Judgment : The common issue involved in almost all these cases is as to the right of the petitioners to get renewal of the FL3 licence which was valid and functional as on 31.03.2007, by virtue of the benefit provided under the 6th proviso to Rule 13(3) of the Foreign Liquor Rules (FLR in short), notwithstanding the requirements to be satisfied in view of the amendment to Rule 19 brought into effect from 1-4-2007. 2. The grievance of the petitioners is that the applications submitted for enabling them to continue the business, effecting necessary changes as to the 'death' or 'retirement' of some of the existing partners have been thrown down, stating that the petitioners do not satisfy the norms for approving the 'reconstitution' and to continue the business, for not having the mandatory requirement of 'two star' status brought into force w.e.f. 01/04/2007 by amending Rule 19 of the FLR. In some cases, imposition of the prescribed charges for granting permission in tune with the amended Rules which came into operation from 01/04/2007 is also under challenge on the ground that the applications in this regard had been preferred much prior to coming into force of the said amendment. Most of the petitioners have challenged the 'vires' of the Rules as well, stating that it is beyond the rule making powers conferred under Section 29 of the Kerala Abkari Act and further when the offence with regard to the reconstitution of the Firm/Board of Directors of the Company without "prior approval" of the Excise Commissioner is very much compoundable under Section 67(2) of the Kerala Abkari Act. It is also contended that the petitioners are entitled to have their licence renewed as a matter of right, by virtue of the 6th proviso to Rule 13 of the Foreign Liquor Rules which stipulates that such licensees who were doing the business on the basis of the licences which were valid and functional as on 31/03/2007, are entitled for renewal; i.e., without satisfying any requirements under the amended Rule 19, brought in w.e.f. 01/04/2007. 3. It is seen that the applications preferred by the concerned petitioners have been turned down by the Excise Commissioner, referring to the fact that the applicants do not satisfy the requirements under the amended Rules (Rule 19 of (ii) and 19(iv) of the FLR) for not having the "two star" status. 3. It is seen that the applications preferred by the concerned petitioners have been turned down by the Excise Commissioner, referring to the fact that the applicants do not satisfy the requirements under the amended Rules (Rule 19 of (ii) and 19(iv) of the FLR) for not having the "two star" status. In other cases, necessary sanction has been given, imposing the prescribed charges for effecting the reconstitution of the Partners of the Firm or that of the Board of Directors of the Company and also the amount prescribed for effecting the change in name of the licensee. 4. The impugned action on the part of the respondents is being defended by them stating that the Rules have been made well within their power and competence and hence intra vires to the Constitution. It is pointed out that the right to conduct trade in liquor, not being any fundamental right in view of the authoritative pronouncement of law by the Apex Court and further since the applications submitted by the petitioners are to be considered on the basis of the law as it exists on the date of consideration, the petitioners are not entitled to get any relief. It is also the contention of the State/Department, that the establishments of the petitioners were lying defunct for more than six months after 31.03.2007 and hence, by virtue of the 5th proviso to Rule 13 of the FLR, the licences are not liable to be renewed under any circumstances. 5. For ascertaining the scope and ambit of the relevant provisions of law, it is very much necessary to have a look at Rule 13(3) of the FLR, which is extracted below: "13(3) Foreign Liquor 3 Hotel (Restaurant) licence: licence in this Form may be issued by the Excise Commissioner under the orders of Government in the interest of promotion of tourism in the State to Hotels which have obtained 3 star, 4 star, 5 star, 5 star deluxe, heritage, heritage grand or heritage classic classification from Ministry of Tourism, Govt. of India , where the privilege of sale of Foreign Liquor in such hotel have been purchased on payment of an annual rental of Rs.22,00,000 (Rupees twenty two lakhs only). But no such licence shall be issued to Hotels which are located within 200 metres from an Educational Institution, Temple, Church, Mosque or Burial Ground. of India , where the privilege of sale of Foreign Liquor in such hotel have been purchased on payment of an annual rental of Rs.22,00,000 (Rupees twenty two lakhs only). But no such licence shall be issued to Hotels which are located within 200 metres from an Educational Institution, Temple, Church, Mosque or Burial Ground. Hotels other than those in the private sector having 4 star, 5 star, 5 star deluxe classification will be exempted from the