H. Asif Venkulam Edava v. Secretary to Government, Taxes (A) Department, Government of Kerala; Excise Commissioner; Assistant Excise Commissioner

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN THE HONOURABLE MR. JUSTICE A.HARIPRASAD & THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR WEDNESDAY, THE 5TH DAY OF NOVEMBER 2014/14TH KARTHIKA, 1936 RP.No. 429 of 2012 (W) IN WP(C).35478/2007 -------------------------------------------(AGAINST THE JUDGMENT IN WP(C) 35478/2007 of HIGH COURT OF KERALA DATED 3.3.2010 ) ## REVIEW PETITIONER/PETITIONER: --------------------------------------------------- H.ASIF VENKULAM EDAVA, CHIRAYINKEEZHU TALUK THIRUVANANTHAPURAM. BY ADV. SRI.M.AJAY ## RESPONDENTS/RESPONDENTS: --------------------------------------------- ## 1. THE SECRETARY TO GOVT. TAXES (A) DEPARTMENT, GOVERNMENT OF KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-1. 2. THE EXCISE COMMISSIONER COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM. 3. THE ASSISTANT EXCISE COMMISSIONER THIRUVANANTHAPURAM. BY SPL.GOVERNMENT PLEADER SRI.TOM K.THOMAS THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 05-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **P.N.RAVINDRAN, A.HARIPRASAD & P.B.SURESH KUMAR, JJ.** ## **--------------------------R.P.No.429 of 2012 IN W.P.(C) No.35478 of 2007 -------------------------Dated this the 5[th] day of November, 2014** ## **O R D E R** ## _**P.N.Ravindran, J.**_ The prayer in this application filed by the petitioner in W.P.(C) No.35478 of 2007 is to review and recall the judgment delivered by the Full Bench of this Court on 3.3.2010 dismissing the writ petition, in the light of the decision of the very same Full Bench in **State of Kerala v. Raveendran Pillai** (2010 (2) KLT 25) (W.A.No.544 of 2008). The brief facts of the case are as follows. 2. The petitioner's mother Smt.Hasheeda Habeeb applied for and obtained an FL3 licence way back on 5.3.1975. The said licence was being periodically renewed and in the year 1986 to be exact on 26.3.1986, the licence was transferred to the name of Sri.Habeeb Mohammed, the petitioner's father. Even thereafter, the said FL3 licence was being periodically renewed till it ceased to be valid on 31.3.1995. It is not in dispute that the licence was not renewed thereafter. Nearly three years after 31.3.1995, the petitioner's father applied for renewal of the defunct FL3 licence by submitting Ext.P1 application dated 26.3.1998. He passed away on 29.8.2001, more R.P.No.429/2012 2 than three years thereafter. Shortly after his death, the petitioner and the other legal heirs of late Habeeb Mohammed submitted Ext.P18 representation dated 30.10.2001 before the Commissioner of Excise, Thiruvananthapuram wherein they objected to the attempt made by their father's tenant to have the licence renewed in his name or to obtain a fresh licence in respect of the hotel which he was running. In paragraph 7 thereof it was stated that they have taken steps to obtain delivery of the hotel building and immediately thereafter, they will bring in an application for renewal of the licence. This was followed by Ext.P19 representation dated nil addressed to the Assistant Excise Commissioner, Thiruvananthapuram wherein they had stated that they have obtained possession of the hotel building through court on 12.3.2003, that they are in joint possession and enjoyment of the property and therefore, they are entitled to get the licence renewed in the name of the first petitioner. 3. When orders were not passed on the said representations, the petitioner and others submitted Ext.P20 representation dated 15.10.2003 before the Honourable Minister for Excise wherein they requested for renewal of the licence, which stood in the name of their father. The application for renewal of the defunct licence was rejected by the Secretary to Government, Taxes Department by order dated R.P.No.429/2012 3 15.12.2004. Though the petitioner filed a representation dated 12.1.2005 and yet another representation dated 25.5.2005 seeking a review of the aforesaid Government order dated 15.12.2004, the applications for review were rejected by order dated 17.6.2005. The petitioner thereupon filed W.P.