K. Sreedharan, J.@mdashFourth respondent in O. P. 6430/1993 is the appellant. That Original Petition was filed by three petitioners questioning the conduct of Toddy Shop No. 107/91-94 of Aluva Excise Range. According to the writ petitioners, fourth respondent was conducting the shop in violation of the provisions contained in the Kerala Abkari Shops (Disposal in Auction, Rules, 1974, hereinafter referred to as "the Rules", inasmuch as it is located within the prohibited distance from St. Antony''s Church, Aluva, a Mosque and St. Mary''s High School. Consequently writ petitioners prayed for a writ of mandamus directing respondents 1 to 3 in the Original Petition, who are the State of Kerala, Board of Revenue and Assistant Commissioner of Excise, Ernakulam respectively, to cancel the licence issued to the 4th respondent to run the Toddy Shop in Survey No-261/1-A of Aluva Village. Learned Single Judge by judgment dated 2-8-1993 directed third respondent to take appropriate action as per the provisions contained in the Rules within a reasonable time. The appellant - fourth respondent questions the said decision in this appeal. The main arguments advanced by the learned counsel representing the appellant are as follows.- The licence granted to the appellant was for three years from 1991 to 1994. At the time of the grant, it was legal and valid in terms of the Rules. The subsequent amendment of the Rules cannot adversely affect the appellant''s licence. The State and its officers are estopped from interfering with his licence during its period. They are barred by the principle of promissory estoppel from interfering with the conduct of business in the licensed premises. The unexpired period of the licence is only for a few months, till the end of March, 1994. Appellants is entitled to carry on the business in the premises till the expiry of that period. We shall proceed to deal with these contentions herein below.
2. Appellant got a licence to run a Toddy Shop in Survey No. 261/l-A of Aluva Villege. The licence was for a period of three years, from 1-4-1991 to 31-3-1994. Toddy shop was being located in the same property during the previous abkari years. Consequently as per the provisos to Rule 6(2) of the Rules the Toddy Shop could be located in Survey No. 261/l-A. The said provisos were deleted with effect from 1 - 4 - 1993. The amendment so brought out to Rule 6(2) of the Rules was challenged before this Court in a batch of writ petitions. This Court by judgment dated 25-6-1993 upheld the amendment of the Rules. Consequently, after 1-4-1993 no one can claim protection on the basis of the provisos which have been deleted. The consequence, therefore, is that no Toddy, Arrack or Foreign Liquor Retail Shop shall be located within 400 metres from an educational institution, Temple, Church, Mosque or Burial Ground. It is the admitted case that Toddy shop No. 107/91 - 94 run by the appellant is situated within the prohibited distance from a Church, a Mosque and an educational institution.
3. The licence granted to the appellant specifically provided that it is subject to the further amendments brought out to the Abkari Act, Rules and Circulars to be issued by the Commissioner of Excise. Clause - 39 of the licence is categoric and specific in this regard, that the licensee will be bound by the subsequent changes in the Act, Rules and Circulars. By virtue of this specific provision contained in the licence, according to us, appellant cannot be allowed to contend that the amendment brought out to Rule 6 (2) cannot affect his licence. As per the amended provision, as stated earlier, no toddy shop can be located within 400 metres from an educational institution, Church or Mosque. Therefore, after 1-4-1993 the location of the shop belonging to the appellant in the present premises is against Rule 6 (2) of the Rules.
4. Learned counsel representing the appellant advanced an argument that his client obtained the licence in 1991 for running the toddy shop upto 31-3-1994. At the time of the grant, it was in conformity with the provisions contained in Rule 6 (2) of the Rules. That licence cannot be adversely affected by the subsequent amendment because the amendment was not given retrospective operation. Therefore, the appellants right to run the toddy shop in Survey No. 261/l-A of Aluva Village cannot be interfered with. We find it difficult to accept this argument. The amendment of Rule 6 (2) of the Rules came into force with effect from 1-4-1993. With effect from that date, no toddy shop can be located within the prohibited distance. In that sense the provision is having only prospective operation. The result is that Toddy, Arrack and Foreign Liquor Retail Shops, which were located within the prohibited distance prior to 1-4-1993, will have to be moved out of the prohibited distance. After the amendment, appellant is not to have his toddy shop located within 400 metres from an educational institution, Church or Mosque.