distance restrictions in the interest of promotion of tourism in the State. In the case of hotels in the private sector of the above categories and hotels having heritage, heritage grand and heritage classic classification issued by Ministry of Tourism, Govt. of India, no such licence shall be issued if located within 50 metres (Fifty metres only) from any Educational Institutions, Temple, Church, Mosques, Burial Grounds or Scheduled Caste/Scheduled Tribe Colonies. The applicant shall produce from the Abkari Workers Welfare Fund Inspector a certificate to the effect that he has remitted before the date of application for the licence/renewal of licence, the arrears of contributions, if any, payable upto the 31st day of December of the preceeding year. The existing licensees who do not maintain two star standards will be allowed time up to 31.03.2007 to upgrade their standards to two star. Their licence will be renewed till that date. Failure to upgrade the standard of those hotels would lead to cancellation of licence and forfeiture of rental paid by them. licensees shall have no claim for compensation. The applicant shall produce from the Abkari Worker's Welfare Fund Inspector a Certificate to the effect that he has remitted before the date of application for the licence/renewal of licence, the arrears of contributions, if any, payable upto 31st day of December preceeding year. The question whether a hotel or restaurant conforms to the standard of Two Star Hotel shall be determined in accordance with the specifications for classification of star Hotels issued by the Department of Tourism and in case of doubt or dispute, the decision of the Excise Commissioner shall be final. The cost of liquor shall be billed along with the cost of meals. The cost of liquor shall be shown separately in the bill and the duplicate copies thereof shall be retained for inspection by the officers of the Excise Department. The cost of liquor shall be billed along with the cost of meals. The cost of liquor shall be shown separately in the bill and the duplicate copies thereof shall be retained for inspection by the officers of the Excise Department. The licensee shall purchase his supplies of Foreign Liquor only from such FL9 licensees in the State as may be permitted by the Excise Commissioner. Provided that where the Commissioner is satisfied that the condition specified in this sub-rule are not capable of being imposed on the restaurants situated in airports, railway stations and such other places, he may, with the previous sanction of Government, relax any of the said conditions or impose any new conditions. Note:-(1) "Church" means a public place where prayer is offered by Christians. "Educational Institutions" means schools or colleges under the control of the State Education Department or Central Board of Education and which has been duly recognized by the Government. "Mosque" means public place where prayer is offered by Muslims. "Temple" means a place of public and religious worship by Hindus were deity is installed under a building and includes a mutt also; Provided that any structure on the road side pavement or in a compound of a private building with or without deity shall not be considered as a Temple, Church, Mosque. Provided further that if any Educational Institution/Temple/Church/Mosque or Burial Ground comes into existence subsequent to the grant of licence it shall not disentitle such bar attached hotels for continuance. Note(2) : In calculating the distance the basis will be shortest pathway/lance/street/road generally used by the public and the same will be measured from gate to gate. Provided also that such bar licences, having disputes on distance rules and shifting outside Municipal Corporation area, including those of Approved Restaurants, existing as on 1st April 2004 shall be regularized. Provided also that the licences of any bar hotel that remain defunct for more than six months either during the period of validity of the licence or after its expiry, shall not be renewed. Provided further that all existing licences not having the above classification and are functional as on 31st March, 2007 shall be regularized. " 6. Provided also that the licences of any bar hotel that remain defunct for more than six months either during the period of validity of the licence or after its expiry, shall not be renewed. Provided further that all existing licences not having the above classification and are functional as on 31st March, 2007 shall be regularized. " 6. The sixth proviso to the above Rule which was brought into effect from 01.04.2007, simultaneously amending Rule 19 incorporating certain terms/conditions for granting renewal of 'reconstitution' of the Firm/Board of Directors of the Company and prescribing "two star" status as essential, clearly states that all existing licences not having the above classification ("two star" classification) and were functional as on 31.03.2007 shall be regularized. This means irrespective of the status of the establishment, the licensees who were continuing as on 31.03.2007 were giving an 'enblock green card' to have their licences renewed, notwithstanding the absence of "two star" status prescribed under Rule 19 for granting approval to effect reconstitution of the Firm or the Board of Directors of the Company. 