A.K. Santosh v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN FRIDAY, THE 19TH DAY OF DECEMBER 2014/28TH AGRAHAYANA, 1936 WP(C).No. 34610 of 2014 (A) ---------------------------- PETITIONER: -------------- A.K.SANTHOSH PROPRIETOR, A T S RESIDENCY, YAKKARA BRANCH ROAD NEAR D.P OFFICE, PALAKKAD - 678 014. BY ADVS.DR.K.P.SATHEESAN (SR.) SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.ANOOP.V.NAIR SRI.S.VIBHEESHANAN SRI.N.MANU THAMPI RESPONDENTS: --------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY, TAXES (A) DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANATHAPURAM -695 001. 2. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, EXCISE HEADQUARTERS NANDAVANAM, THIRUVANANTHAPURAM - 695 033. 3. THE JOINT EXCISE COMMISSIONER, OFFICE OF THE CENTRAL JOINT EXCISE COMMISSIONER KOCHI- 682 025. 4. THE CIRCLE INSPECTOR OF EXCISE, EXCISE RANGE OFFICE, PALAKKAD - 678 001. R BY SPL. GOVERNMENT PLEADER SHRI.TOM K.THOMAS THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 34610 of 2014 (A) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------ EXHIBIT-P1-TRUE COPY OF THE CERTIFICATE ISSUED BY THE MINISTRYOF TOURISM GOVERNMENT OF INDIA DATED 16/01/2013. EXHIBIT-P2-TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE 4TH RESPONDENT DATED 13/05/2012. EXHIBIT-P3-TRUE COPY OF THE COVERING LETTER ALONG WITH COPY OF THE ORIGINAL APPLICATION SUBMITTED BY THE C.I OF EXCISE, PALAKKAD DATED 19/01/2013. EXHIBIT-P4-TRUE COPY OF THE ORDER NO. XC6-21575/13/D.DIS DATED 27/08/2013 ISSUED BY THE 2ND RESPONDENT. RESPONDENT(S)' EXHIBITS NIL ------------------------ JJ /TRUE COPY/ P.S.TO JUDGE ## K. SURENDRA MOHAN,J. ------------------------------W.P(C) NO. 34610 OF 2014 ---------------------------------Dated this the 19[th] December, 2014. ## JUDGMENT The petitioner is conducting a hotel with Four Star classification issued by the Ministry of Tourism, Government of India. He has not been granted licence to conduct a Bar for the reason that, Four Star hotels are not eligible to apply for the grant of Bar licences as per the Abkari Policy, 2014-2015 of the State. Though the petitioner submitted an application for the grant of a Bar licence (FL-3 licence), his application was rejected by Ext.P4 in view of the Abkari Policy 2014-15. 2. As already noticed above, the petitioner has a hotel classified as four star by the Ministry of Tourism, Government of India. He has obtained all the other necessary certificates from the concerned authorities and has acquired eligibility for WPC 34610/2014 2 the grant of an FL-3 licence. It is the contention that, he satisfies all the necessary conditions and parameters stipulated by the Abkari Act,1077 as well as the Foreign Liquor Rules, for the purpose of being granted the privilege of conducting a Bar in her hotel. His application has not been considered for the sole reason that, he is ineligible to apply for such licence by the Abkari Policy, 2014-2015. The counsel places reliance on the decision in Xaviers Residency v. State of Kerala [2014(4) KLT 419] where a batch of writ petitions challenging the Abkari Policy 2014-2015 were disposed of with the following directions:- “In the result, it is ordered as follows:- 1. The challenge against the Abkari Policy 2014-2015, by the hotels classified as two star, three star and by hotels having no classification fails. The writ petitions filed by them are therefore dismissed. 2) The Abkari Policy 2014-2015, to the extent, it excludes hotels having Four Star and Heritage category hotels from the eligibility to be WPC 34610/2014 3 granted FL-3 licences under the Foreign Liquor Rules is set aside, being arbitrary and violative of Art.14 of the Constitution. The consequential amendments to the Foreign Liquor Rules as well as the proceedings of the Excise Commissioner cancelling the licences of such hotels are also set aside. The writ petitions filed by them are allowed as above. 3) The Abkari Policy 2014-2015 is sustained in all other respects, except to the extent indicated above.” Appeals have been filed against the said judgment by the State as well as petitioners in the said writ petitions. All the appeals are pending consideration of the Division Bench. It is submitted by the learned Senior Counsel Dr.K.P.Satheesan, who appears for the petitioner that though the appeal of the State has been admitted, the prayer for stay of operation of the judgment has been declined by the Division Bench, after hearing. Therefore, according to the counsel appearing for the petitioner in this case, the petitioner is entitled to the benefit of the dictum in the judgment referred to above. In WPC 34610/2014 4 view of the above, he seeks the issue of a direction to the State as well as the Excise Commissioner to accept his application and to consider it in accordance with law, within a stipulated time. 3. I have heard the counsel appearing for the petitioner as well as the learned Govt. Pleader who represents the State. 4. In view of the dictum laid down by the judgment in Xaviers Residency v. State of Kerala (supra) that exclusion of Four Star hotels from the category of hotels eligible to seek the issue of FL-3 licences by the Abkari Policy 2014-2015 is bad, the petitioner is justified in his contentions. The petitioner is certainly entitled to seek the benefit of the dictum laid down by this Court, the operative portion of which I have already extracted above. In the light of the finding that hotels with Four Star classification are also eligible to be granted FL3 licences, it is only appropriate that the application submitted by the petitioner herein is accepted by the Excise Authorities and considered in accordance with law. WPC 34610/2014 5 In view of the above, this writ petition is allowed. The Excise Commissioner as well as the State of Kerala are directed to accept the application for FL-3 licence submitted by the petitioner provided, he has a subsisting four star classification, subject to his satisfying all other prescribed conditions of eligibility. The application shall be considered and appropriate orders shall be passed thereon in accordance with law, as expeditiously as possible and at any rate, within a period of two months from today. Sd/K. SURENDRA MOHAN Judge jj /True copy/ WPC 34610/2014 6 WPC 34610/2014 7