Banerji Memorial Club v. Deputy Commissioner of Excise, Thrissur; Commissioner of Excise, Kerala; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **FRIDAY, THE 2ND DAY OF DECEMBER 2016/11TH AGRAHAYANA, 1938** ## **WP(C).No. 10746 of 2010 (P)** **----------------------------** **PETITIONER :** **---------------------** **BANERJI MEMORIAL CLUB, ROUND NORTH, THRISSUR-680 001, REPRESENTED BY ITS EXECUTIVE MEMBER AND LICENSEE, B.A.JAYARAM.** **BY SRI.K.P.DANDAPANI,SENIOR ADVOCATE ADV. SRI.MILLU DANDAPANI** **RESPONDENT(S): ---------------------------** **1. THE DEPUTY COMMISSIONER OF EXCISE, THRISSUR.** **2. THE COMMISSIONER OF EXCISE, KERALA, THIRUVANANTHAPURAM.** **3. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF EXCISE, THIRUVANANTHAPURAM.** **BY GOVERNMENT PLEADER SMT. POOJA SURENDRAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).NO.10746/2010** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE JUDGMENT DATED 4/6/2007 OF THIS HONOURABLE COURT IN WP(C).NO.16942 OF 2007 P.** - **P2 COPY OF THE INTERIM ORDER DATED 17/12/2008 OF THIS HONOURABLE COURT IN W.A.NO.2423/2008.** - **P3 COPY OF THE INTERIM ORDER DATED 24/6/2009 OF THIS HONOURABLE COURT IN W.A.NO.2423/2008** - **P4 COPY OF THE INTERIM ORDER DATED 4/4/2008 OF THIS HONOURABLE COURT IN WP(C).NO.11578/2008 C** - **P5 COPY OF THE PROCEEDINGS NO.XC7-14696/2008 DATED 15/7/2009 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT** - **P6 COPY OF THE JUDGMENT OF THIS HONOURABLE COURT, DATED 23/7/2009 IN WP(C).NO.20362/2009 M.** - **P7 COPY OF THE PROCEEDINGS NO.XC7-14696/2008 DATED 5/9/2009 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT** - **P8 COPY OF THE APPLICATION FOR RENEWAL OF FL-4A CLUB LICENCE SUBMITTED BY THE PETITIONER ALONG WITH REQUIRED DOCUMENTS BY THE PETITIONER BEFORE THE 1ST RESPONDENT ON 24/3/2010** - **P9 COPY OF THE ORDER NO.R2-5436/06 DATED 26/3/2010 OF THE 1ST RESPONDENT ISSUED TO THE PETITIONER.** - **P10 COPY OF THE APPLICATION FOR RENEWAL OF CLUB LICENCE, DATED 22/3/2011, SUBMITTED BY THE PETITIONER BEFORE 1ST RESPONDENT** **RESPONDENT'S EXHIBITS: NIL** ## **/TRUE COPY/** **sts** **P.S.TO JUDGE** ## **A.MUHAMED MUSTAQUE, J.** ========================= ## **W.P.(C).No.10746/2010** ~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 2[nd] day of December, 2016 ## **J U D G M E N T** The petitioner is a club. The controversy in this writ petition falls in a narrow compass on account of rejection of FL-4A licence for want of ownership interest in which the club functions. The licence is being renewed from time to time based on the interim orders passed in this writ petition. This writ petition is pending since 2010. It appears that Land Conservancy Proceedings were initiated against the petitioner alleging that the land where the club is situated is a government land and that the petitioner is in illegal occupation of the same. Ultimately, the Division Bench of this court in **Banerjee Memorial Club v. Taluk Tahsildar [2016** **(1) KLT 241]** interfered with a proceedings initiated under the Land Conservancy Act. Therefore, the petitioner still continue to be in occupation or possession of the immovable property in which the building ## **`W.P.(C).No.10746/2010`** ## **-:2:-** owned by the club is functioning. I am not entering into the controversy related to the land in which the club functions since that has been concluded by the Division Bench of this court as per **Banerjee's** case (supra). Rule 13(4A) of the Foreign Liquor Rules stipulate about the licence being given to the club. A club in occupation or in possession of a building is also entitled for licence. There is no bar under the Foreign Liquor Rules in granting licence to a person or entity, who is in possession or occupation of the immovable property. In view of the fact that the land conservancy proceedings initiated against the petitioner have been snapped due to the intervention of this court, this court is of the view that there is no difficulty in renewing the club licence. In fact, this court passed a detailed order on 4.4.2016 as follows: “The petitioner Club in this writ petition has assailed Exhibit P9 order dated 26.03.2010, through which the Government insisted that the petitioner should comply with condition No.(iv) of Rule 13(4A) of the Foreign Liquor Rules ('the Rules'). To put it differently, the property on which the ## **`W.P.(C).No.10746/2010`** ## **-:3:-** Club stands is mired in title controversy: the Society running the Club claims the property, it seems, as a grant from the erstwhile Maharaja; the Government, on the other hand, claims it to be its property. 2. As can be seen from the record, earlier the Government initiated eviction proceedings under the Land Conservancy Act, 1957. Aggrieved, the petitioner challenged those proceedings, which eventually culminated in a judgment rendered by a learned division Bench of this Court in **Banerjee Memorial Club v. Taluk Tahsildar** (2016 (1) KLT 241). 