7. It is true that the 'fifth proviso' to Rule 13 (3) places an embargo in granting renewal, if the licence was lying defunct for six months or more after 31.03.2007. But to attract the said stipulation, there has necessarily to be some lapse, failure or inaction on the part of the licensee to make him ineligible. To put it more clear, if the licensee had approached the departmental authorities seeking for renewal of the licence well on time, simultaneously meeting the requirements as it existed then and if the matter was kept pending by the department or if it was wrongly rejected for some or other ground, thereby making the licence defunct for six months or more, it cannot be a ground to deny the benefit of renewal referring to the mandate under the 'fifth proviso' to Rule 13 (3) and hence the reliance placed by the State/Department to the said provision in the cases herein cannot be of any significance or consequence. 8. To understand the scope of the respective clauses brought in by way of amendment to Rule 19, it is very much necessary to go through the relevant provisions "before the amendment" and "after the amendment", simultaneously analyzing the other relevant provisions in the Statute. 8. To understand the scope of the respective clauses brought in by way of amendment to Rule 19, it is very much necessary to go through the relevant provisions "before the amendment" and "after the amendment", simultaneously analyzing the other relevant provisions in the Statute. Rule 19, as it existed earlier, is extracted below: Rule 19: "Under no circumstance shall any licence obtained under this notification, be sold, transferred or sub-rented without the previous sanction of the Excise commissioner". The words "without the previous sanction of the Excise Commissioner" were subsequently omitted as per SRO 257/03 w.e.f 25/3/2003, thus stipulating a blanket prohibition. Probably, on wiser thoughts, the permissive stipulation was brought back by virtue of the amendment to the Rule w.e.f. 01.04.2005 enabling sale, transfer or subrenting of the licence with the 'previous sanction' of the Excise Commissioner, simultaneously adding some other conditions as well, as required to be met on 'reconstitution' of a partnership Firm or of the Board of Directors of the Company, resulting in change of ownership and also prescribing the requisite fees payable for recording the 'reconstitution' and also for changing the name of the licensee. Later, the prescribed fees were enhanced simultaneously stipulating the necessity to satisfy "Two Star" status for recognizing the constitution/re-constitution, by virtue of the 'second proviso' to Rule 19(iv) added w.e.f. 01.04.2007. 9. The said Rule (Rule 19) after the concerned amendment is extracted below: Rule(19)(i): "Under no circumstances shall any licence obtained under this notification be sold, transferred or sub rented without the previous sanction of the Excise Commissioner. (ii) Reconstitution of partnership by addition or deletion of members or reconstitution of Directors in a Company resulting in change of ownership which owns/manages or operates any licence issued under this rule shall be deemed to be transfer of licence. (iii) Reconstitution of partnership/ Directors of a company may be allowed on payment of Rs.10,000/- (Rupees ten thousand only) (iv) Change of name of licensee may be allowed on payment of Rs.10,000/- (Rupees ten thousand only) Provided that such change shall be allowed only if the incumbent in whose name the licence is to be granted is eligible otherwise for obtaining a licence under these rules." Provided further that, constitution/reconstitution of partnership deed/Director Board of a Company will be allowed only if the hotel is having "two star" classification certificate issued by Ministry of Tourism, Govt. of India". 10. of India". 10. While bringing about the conscious change to Rule 19, it is also to be borne in mind that 'Rule 19A' which was inserted by SRO 334/04 w.e.f 06/04/2004 was deleted. Rule 19A which disappeared from the statute book from 01/04/2005 is very much relevant herein which hence is extracted below: 19A. Notwithstanding anything contained in rule 19, (a) where a company registered under the Companies Act, 1956 (Central Act 1 of 1956) or a firm makes a request in writing for change in the name of the personnel in whose name the licence of the Company or the firm is issued, consequent upon change in the name of such persons other than by way of change in the constitution of the firm, the Excise Commissioner may allow such request upon payment of a fee of Rs.10,000 (Rupees ten thousand only) and make appropriate endorsements in the licence and the agreement if any. (b) where upon death of a licensee a request is made from the legal heirs of the deceased licensee for change in the name of the licence holder to such legal heir or heirs as they nominate the Excise Commissioner may also allow such request upon payment of Rs.10,000 (Rupees ten thousand only). Provided that any such changes in the name of the licence holder will not be deemed to be a transfer of licence. Provided further that such change shall be allowed only if the incumbent whose name the licence is to be granted is eligible otherwise for obtaining a licence under these rules." 