(C) No.21491 of 2005 in this Court wherein he prayed for the following reliefs: _“(i) To strike down Ext.P19 amendment to the Foreign Liquor Rules as unconstitutional and restrain the respondents from enforcing the same in the case of the petitioner._ _(ii) Issue a writ of certiorari quashing Exts.P30 & P34 orders whereby renewal of license to the petitioner has been turned down by the Government._ _(iii) Grant a declaration that the petitioner is entitled for renewal of Ext.P1 licence without being inhibited by the prohibitions introduced by the amendments to the Foreign Liquor Rules in 2002, 2003, 2004 & 2005._ _(iv) Issue a writ of mandamus directing the 1[st] respondent to reconsider the question of renewal of license to the petitioner in the light of the statutory provisions available on the date of Exts.P11 and P12 applications, or at any rate, Ext.P18 application.”_ 4. W.P.(C) No.21491 of 2005 was admitted and notice ordered to the respondents. It came up for hearing before a Division Bench of this Court on 6.4.2006. On that day, learned counsel appearing for the petitioner sought permission to withdraw the writ petition. The permission sought was granted and W.P.(C) No.21491 of 2005 was dismissed as withdrawn by Ext.P5 judgment herein, without prejudice to the right of the petitioner to approach this Court, if necessary. The petitioner had in the meanwhile submitted a representation dated 10.2.2006 before the Honourable Minister for Excise seeking a R.P.No.429/2012 4 reconsideration of his case relying on the renewal of defunct licences granted to other licensees. That representation which was forwarded by the Honourable Minister, to the Secretary to Government, Taxes Department was rejected by order passed on 3.3.2006. The petitioner thereupon filed W.P.(C) No.11709 of 2006 in this Court wherein he challenged the order dated 3.3.2006 which was produced and marked as Ext.P10 and sought the following reliefs: _“(a) To issue a writ of mandamus or any other appropriate writ order or direction directing the respondents to consider and pass orders on Ext.P2 to P4 applications and also on Ext.P9 applying the law laid down by this Hon'ble Court in B six holiday resorts case as reiterated in Exhibit P11 judgment._ _(b) To call for the records relating to Ext.P6, P7 and P10 and to quash the same.”_ 5. W.P.(C) No.11709 of 2006 was disposed of by a learned single Judge of this Court by judgment delivered on 16.5.2006 with a direction to the competent authority among the respondents to consider and dispose of Exts.P2 to P4 and Ext.P9 representations produced therein, within three weeks. This Court also observed that the relevance of Ext.P11 judgment in W.P.(C) No.1136 of 2006 will also be considered while a final decision is taken on the representations. The competent authority namely, the Secretary to Government, Taxes department once again rejected the petitioner's representation by Ext.P8 order passed on 18.8.2006. 6. The petitioner thereupon filed W.P.(C) No.23791 of 2006 in R.P.No.429/2012 5 this Court. When the said writ petition came up for hearing before a learned single Judge of this Court on 15.6.2007, the learned Government Pleader submitted that being a defunct licence, renewal cannot be granted. The learned counsel appearing for the petitioner then submitted that the policy has undergone a change in January, 2007 and that other defunct licences have been renewed. Taking note of the aforesaid submission, the learned single Judge disposed of W.P. (C) No.23791 of 2006 by Ext.P9 judgment delivered on 15.6.2007 with a direction to the petitioner to file an appropriate representation before the Government and with a direction to the Government to consider the matter afresh in accordance with law after adverting to the contentions taken by the petitioner, within another two months. The petitioner thereupon moved the Government by filing Ext.P10 representation dated 25.6.2007. The Secretary to Government, Taxes Department rejected it by Ext.P16 order dated 25.8.2007 inter alia on the ground that the request was considered and rejected on more than one occasion and as per the proviso to rule 13(3) of the Foreign Liquor Rules, with effect from 8.7.2003, the licence of any bar hotel that remains defunct for more than six months either during the period of validity of the licence or after its expiry, shall not be renewed. The instant writ petition was thereupon filed on 29.11.2007 challenging R.P.No.429/2012 6 ## Ext.P16 order and seeking the following reliefs: _“(i) Issue a writ of certiorari quashing Ext.P16. (ii) Issue a writ of mandamus or such other writ directing the respondents to renew the defunct FL-3 licence No.42/94-95 of the Nandavanam Tourist Home, Thiruvananthapuram in accordance with the Rule prevalent on the date of Ext.P1, within a period to be specified by this Hon'ble Court.”