5. In 1991 the shop could be located in Survey No. 261/1 - A because it was located in that place during the previous abkari year. The proviso to Rule 6 (2) of the Rules allowed the same. Since the Excise Department granted the licence allowing the appellant to locate it in Survey No. 261/1-A of Aluva Village, it is argued, those authorities are estopped from contending that the shop cannot be located in the same property during the tenure of that licence. This argument of the learned counsel, we are afraid, cannot be sustained. Principle of promissory estoppel cannot be availed of by the appellant against a statutory rule. The amendment to Rule 6 (2) was brought out by the Government in exercise of the powers conferred on it by Sections 18-A and 29 of the Abkari Act. Section 69 of the Act provides that such rules and notifications have the force of law and are to be read as part of the Act itself. So, the amendment of Rule 6 (2) of the Rules was a legislative function of the Government and no one can plead promissory estoppel against the same. This legal position is well established. If any authority for this proposition is required, reference may be made to the following observation made by the Supreme Court in
Of course we must make it clear and that is also laid down in Motilal Sugar Mills case (AIR 1978 SC 621) (supra), that there can be no promissory estoppel against the legislature in the exercise of its legislative functions nor can the Government or public authority be debarred by promissory estoppel from enforcing a statutory prohibition. It is equally true that promissory estoppel cannot be used to compel the Government or a public authority to carry out a representation or promise which is contrary to law or which was outside the authority or power of the officer of the Government or of the public authority to make.
In public interest Government have taken a policy decision that no Toddy, Arrack or Foreign Liquor Retail Shop should be located within 400 metres from an educational institution, Church, Mosque, etc. That policy decision has been translated into statutory rule. Appellant cannot be allowed to defeat that statutory provision on the plea of promissory estoppel.
6. Learned counsel representing the appellant raised yet another contention, namely that the right granted to the appellant to run the Toddy shop in survey No. 261/1-A of Aluva Village as per the licence granted in 1991 cannot be interfered with during the life time of that licence. We find precious little in this argument. The licence granted to the appellant specifically provided that its validity would depend upon the further amendments to the Abkari Act, Rules and circulars to be issued in future. Subsequent to the issue of that licence, the amendment to Rule 6(2) of the Rules was brought into effect. The licence must yield to that amendment. The principles which are applicable to trades, which can be carried out freely, cannot apply to the business in liquor. This is because of the impact of this trade, namely the trade in liquor, on the public and the society due to its inherent pernicious nature. Therefore we have no doubt in our mind that the authorities of the Excise Department are entitled to interfere with the business of the appellant in view of the amendment brought to Rule 6 (2) of the Rules. Lastly is was contended by the learned counsel representing the appellant that a Division Bench of this Court in O. P. 9276/1990 allowed the licensee to carry on business in foreign liquor in a building located within the prohibited distance, since the unexpired portion of the licence was short. In that case the grant of the licence was sought to be justified on the ground of the second proviso to Rule 6 (2) of the Rules, i.e. on the ground that the shop was located in the same premises during the previous abkari year. In fact during the previous year the shop was not located in the same building, but in a building not far off from the licensed premises. Therefore this Court allowed the licensee to continue the business in the licensed premises since the unexpired portion of the licence was only a couple of months. The position in this case is entirely different. Consequent on the amendment to Rule 6(2) of the Rules, the location of the appellant''s shop in the licensed premises has become illegal. Further the unexpired portion of the licence runs to seven months. Therefore the decision in O.P. 9276/1990 cannot be of any help to the appellant.
The learned Single Judge has rightly directed the Assistant commissioner of Excise, Ernakulam to take appropriate action as per the provisions contained in the Rules within a reasonable time. We find no ground to interfere with the said direction. The Writ Appeal is accordingly dismissed.