11. Sub Rule (b) of Rule 19(A) as it stood earlier clearly shows that, upon the death of a licensee, the legal heir of the deceased licensee was entitled to have effected change of name upon payment of the prescribed sum of Rs.10,000/-and the "first proviso" thereunder stipulated in unequivocal terms that such changes in the name of the licence holder will not be deemed to be a transfer of licence. 12. That part, even as per the amended provisions (Rule 19(i) of the Rule), transfer or sub renting is made permissible with 'previous sanction' of the Excise Commissioner. In the instant cases, no sale or sub renting is involved and the only question is whether there is any mode of 'transfer'. 12. That part, even as per the amended provisions (Rule 19(i) of the Rule), transfer or sub renting is made permissible with 'previous sanction' of the Excise Commissioner. In the instant cases, no sale or sub renting is involved and the only question is whether there is any mode of 'transfer'. The word 'transfer' has been clarified by Sub Rule (ii) of Rule 19 stating that reconstitution of partnerships by addition or deletion of members or reconstitution of directors in a company resulting in change of ownership which owns/manages or operates any licence issued under the Sub Rule shall be deemed to be transfer of licence. To put it more clear, mere reconstitution of the firm or board of directors of a company will not, by itself, attract the transfer of licence contemplated therein and for attracting the same, such reconstitution should invariably result in change of ownership. 13. In three cases (W.P.C. Nos.28698, 28699 and 23870 of 2007) admittedly, the reconstitution of the partnership is only on the death of some of the partners and the rights and liabilities have been redistributed among the surviving partners, in tune with the terms of the Deed. In other words, the privilege under the licence is continued to be enjoyed by such persons who were already enjoying the same along with the deceased partners and there is no question of any 'addition or deletion' of partners involving any 'transfer' of the privilege. Almost same is the position with regard to the case involved in WP(c) No.6626/2008 as well, where the reconstitution was sought for, pursuant to retirement of some partners. The rights and liberties to the surviving/remaining partners are clearly discernible from the relevant partnership deeds which reveal that the partnerships were 'at will' and that 'death' or 'retirement' of a partner would not dissolve the Firm and that the surviving/remaining partners could very well proceed with the trade/business. This being the position, absolutely no question of transfer of the licence as contemplated under Rule 19(ii) is involved in the above four cases and hence the petitioners therein are hereby declared as entitled to have their licence renewed in view of the admitted fact that their licence was valid and functional as on 31/3/2007 and very much entitled to the benefit of the '6th proviso' to Rule 13(3) of the Foreign Liquor Rules. 14. 14. Before proceeding with the merits of the other cases, it is necessary to deal with the challenge raised by the petitioners against the rules; particularly Rule 19(ii) and Rule 19 (iv) of the Foreign Liquor Rules as amended w.e.f 01/04/2007. The first contention of the concerned petitioners with regard to Rule 19(ii) is that the restriction has been placed only in respect of a Partnership Firm and a Company while the same is not made applicable to a Co-operative society or such other institutions who stand on the same footing. It is further stated that such restriction has been brought in, contrary to the right to reconstitute the Firm/Board of Directors in tune with the relevant provisions of the Indian Partnership Act/Companies Act 1956 and hence that the amended rule is not within the rule making power of the State under Section 29 of the Kerala Abkari Act. The petitioners have also placed reliance on Section 67(2) of the Kerala Abkari Act, wherein it is provided to compound the offence of reconstituting the Firm/Board of Directors of the Company without 'prior approval' of the Excise Commissioner, on payment of the prescribed amount in this regard and as it stands so, it is contended there is no power or competence to prescribe a 'prohibitory clause' under the Rules, without any regard to the mandate under the Act. 15. As already discussed hereinbefore, Rule 19 as it stood earlier provided for sale, transfer or sub renting of the licence with the 'prior approval' of the