_ 7. The principal contention raised in the writ petition is that Ext.P16 is vitiated by malafides in the sense that the defunct licences have been renewed in respect of other licensees and without applying the same yardstick, the petitioner's application was rejected and he was subjected to hostile discrimination. It is also contended that the various contentions raised by him in his representations have not been taken note of or considered, that the law to be applied is the law prevailing on the date of the application for renewal of the defunct licence and therefore, the rejection of the application for renewal of the defunct licence on the ground that the law to be applied is the law prevailing on the date of consideration, is untenable. The very same contention that the law to be applied is the law prevailing on the date of the application for renewal of a defunct licence was raised in W.A.No.544 of 2008. After considering the decisions of this Court and the Apex Court on the point, more particularly the decision of the Apex Court in **Kuldeep Singh v. Govt. of NCT of Delhi** (AIR 2006 SC 2652) and the decision of the Apex Court in Civil Appeal Nos.983 to R.P.No.429/2012 7 990 of 2003, which arose from the decision of a Division Bench of this Court in **B.6 Holiday Resorts Pvt. Ltd. v. State of Kerala** (2003 (1) KLT 984), the Full Bench of this Court held that in the light of the law laid down by the Apex Court, the relief prayed for by the appellants cannot be granted. W.A.No.544 of 2008 was accordingly dismissed. W.P.(C) No.35478 of 2007 was dismissed by judgment delivered on 3.3.2010 in the light of the decision of the Full Bench of this Court in W.A.No.544 of 2008. In this review petition, the petitioner seeks a review of the aforesaid judgment mainly on the ground that the Apex Court did not in **Kuldeep Singh v. Govt. of NCT of Delhi** (AIR 2006 SC 2652) consider the decision of the Constitution Bench in **Messrs.Ghaio Mal and Sons v. State of Delhi and Others** (AIR 1959 SC 65). The petitioner has also reiterated the contentions which were raised in the writ petition. 8. We heard Sri.M.Ajay, learned counsel appearing for the petitioner and Sri.Tom K. Thomas, learned Special Government Pleader appearing for the State of Kerala. We have also gone through the pleadings and the materials on record. Shorn of details, the main ground raised by the learned counsel appearing for the petitioner, relying on the decision of the Apex Court in **Messrs.Ghaio Mal and Sons v. State of Delhi and Others** (Supra) is that the Apex Court R.P.No.429/2012 8 has in paragraph 5 of the said decision held that once a licence is granted by the Chief Commissioner, it is almost automatically renewed by the Collector from year to year, that in such cases of renewal there arises no vacancy entitling any outside competitor to apply for a licence, that if the licence already issued to another person is found to be not in order for the reason that it was not made by the competent authority, the vacancy will remain to be filled up and the appellants will have a chance of having their application considered by the competent authority and therefore it has to be inferred that the law to be applied is the law prevailing on the date of the application for renewal of the licence. The question whether the law that has to be applied for the renewal of a bar licence is the law as on the date of the application or on the date of its consideration, did not arise for consideration before the Apex Court in that case. All that the Apex Court held in paragraph 5 of the judgment in **Messrs.Ghaio Mal and Sons v. State of Delhi and Others** (Supra) was that when the grant was found to be not in order for the reason that it was not made by the competent authority, the vacancy will remain to be filled up and consequently, the appellants will have a chance of having their application considered by the competent authority. The aforesaid finding was arrived at after overruling the contention raised by the Assistant Solicitor General that R.P.No.429/2012 9 by efflux of time, the appeal before the Apex Court has become infructuous. We therefore find no merit in the contention raised by the review petitioner that if the decision of the Apex Court in **Messrs.Ghaio Mal and Sons v. State of Delhi and Others** (Supra) had been brought to the notice of the Full Bench which decided W.A.No.544 of 2008, the consequences would have been different. We accordingly hold that there is no merit in the instant review petition. It fails and is dismissed. **P.N.RAVINDRAN, (JUDGE)** **A.HARIPRASAD, (JUDGE)** **P.B.SURESH KUMAR, (JUDGE)** vps