Kerala High Court
Parameswaran Ayyappan vs State Of Kerala on 11 November, 2019
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
MONDAY, THE 11TH DAY OF NOVEMBER 2019 / 20TH KARTHIKA, 1941
WP(C).No.21499 OF 2018(J)
PETITIONER/S:
PARAMESWARAN AYYAPPAN, S/O.PARAMESWARAN, AGED 81
YEARS, KANADIPARA HOUSE, MATHIRAPILLY P.O.,
KOTHAMANGALAM.
BY ADVS.
SRI.ALEXANDER JOSEPH
SMT.AKHILASREE BHASKARAN
RESPONDENT/S:
1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO
GOVERNMENT, DEPARTMENT OF INDUSTRIES, GOVT.
SECRETARIAT, THIRUVANANTHAPURAM, PIN-695003.
2 THE INDUSTRIES OFFICER, THALUK INDUSTRIES OFFICE,
REVENUE TOWER, KOTHAMANGALAM-686691.
3 THE COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM, PIN-
695001.
4 THE DEPUTY COMMISSIONER OF EXCISE, ERNAKULAM-682018.
5 THE CIRCLE INSPECTOR OF EXCISE, KOTHAMANGALAM-686691.
6 THE FOOD SAFETY OFFICER, OFFICE OF THE FOOD SAFETY
OFFICER, KOTHAMANGALAM-686691.
7 THE COMMISSIONER OF FOOD SAFETY,
HEALTH AND FAMILY WELFARE DEPARTMENT, REGIONAL
ANALYTICAL LABORATORY, KAKKANAD, ERNAKULAM-682030.
8 KOTHAMANGALAM MUNICIPALITY, REPRESENTED BY ITS
SECRETARY, KOTHAMANGALAM-686691.
BY SENIOR GOVERNMENT PLEADER, SMT.SHEEJA C.S.
BY SRI.PEEYUS A KOTTAM, SC, FOR MUNICIPALITY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.11.2019, ALONG WITH WP(C).28740/2019(N), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
W.P.C)Nos.21499/2018 & 28740/2019 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.MUHAMED MUSTAQUE
MONDAY, THE 11TH DAY OF NOVEMBER 2019 / 20TH KARTHIKA, 1941
WP(C).No.28740 OF 2019(N)
PETITIONER/S:
GEORGE JOSEPH, AGED 65 YEARS, S/O.JOSEPH ANTONY,
THEKKUMKATTIL HOUSE, GOOD SHEPHERD STREET,
KOTTAYAM-686001.
BY ADVS.
SRI.C.S.MANILAL
SRI.S.NIDHEESH
RESPONDENT/S:
1 THE STATE OF KERALA, REP. BY THE SECRETARY (TAXES)
ABKARI, SECRETARIAT, TRIVANDRUM-695036.
2 THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE,
PUBLIC OFFICE BUILDING, TRIVANDRUM-695036.
OTHER PRESENT:
BY SENIOR GOVERNMENT PLEADER, SMT.C.S.SHEEEJA
SRI PEEYUS A. KOTTAM, SC, FOR MUNCIPALITY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.11.2019, ALONG WITH WP(C).21499/2018(J), THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
W.P.C)Nos.21499/2018 & 28740/2019 3
JUDGMENT
[ WP(C).21499/2018, WP(C).28740/2019 ] Dated this the 11th day of November 2019 These writ petitions are filed challenging orders of the Excise Commissioner. Since a common point of law has arisen in these writ petitions, it is appropriate to dispose of the same by a common judgment.
2. The writ petitioner in W.P.(C) No.21499/2018 submitted an application for licence to start Gooseberry Winery. This application was filed in accordance with the Kerala Winery Rules, 1970 (for short, the Rules). The said application was rejected by Ext.P9 letter stating that there were no enough infrastructural facilities to start a Gooseberry winery. According to the petitioner, the infrastructure facilities could be provided only once the licence is given to him and without the same he could not have invested on any infrastructure.
3. The writ petitioner in W.P.(C) No.28740/2019 is a scientist by profession who claims to have a Bio-Chemical Engineering Degree and having expertise in making wine from Coconut. He submitted an application for producing wine from Coconut. This was also rejected by the Excise Commissioner W.P.C)Nos.21499/2018 & 28740/2019 4 stating that there is no Rule to grant licence to produce wine from Coconut.
4. The learned Government Pleader placed before me a recent Government Order dated 26.10.2019. It appears that the Government had in-principle agreed to allow production of wine or Beer from fruit extractions. It also appears to have agreed that it can be distributed through IMFL agencies. The Government also directed the Excise Commissioner to take necessary action for the amendment of the Rules.
