KERALA STATE TODDY SHOP CONTRACTORS ASSOCIATION versus T.N. PRATHAPAN, MLA & ORS.

Citation: [2014] 7 S.C.R. 589 · Decided: 01-09-2014 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Appeal(s) allowed

Judgment (excerpt)

[2014] 7 S.C.R. 589 
KERALA STATE TODDY SHOP CONTRACTORS 
ASSOCIATION 
v. 
T.N. PRATHAPAN, MLA & ORS. 
(Civil Appeal Nos. 8895-8896 OF 2014) 
SEPTEMBER 01, 2014 
[DIPAK MISRA AND VIKRAMAJIT SEN, JJ.] 
A 
B 
Foreign Liquor (Compounding, Blending and Bottling), 
Rules t'975: r. 28A - Writ petition filed beforeHigh Court C 
highlighting the grievance that as perr.28A of the Rules of 
1975 framed under Kera/a Abkari 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 Kera/a and its functionaries, in 
D 
violation of r. 28A, had issued orders to allow the sale of IMFL 
on 1st of September, 2009 from the licensed premises which 
was totally unlawful - High Court was required to interpret r.28A 
of the Rules - While disposing of the writ petition, High Court 
declared r. 7(11 )(vii) of Kerela Abkari Shops Disposal Rules 
E 
2002 by virtue of which toddy shops were allowed to function 
on 1st of September, 2009 as discriminatory and 
unreasonable - On appeal, held: Suo motu· assumption of 
jurisdiction by High Court was totally uncalled for - High Court 
fell ihto grave error by declaring another Rule as 
F 
discriminatory - The judgment of the High Court, as far as it 
declares the 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 - Kera/a Abkari Act - s. 71. 
Constitution of India, 1950: It is a settled principle of law G 
that a person who assails a provision to be ultra vires must 
plead the same in proper perspective - While interpreting the 
effect and impact of a particular rule relating to a different 
589 
H 
590 
SUPREME COURT REPORTS 
[2014] 7 S.C.R. 
A sphere, the High Court in exercise of its power under Article 
226 of the Constitution, cannot declare another rule as 
unconstitutional without any challenge to the same and further 
without impleading the affected parties even in representative 
capacity. 
B. 
A PIL was filed before the High Court under Article 
226 of the Constitution of India highlighting the grievance 
that as per Rule 28A of the Foreign Liquor 
(Compounding, 8'.lending and Bottling), Rules 1975 
framed under Kerala Abkari Act, the licenced premises for 
C sale of liquor in respect of the licences issued under the 
Rules are required Ito remain closed on the days specified 
in the Rules but tho State of Kerala and its functionaries, 
in violation of Rule 28A, had issued orders to allow the 
sale of Indian Made Foreign Liquor (IMFL) on 1st of 
D September, 2009 from the licensed premises which was 
totally unlawful. 
The High Court referred to Rule 28A of the Rules and 
took note of Section 71 of the Kerala Abkari Act and 
opined that unless Rules are amended, the Government 
E is bound to direct the IMFL shops to be closed on 
01.09.2009. The High Court took note of the prescription 
made under Rule 7'(11) (vii) of the Kerala Abkari Shops 
Disposal Rules, 2002 (2002 Rules) wherein a proviso was 
incorporated in 2003 by virtue of which the toddy shops 
F were allowed to function on the first day of English 
calendar month. The High Court opined that the proviso 
appended to the said Rule was directly contrary to the 
main Rule and created a discrimination between the sale 
of IMFL and toddy shops and therefore the exemption 
G granted under the proviso to 2002 Rule was 
discriminatory as there was 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 restrai_ning the respondent-State and 
H its functionaries from departing or deviating from the 
KERALA STATE TODDY SHOP CONTRACTORS 
59.1 
ASSOCIATION v. T.N. PRATHAPAN, MLA 
existing ban of opening the licensed premises for the 
A 
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. The High Court further 
directed the State Government to pass orders in case of 
toddy shops to remain closed on 1st September, 2009. s 
The issue for consideration was 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 rule as unconstitutional without any C 
challenge to the same and further without impleading 

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