Commissioner, which was subsequently taken away, bringing about an absolute ban as per the amendment brought into force from 06/04/2004; which however was reversed later, followed by the impugned amendment brought into effect from 01/04/2007 stipulating the specific instance and the manner in which the licence and the approval for such institutions are to be dealt with. The amended rule, in no way offends the specific provisions under the Act. Same is the position with regard to the prescription brought in by the Government stating that, for considering the reconstitution of the Firm/Board of Directors of the Company, it was necessary that the establishment should have had "two star" status, which is very much with due regard to the other relevant provisions under the Act and Rules as in existence on the date of bringing about the amendment for granting FL3 licence. 16. 16. It is of course true that any Partnership Firm or the Board of Directors of a Company can be reconstituted under the relevant provisions of the Indian Partnership Act or the Companies Act 1956, as the case may be. But it does not mean that all such reconstitution should be blindly recognized and accepted by the State/Department for issuing or to renew the licence for trading liquor, which is not at all a fundamental right, in view of the settled position of law. The privilege to vend liquor is always subject to the 'Abkari Policy' formulated and notified by the Government and the administrative wisdom in giving shape to such policy is not liable to be scrutinized by this Court, when there is no violation of any statutory prescriptions or the fundamental right. That apart, there is no plea of malafides, arbitrariness or discrimination in dealing with the case of the petitioners and that such cases have been considered and dealt with by the State/Departmental authorities using the same magnifying glass. As pointed out by the State/Department in the counter affidavits filed, the impugned stipulations are very much in tune with the 'Abkari Policy' of the State and the Abkari Act is a special statute applicable to the whole State, enacted with the assent of the President of India. The law declared by the Apex Court in 2007(2) KLT 270 stands entirely on a different pedestal (on encroachment into the arena specifically covered by the ID Act), having rendered when the rules under challenge stipulated to provide employment to one of the erstwhile Arrack workers who lost their employment pursuant to the ban of manufacture and sale of arrack, by compelling the auction bidders of Toddy Shops to give employment to one of such persons in the toddy shops, for enjoying the privilege under the licence given. As such, the challenge raised by the petitioners against the relevant rules stating it as ultra vires to the Constitution fails and it does not hold any water at all. 17. As such, the challenge raised by the petitioners against the relevant rules stating it as ultra vires to the Constitution fails and it does not hold any water at all. 17. However, another important aspect to be noted is that the applications preferred by the petitioners with regard to the reconstitution before the commencement of Rule 19 (ii) and 19 (iv) have been rejected by the Government/Departmental authorities referring to the rule position as on the date of considering the applications for which reliance is placed on some decisions rendered by the Apex Court and also by this Court. This Court is, of course, aware of the law laid down by the Apex Court in Kuldeep Singh vs. Govt. of NCT of Delhi ( AIR 2006 SC 2652 ), wherein it was held that the right to trade in liquor being not a fundamental right, the application for renewal of the licence though was preferred earlier, had to be considered in tune with the 'Abkari Policy' for the particular year to be commenced from the first of April, i.e, as on the date of consideration of the application and not on the basis of the date of application. The legal position in this regard has also been considered by this court as the per the decision reported in Thankamma Esthappan vs. State of Kerala [ 2009 (2) KLT 695] whereby, it was held that the policy which would be applicable is one which is prevailing on the date of grant and not the date on which the application has been filed. In the above cases, the issue was with regard to the right of renewal of the licence with effect from the next Abkari year, i.e., from the 1st of April onwards and since the New Abkari Policy and the amendment were to govern the case with effect from the 1st of April, the applications preferred by the concerned parties before the closure of the previous abkari year were of no consequence and that such applications had to be considered only in accordance with the amended rules came into operation from the 1st of April. 18. 