3. The learned Division Bench, having framed a specific issue whether the Society's possession has legal origin, on the basis of the doctrine of lost grant and also the legal presumption occasioned by efflux of time, has held that the petitioner Society's possession has a legal origin. The learned Division Bench has held that the summary proceedings in these circumstances for eviction are impermissible. 4. Be that as it may, this Court does acknowledge that the learned Division Bench in the judgment referred to above has not declared the title of the petitioner. It has only held that the petitioner's possession shall be presumed to be lawful until the contrary is proved. True, the Government may take recourse to appropriate civil proceedings for declaration of title and recovery of possession. Until that stage arises, for all practical purposes, the petitioner Society is deemed to be a lawful possessor of the property. 5. Ever since the filing of the writ petition in 2010, this Court has, on an annual basis, issued interim orders directing the respondent ``` W.P.(C).No.10746/2010 ``` ## **-:4:-** authorities to renew the petitioner's FL-4A licence subject to further orders. 6. Sri.Millu Dandapani, the learned counsel for the petitioner has strenuously contended that this time too the respondent authorities would have entertained the petitioner's application for renewal, but for the fact that at an earlier stage this Court had closed the writ petition as having become infructuous. 7. In elaboration of his submissions, the learned counsel has submitted that on 13.07.2015, a counsel unconnected with the case seemed to have represented before this Court that the writ petition had become infructuous. Acting on the said representation, this Court dismissed the writ petition. Nevertheless, having come to know of the dismissal of the writ petition, the petitioner filed R.P.No.809/2015 explaining the circumstances why the writ petition should be restored to file. 8. As is evident from the record, on 25.09.2015 this Court, having been satisfied with the version of the learned counsel for the petitioner, restored not only the writ petition to file but also the interim direction issued earlier. 9. According to the learned counsel, the authorities received only the order copy of dismissal of the writ petition but not that of the restoration. Under those circumstances, they have, perhaps, contends the learned counsel, refused to renew the licence. 10. The learned Government Pleader, on his part, with equal vehemence, has submitted that the authorities have returned the petitioner's application for renewal insisting that ## **`W.P.(C).No.10746/2010`** ## **-:5:-** it should produce the ownership certificate in compliance with Rule 13(4A) of the Rules. 11. In reply, the learned counsel for the petitioner has submitted that as is well settled, from the judicial dictum of **Mohinder Singh Gill v. The Chief Election Commission, New Delhi** (AIR 1978 SC 851), the reasons have to be gathered from the order of refusal, if any. In the present instance, the authorities have never passed any order of refusal. He has also submitted that when the office bearers of the petitioner enquired with the authorities, they had only told the office bearers that since the writ petition had been dismissed, they would not entertain the request for renewal. 12. Be that as it may, prima facie, the petitioner's possession stands declared to be legal by a learned Division Bench of this Court in Banerjee Memorial Club (Supra). Further this Court has continuously, four about five years, issued interim directions permitting the petitioner to have the licence renewed. Now, given the fact that the writ petition stands restored to file along with the interim direction, before deciding the matter on merits, it is inappropriate for me to take a different stand at this stage. Accordingly, in tune with the previous practice, this Court directs the respondent authorities to consider the petitioner's application for renewal of licence without insisting on its compliance with Rule 13(4A) (iv) of the Rules. It is left open for the petitioner to re-submit the application, subsequent to which the authorities shall consider the same in the manner indicated above. Needless to observe ## **`W.P.(C).No.10746/2010`** ## **-:6:-** that the authorities shall complete the exercise of reconsideration as expeditiously as possible, at any rate, within one week from the date of re-submission of the application by the petitioner.” The above interim order dated 4.4.2016 is made absolute. But, it is made clear that the petitioner will be entitled for renewal of FL-4A licence in accordance with law so long as they are in possession or occupation of immovable property. The writ petition is disposed of as above. No costs. **Sd/A.MUHAMED MUSTAQUE, JUDGE** ms