964/2014, has been disposed of by this Court as per judgment dated 02.06.2023. 6. Taking note of the fact that Anx.A1 interim order has been passed in the W.P.(C)as early as on 02.05.2014 and in view of the subsequent developments and more particularly, taking note of the fact that the main matter in the W.P.(C) itself has been disposed of, there is no necessity to keep this Contempt of Court case any longer. Accordingly, the above Contempt of Court case will stand disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** Skk//01082023