M.S. JAYARAJ versus COMMISSIONER OF EXCISE, KERALA AND ORS.

Citation: [2000] SUPP. 3 S.C.R. 616 · Decided: 29-09-2000 · Supreme Court of India · Bench: K.T. THOMAS · Disposal: Dismissed

Judgment (excerpt)

A 
B 
M.S. JAY ARAJ 
v. 
COMMISSIONER OF EXCISE, KERALA AND ORS. 
SEPTEMBER 29, 2000 
[K.T. THOMAS AND R.P. SETHI, JJ.] 
Kera/a Abkari Shops (Disposal in Auction) Rules, 1974; Rules 6(1) 
and 6(2). 
C 
Excise Range-Foreign liquor shop-Shifting of-From one Range to 
D 
another-Permissibility of-Held : Excise Commissioner has no authority to 
permit such shifting-Kera/a Abkari Act. 
Practice and Procedure : 
Locus standi-Illegal order-Writ petition against-Held : An. illegal 
order cannot remain alive and operative on the sole ground that the person 
who filed the writ petition has no locus standi-Constitution of India, 1950, 
Art. 226. 
The appellant was the highest bidder in the auction for vending foreign 
E liquor in an Excise Range. But the appellant failed to find a suitable place to 
locate the shop within the boundaries of the said Excise Range. However, the 
1st respondent-Excise Commissioner granted permission to the appellant for 
shifting the shop to another Range under Rule 6(2) of the Kerala Abkari Shops 
(Disposal in Auction) Rules, 1974. 
F 
The 3rd respondent, who was running a hotel and restaurant in the 
latter range, filed a writ petition before the High Court for quashing the 
aforesaid permission on the ground that the 2nd respondent had no authority 
to pass such an order, which was allowed. 
G 
On behalf of the appellant it was contended that the High Court ought 
not to have entertained the writ petition since the 3rd respondent had no locus 
standi to file the petition; and that the High Court failed to trace the power of 
the Excise Commissioner which power had been conferred on him by the first 
proviso to Rule 6(2) of the Auction Rules. 
H 
Dismissing the appeal, the Court 
616 
M.S. JAY ARAJ v. COMMISSIONER OF EXCISE 
617 
HELD : 1.1. The repeated usage of the negative expression "no" in sub- A 
rules (1) and (2) of Rule 6 of the Kerala Abkari Shops (Disposal in Auction) 
Rules, 1974 looms large therein. By such usage the legislature has imposed 
absolute ban on certain activities e.g. "no licensee shall be permitted to sell 
foreign liquor outside the local limits specified in his licence" as in sub-rule 
(1) and "no foreign liquor shop shall be located outsid.e the notified limits" B 
as in sub-rule (2). Then again "no foreign liquor shop shall be located" within 
the distance fixed as from certain institutions. There is neither proviso nor 
any explanation as for sub-rule (1) but the proviso is placed only below sub-
rule (2). Therefore, sub-rule (1) must work out by itself unexpanded or 
unrestricted by any other clause. [624-C-D] 
1.2. The only exception from the ban contained in sub-rule (1) is provided 
in sub-rule (3). A superior authority like the Government alone is vested with 
the power of transfer of liquor shops from one locality to another in "the 
interest of public peace or morality or on grounds of expediency." Even for 
c 
the Government to order transfer of a shop from one locality to another it 
cannot be done unless there is existence of the exigency indicated in sub- D 
rule (3). Therefore it cannot be conceived that a subordinate officer can do it 
without any such exigency. [625-A-B] 
2. The Excise Commissioner has no authority to permit shifting of a 
foreign liquor shop from one Range to a totally different Range. Consequently, 
the order passed by the first respondent-Excise Commissioner in favour of E 
the appellant is without authority of law and it has been rightly struck down 
by the High Court. [625-D] 
3. In view of the finding of the High Court that the order of the Excise 
Commissioner was passed in violation of law, the motion should not be nipped 
out solely on the ground of locus standi. If the Excise Commissioner bas no F 
authority to permit a liquor shop owner to move out of the Range (for which 
auction was held) and have his business in another Range it would be improper 
to allow such an order to remain alive and operative on the sole ground that 
the person filed the writ petition has strictly no locus standi. [623-A-B] 
Chairman, Railway Boardv. Chandrima Das, [2000) 2 SCC 465, relied G 
on. 
Nagar Rice & Flour Mills v. N. Teekappa Gowda, [1970] 1 SCC 575; 
Jasbhai Motibhai Desai v. Roshan Kumar Haji Ahmed, (1976) 1 SCC 671, 
Thammanna v. K. Veera Reddy, (1980) 4 SCC 60 and Dr. Duryodhan Sahu v. 
Jitendra Kumar, [1998) 7 sec 273, referred to. 
H 
A 
B 
618 
SUPREME COURT REPORTS (2000] SUPP. 3 S.C.R. 
People's Union for Democratic Rights v. Un

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