18. Unlike this, in the instant cases, the applications preferred by the petitioners were with regard to the 'reconstitution' of the Firm/Board of Directors of the Company much prior to 01/04/2007 - on which date alone, the new rules (19(ii) and 19(iv) of the Foreign Liquor Rules) came into force. In other words, if the right of the petitioners to have the Firm/Board of Directors of the Company reconstituted on the basis of the law which existed prior to the amendment of the rule 19(ii) and (iv), which is an independent right, the rest of the situation is saved by virtue of the 'sixth proviso' to Rule 13(3) of the FLR, whereby it is stipulated that all the licences which were valid and functional as on 31.03.2007 are entitled to be renewed as a matter of right, i.e, notwithstanding the requirements brought in by virtue of the amendment to Rule 19(ii) and 19(iv). It is also relevant to note in this context that the new Abkari Policy brought into effect from 01.04.2009 clearly provides for transfer of the privilege under the licence in the case of death of a partner, even by bringing in new partners subject to the norms/conditions stipulated in this regard. Since the petitioners were very much entitled to effect the reconstitution of the Firm/Board of Directors of the Company as per the relevant provisions of the Indian Partnership Act and the Companies Act 1956, even during the subsistence of the previous licence, the petitioners had no need, necessity or occasion to wait till the commencement of the new Abkari year. If the applications preferred by the petitioners for 'reconstitution' had been received by the departmental authorities before the commencement of the New Abkari Year i.e., 01/04/2007, when there was not restraint, such applications had necessarily to be considered on the basis of the rules then in existence and not on the basis of the amended rules available on the date of consideration. 19. This Court had occasion to consider the above aspect while passing the judgment dated 30/08/2008 in W.P.(C) No.2933 of 2007 and W.P.C. No.3396 of 2008, wherein the question considered was involving 'reconstitution' of the firm due to 'retirement' of a partner. 19. This Court had occasion to consider the above aspect while passing the judgment dated 30/08/2008 in W.P.(C) No.2933 of 2007 and W.P.C. No.3396 of 2008, wherein the question considered was involving 'reconstitution' of the firm due to 'retirement' of a partner. Since the application was stated as received on 19/03/2007, it was directed to be considered on the basis of the rule that prevailed on 19/03/2007 - the date on which the application was received and not on the basis of the amended rules which came into effect from 01/04/2007. It is not brought to the notice of this Court that the above verdict has been set aside, modified or varied in any manner; nor has even been attempted to challenge from the part of the State/Department. This being the position, this Court does not find any reason to deviate from the said view and as such, it is declared that the applications submitted by the petitioners in the concerned cases seeking for 'reconstitution' of the Firm/Board of Directors of the Company are to be considered and dealt with on the basis of the rule as it existed on the date of receipt of the applications, notwithstanding the subsequent amendment brought into effect from 01/04/2007. More so, when the only impediment with regard to the right to have the 'reconstitution' of the Firm/Board, was the "prior approval" of the Commissioner, which 'offence' was very much compoundable under Section 67 (2) of the Act. 20. However, coming to the factual situation in W.P.(C) 59 OF 2009 , the position is something different. In the said case, as evident from Ext.P9, the licence, which was issued to Smt. Thulasi Suraj, the Managing Director of the petitioner Company and not exactly in the name of the Company itself. That apart, as admitted by the petitioner therein and also as evident from Ext. P2, the application for reconstitution was submitted only on 26.06.2008, i.e., much after the commencement of the amended rule w.e.f. 01.04.2007 whereby the prescribed fees for recognizing the reconstitution and transfer of licence was got substantially increased. Further, the sanction was specifically requested to transfer FL3 licence issued in the name of Thulasi Suraj, the then Managing Director to the name of Shri K.R. Suraj, the proposed Managing Director. Further, the sanction was specifically requested to transfer FL3 licence issued in the name of Thulasi Suraj, the then Managing Director to the name of Shri K.R. Suraj, the proposed Managing Director. Above all, as evident from the second paragraph of Ext.P2, in the Board meeting stated as held on 05.05.2008, it was unanimously decided to effect re-constitution of the Board of Directors and transfer of FL3 licence subject to the approval of the Excise Commissioner. In other words, the factum of reconstitution and the resolution to get the licence transferred as specified, subject to the approval of the Excise Commissioner, being an admitted fact, does not require to be proved any further and as such, the petitioner is estopped from contending that the petitioner being a Company, there is no question of any transfer of the licence at all. As such, the sanction given by the Commissioner vide Ext.P2, subject to the realisation of payment of the prescribed charges in conformity with the amended rules is not, assailable under any circumstances. 