SC to hear Kerala bar owners' plea Thursday

In a reprieve to bar owners in Kerala, the Supreme Court Wednesday told the state government not to enforce its order prohibiting functioning of non-five-star hotel bars till Thursday when the court will take up for hearing a batch of petitions challenging the ban order.

The apex court bench of Justice Anil R. Dave and Justice Uday Umesh Lalit asked the state government not to take any precipitative steps as it would hear the matter Thursday when it was mentioned by a battery of senior lawyers representing different petitioners.

"Don't take any precipitative action till tomorrow (Thursday)," Justice Dave said as senior counsel Kapil Sibal appeared for the Kerala government.

Kerala has passed an order banning the sale of liquor at bars and hotels below the five-star category and the ban order comes into force Sep 11.

The petitions were opposed by the Kerala government, which had filed a caveat.
Opposing the pleas, Sibal told the court that the plea of the bar owners was before the court and if it is allowed, then their licences would be restored.

Saying that there was no question of suspending the excise commissioner's Aug 28, 2014, notice cancelling the licences, Sibal told the court that the issuance of the bar licence was provisional and subject to the excise policy which was in making.

Representing a batch of the petitioners, senior counsel Rajiv Dhawan argued that their licences should survive till the March 31, 2015, expiry date.

He said the bar licence policy was violative of Article 14 as it differentiated between the five-star hotels and others.

Dhawan said the excise commissioner's order cancelling the licences was "arbitrary". "This is an arbitrary cancellation," Dhawan told the court.

Senior counsel C.A. Sundram - appearing for another aggrieved party - told the court he was not saying that his licence should remain operative till its expiry date but they should be heard.

"It is going on for 12 years. It has a large scale ramifications. Heavens will not fall. It will cause irreparable hardships to the employees working in hotels and bars. Lakhs of people will be affected," Sundram said.

"We have already made our bookings. Tourists are coming," Sundram added.
The petitioners have challenged the Sep 3 order of the Kerala High Court by which it ruled that there was no ground to hold that there could not have been a decision that would affect the entire class of persons, who were granted FL3 licenses except those having five-star classifications.

Assailing the high court order that licences were being cancelled by the government in exercise of its plenary powers, the petitions said the government was entitled to exercise the plenary power only when the law is silent but the government was not entitled to exercise such power when the area is covered by the statutory provision.

The petitioners have contended that as on April 2, 2014, the renewal of FL3 license was governed by Rule 13 (3) and 13 (B) of the Foreign Liquor Rules.

They said the government is empowered to exercise such power only within the ambit of the said rules, thus the action of the government exercising the power of renewal outside the Foreign Liquor Rules cannot be justified as if it is an exercise of its plenary power, as held by the high court.