Hotel New Indraprastha, Adoor v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE ASHOK MENON** **THURSDAY, THE 31ST DAY OF MAY 2018 / 10TH JYAISHTA, 1940** **WA.No. 2401 of 2016** **AGAINST THE JUDGMENT IN W.P.(C)NO. 23358/2016-T, DATED 17.11.2016 -----------** ## **APPELLANT(S)/PETITIONER :** **M/S.HOTEL NEW INDRAPRASTHA, ADOOR, PATHANAMTHITTA DISTRICT, REP. BY ITS MANAGING PARTNER, K.P. KARTHIKEYAN, AGED 59 YEARS, S/O.K.G. PURUSHOTHAMAN.** **BY SRI.C.C.THOMAS, SENIOR ADVOCATE ADVS. SRI.M.G.KARTHIKEYAN** **SRI.NIREESH MATHEW** ## **RESPONDENT(S)/RESPONDENTS:** **1. STATE OF KERALA, REPRESENTED BY SECRETARY, TAXES(A) DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM - 695 033.** **3. THE DEPUTY COMMISSIONER OF EXCISE,** - **PATHANAMTHITTA 689 645.** **4. THE CIRCLE INSPECTOR OF EXCISE,** - **ADOOR, PATHANAMTHITTA DISTRICT 689 645.** **5. THE EXCISE INSPECTOR,** - **EXCISE RANGE OFFICE, ADOOR,** - **PATHANAMTHITTA DISTRICT 689 645.** ## **BY SR.GOVERNMENT PLEADER SRI.RENIL ANTO** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 31-05-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Msd.** ## **11.06.2018** **WA.No. 2401 of 2016** ## **APPENDIX** **PETITIONER(S)' ANNEXURES :** **ANNEXURE A: PHOTOCOPY OF THE STATEMENT FILED BY THE 4TH RESPONDENT IN W.P.(C)NO. 23625/2016.** **RESPONDENT(S)' ANNEXURES :** ## **NIL** **//TRUE COPY//** **P.S.TO JUDGE** **Msd. 11.06.2018** **C.R.** ## **K. VINOD CHANDRAN & ASHOK MENON, JJ.** **----------------------------** ## **W.A. No.2401 of 2016** **---------------------------Dated this the 31[st] day of May, 2018** ## **JUDGMENT** ## K. Vinod Chandran, J. A hotel having a beer parlour by virtue of a licence issued in Form FL-11 of the Foreign Liquor Rules, 1953 [for brevity, the Rules] is the appellant before this Court. The impugned judgment sustained a finding of violation of Rule 16(1) of the Rules for storage of beer & wine outside the licensed premises. The beer and wine were seen stored in a room alleged to be outside the licensed premises as is evidenced from Ext.P3 Mahazar. 2. The learned Single Judge found that the **W.A. No.2401 of 2016** **2** beverages were kept in premises, for which the licensee had not obtained prior permission. The room was not one specified in the approved plan for keeping liquor. The learned Single Judge also noticed that when a plan of the layout of the rooms in the buildings of the licensee is specifically insisted, along with the application for grant of license and when the plan is approved specifying the room/rooms where the licensee is authorized to keep liquor, any liquor kept outside such room/rooms would result in violation of Rule 16 of the Rules. 3. Against the dismissal of the writ petition, the appellant is before us contending that the licenced premises includes the entire building, in which the Beer Parlour is housed. Ext.P1 licence issued in Form FL-11 under the Rules is referred, **W.A. No.2401 of 2016** **3** to contend that the boundary shown are of the building and liquor or beverage can be stored anywhere within the premises so licensed. The learned Counsel would also rely on **Shafeekka v. State of Kerala [2010 (4) KHC 513]** to advance the aforesaid contention. Specifically sub-rule 3D was introduced in Rule 13 after the said decision; to bring within the ambit of violation, a contingency, which was held to be not amounting to an infringement in **Shafeekka.** The introduction of Rule 3D, applies only to FL-3 licenses and there is no such prohibition in so far as a FL-11 licensee. 4. The learned Government Pleader would argue that licensed premises includes only the Parlour room, which alone is licensed. It is pointed out that the license at Ext.P1 has shown a boundary, quite different from that prescribed in the Form **W.A. No.2401 of 2016** **4** itself. The Parlour is to be scheduled and not the entire building as seen from the Rules, is the contention. 5. FL-11 license as seen from the Rules speaks of “Schedule showing boundaries of the Beer/Wine Parlour”. The license produced as Ext.P1 showing boundaries of the hotel, is contrary to the boundaries required as seen from the Rules. While the Taluk, Village, Muri and Door Number would have to be specified in the description, the boundaries have to be of the specific room in which the Parlour is run. We agree with the learned Government Pleader that the boundaries of the Beer/Wine Parlour separately shown, in Ext.P1, is not as contemplated under the Rules. 6. The learned Counsel for the petitioner submits that the Assistant Commissioner has **W.A. No.2401 of 2016** **5** prepared the schedule and approved it. The learned Government Pleader points out that the schedule is one prepared by the licensee and produced before the Assistant Commissioner, which is approved and appended to the license. Either way, we find that the Schedule shown in the license is contrary to that in the Rules and that being so merely because a mistake was committed by the licensing authority; that cannot be a reason for the licensee to violate the conditions of license. In any event the boundaries of the Beer/Wine parlour is separately shown in Ext.P1 and that is the licensed premises. 