21. In W.P(C) No. 28457 of 2007, Ext.P6 order granting the Sanction subject to payment of the prescribed charges for recognizing the reconstitution and transfer of licence, is sought to be sustained by the respondents, placing reliance on Ext.R1(c) letter dated 21.06.2007 written by the petitioner expressing willingness to remit the fees as per the amended rules, without any objection. But it has to be noted that the 'Application' for the relief sought for was dated 21.02.2007 and the said application, admittedly received on 02.03.2007 was directed to be considered vide judgment passed by this Court in W.P.(C) No.11761 of 2007. Further, when the Writ Petition was admitted by this Court on 25.09.2007, it was ordered that, payment of the prescribed amount of Rs.3,50,000/- by the petitioner pursuant to Ext.P6 shall be subject to the result of the Writ Petition. As such, the reliance sought to be placed on Ext.R1(c) is of not much significance. 22. In the above facts and circumstances, the applications preferred by the petitioners in all cases except W.P.(C)59 of 2009 are liable to be re-considered by the Commissioner of Excise, Thiruvananthapuram with specific reference to the date of receipt of the application for "reconstitution" as the basis, taking note of the observations as above. 22. In the above facts and circumstances, the applications preferred by the petitioners in all cases except W.P.(C)59 of 2009 are liable to be re-considered by the Commissioner of Excise, Thiruvananthapuram with specific reference to the date of receipt of the application for "reconstitution" as the basis, taking note of the observations as above. This is equally applicable to the cases involving the granting of approval to the 'reconstitution', imposing the prescribed transfer charges; particularly in view of the position brought to light by the concerned petitioners that there is an ocean of difference between the rates prevailing earlier and the rates prescribed after the amendment w.e.f. 01/04/2007. The stand of the respondents with regard to the compoundable nature of the offence under Section 67(2) of the Kerala Abkari Act is such that it is not a mandatory provision but discretionary to be pursued where the non-seeking of the approval was not deliberate. In none of the counter affidavits filed before this Court, have the respondents put forth any case that the non-seeking of 'prior approval' of the Commissioner was deliberate and absolutely no material has been adduced to arrive at any such inference. The net result is as follows: (i) The petitioners in W.P.(C) Nos. 23870, 28698 and 28699 of 2007 and W.P.(C)No. 6626 of 2008 are held as eligible to be considered for the benefit of the 'sixth proviso' to Rule 13(3) of the FLR and their applications for recognizing the reconstitution of the Firm on the death/retirement of the concerned partners are liable to be reconsidered in tune with the law as it existed prior to the amendment of the Rules brought into effect from 01.04.2007. Ext.P4 in W.P.(C) 6626 of 2008 issued to the contrary is set aside. (ii) Ext.P6 in W.P.(C)Nos. 28457 of 2007, Ext.P4 in 29815 of 2007 and 112 of 2008, Ext.P3 in 1216 of 2008, 4190 of 2008, 12210 of 2008 and 14927 of 2008 and Ext.P10 in W.P.(C) No.4685 of 2008 are hereby set aside and the applications preferred by the petitioners in the said cases for recognizing the reconstitution have to be considered and dealt with in accordance with the relevant rules, as existed prior to 01.04.2007, if the applications submitted by them in this regard have been received prior to the said date. (iii) In W.P(C) No.59 of 2009, the application for reconstitution, admittedly having been made only on 26.06.2008, i.e, after commencement of the amended rule, w.e.f. 01.04.2007, Ext.P2 Sanction, simultaneously imposing the liability to pay the prescribed charges for effecting the reconstitution and change of licence is perfectly in conformity with the statutory prescriptions and not assailable. As such, interference is declined. (iv) The challenge against the amendment tom the Rules 19(ii) and (iv) of the FLR brought into effect from 01.04.2007 fails. Amendment is sustained and the question is answered in favour of the Government/Department. (v) In view of the above, the applications for reconstitution preferred by the petitioners in all the above cases except W.P. (C)No.59 of 2009 shall be re-considered by the Commissioner (Excise), Thiruvananthapuram afresh as stated above and consequential orders shall be passed for granting the benefit of the "sixth proviso" to Rule 13(3) of the FLR, as expeditiously as possible and at any rate within one month from the date of receipt of copy of the judgment. W.P.(C)No.59 of 2009 is dismissed accordingly; whereas the other Writ Petitions are allowed to the above extent. No costs.