5. The above Government Order appears to promote the manufacturing of wine and beer from fruits with less liquor intensity. It is to be noted that the Government already formulated the Rules invoking the power conferred under Section 29 of the Abkari Act. Wine is defined under Rule 2(12) of the Rules as follows:-
"wine" means the product obtained on alcoholic fermentation of grape juice or pulp or juice of any other fruit natural or forfeited, the alcoholic content of which does not exceed 42 per cent of proof spirit.
6. It also refers to the procedure for application for licence. The manner in which such application is to be considered is stipulated in Rule 4 of the Rules,. The reading of the aforesaid provision makes it abundantly clear that there exists a procedure for the grant of licence for manufacturing wine. W.P.C)Nos.21499/2018 & 28740/2019 5 Therefore, if the petitioners' applications fall within the Rules, there cannot be any difficulty to take such application to its logical conclusion in accordance with the Rules therein. The Government order as such may not have an application in this matter as the Government Order is also related to the production of beer from fruits extracts.
7. In both cases, the petitioners' applications are related to wine alone. That be so, these applications should be considered in accordance with the procedure as contemplated under Rules 3 and 4 of the Rules. It is made clear that those stipulations as referred to in the aforesaid Rules alone need be considered for the purpose of granting licence.
8. It is stipulated in Rule 4 of the Rules that the Commissioner after conducting an enquiry, shall make a report to the Government in regard to the eligibility or otherwise of the applicant for the licence. The granting of licence would depend upon the approval of the Government. Therefore, the impugned orders are set aside. The Commissioner shall consider the application in accordance with the Rules within a period of two months and thereafter report to the Government. The Government shall take appropriate decision therein within a further period of two months.
W.P.C)Nos.21499/2018 & 28740/2019 6
It is made clear that the Excise Commissioner as well as the Government need to consider the applications of the petitioners only if the petitioners are able to establish that their product satisfies the meaning of 'wine' as referred to under Rule 2(12) of the Rules.
Accordingly, these writ petitions are disposed of as above.
Sd/-
A.MUHAMED MUSTAQUE JUDGE ln W.P.C)Nos.21499/2018 & 28740/2019 7 APPENDIX OF WP(C) 21499/2018 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE APPLICATION DATED 7.07.2015 SUBMITTED OF THE PETITIONER.
EXHIBIT P2 TRUE COPY OF THE REGISTRATION CERTIFICATE ISSUED BY THE 6TH RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE CERTIFICATE OF EXAMINATION ISSUED BY THE FOOD ANALYST UNDER THE 7TH RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE LETTER/INFORMATION DATED 22.11.2017 OF STATE PUBLIC INFORMATION OFFICER UNDER THE 3RD RESPONDENT TO PETITIONER.
EXHIBIT P5 TRUE COPY OF THE LICENSE DATED 20.09.2016 ISSUED BY THE 8TH RESPONDENT TO THE PETITIONER. EXHIBIT P6 TRUE COPY OF THE APPLICATION DATED 3.3.2018 OF THE PETITIONER TO THE 3RD RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE COVERING LETTER ENCLOSING EXHIBIT P7 TO THE 3RD RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE APPLICATION DATED 25.06.2018 OF THE PETITIONER TO THE 1ST AND 2ND RESPONDENT. RESPONDENTS EXHIBITS:NIL.
//TRUE COPY// P.A.TO JUDGE W.P.C)Nos.21499/2018 & 28740/2019 8 APPENDIX OF WP(C) 28740/2019 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE S.S.I REGISTRATION CERTIFICATE DATED 19.2.2001.
EXHIBIT P2 TRUE COPY OF THE GOVT. ORDER DATED 31.7.1997.
EXHIBIT P3 TRUE COPY OF THE LETTER BY KSIDC DATED 21.9.1995.
EXHIBIT P4 TRUE COPY OF THE LETTER FROM APEDA DATED 28.9.1995.
EXHIBIT P5 TRUE COPY OF THE REQUEST OF THE PETITIONER DATED 16.10.2017.
EXHIBIT P6 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 10.8.2018.
EXHIBIT P7 TRUE COPY OF THE INERT OFFICE COMMUNICATION BY THE DEPUTY EXCISE COMMISSIONER DATED 23.8.2017.
EXHIBIT P8 TRUE COPY OF THE REQUEST OF THE PETITIONER DATED 3.3.2018.
EXHIBIT P9 TRUE COPY OF THE REQUEST OF THE PETITIONER DATED 15.10.2018.
EXHIBIT P10 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 1.12.2018.