7. The petitioner further anchors on the decision in **Shafeekka** . Therein the licensee had a licensed Bar and had obtained additional permission to sell liquor within the restaurant as also serve liquor by the side of the swimming pool, lawn and **W.A. No.2401 of 2016** **6** roof garden of the hotel. Rule violation was alleged since an additional counter was provided. The learned Single Judge considering the provisions as contained in the license; found that there is a distinction between service and sale. The licensee, therein, was permitted to serve liquor at the roof garden, lawn and besides the swimming pool,exclusively to guests residing in the hotel. Sale was permitted both in the bar room as also in the restaurant, the latter restricted to resident guests. Finding that the license itself permitted sale inside the restaurant; it was held, setting up of an additional counter, for sale of liquor, does not run contrary to the terms of the license. Rule 16 though specifically dealt with; there was no interpretation made, of that rule. On facts, it was found that _“when condition No.2 of the license_ **W.A. No.2401 of 2016** **7** _enable the licensee to sell liquor, not only within the bar room but to the restaurant also, it cannot be said that Rule 16 is a bar to put up additional counter outside the bar room, but within the premises of the hotel” (sic-para6)._ Rule 16 was found to have no application on facts. We do not think that the judgment of the learned Single Judge has any application in the aforesaid case. 8. Further contention of the learned Counsel for the petitioner is based on the statement filed by an officer, which is produced as Annexure A, wherein the schedule attached to the license is said to the licensed premises of the entire hotel. The statement is filed by the Circle Inspector of Police, Excise Circle Office, Thrissur. It is also contended that any alteration or modification made at any part of the hotel building is immediately **W.A. No.2401 of 2016** **8** penalised by the Department making it further evident that the licensed premises is the entire hotel. We are not convinced that any such assumption can be made from the understanding of the officers, either by way of a statement or by way of the penal action threatened against the licensees. 9. We cannot but notice Rule 28A of the Rules, which reads as under: _“_ **28A.** _The licenced premises for sale of liquor in respect of all the Licences issued under these rules shall remain closed on the following days-_ _(i) Birth day of Mahatma Gandhi._ _(ii) Birthday of Sree Narayana Guru._ _(iii) Commemoration day of Mahatma Gandhi._ _(iv) Samadhi day of Sree Narayana Guru._ _(v) During the period of forty-eight hours ending with the hour fixed for the conclusion of the poll in connection with general or bye election within the polling area and on the whole day of counting of votes within the polling_ **W.A. No.2401 of 2016** **9** _area._ _(vi) During the period of fortyeight hours ending with the hour fixed for the conclusion of the poll in connection with the election or bye election to the Corporation, Municipal Divisions, Wards or Panchayat constituencies within the polling area and on the whole day of counting of votes within the polling area._ _(vii) The first day of all English calendar months._ _(viii) Good Friday._ _(ix) International Day against Drug Abuse and Illicit Trafficking.”_ 10. The specific prohibition as found in Rule 28A is also incorporated in FL-11 licence as condition No.9. If the entire hotel is the licenced premises, then necessarily on the days specified, the hotel itself will have to be closed down and nether could there be service of food or residence of guests. What is intended is that the licensed premises alone shall remain closed on the specified days; which has to be taken as the premises where **W.A. No.2401 of 2016** **10** the sale and service of alcoholic beverages are permitted. We also have to notice that Rule 28A; would stand against the contention of the petitioner. Storage of alcoholic beverage outside the licensed premises would result in sale of such beverage on the days specified, wherein there is a prohibition. 11. As to the modification of building and premises, we notice sub-section (2) of Section 16, which speaks of violation or alteration or modification of the building or premises, to which the license is granted. The rule making authority specifically required that the building, in which the licensed premises is housed, cannot be altered or modified unless under fear of imposition of penalty. If the entire building is to be taken as the licensed premises there was no requirement to **W.A. No.2401 of 2016** **11** prohibit alteration or modification of a building in which the licensed premises is housed. We cannot but observe that the rule making authority considered the licensed premises and the building in which it was housed as distinct and different. We do not find any reason to interfere with the judgment of the learned Single Judge. We dismiss the above writ appeal without any order as to costs. Sd/- ## **K. VINOD CHANDRAN,** **JUDGE.** Sd/- **ASHOK MENON, JUDGE.** //True Copy// P.A. to Judge. sp/01/06/18