K. Somasekharan Nair v. Excise Commissioner, Commissionerate of Excise, Thiruvananthapuram; Abdul Rasheed; Dr. Biju Ramesh; Arun Dhinakar

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **WEDNESDAY, THE 09TH DAY OF DECEMBER 2020 / 18TH AGRAHAYANA, 1942** **WA.No.1658 OF 2020** **AGAINST THE JUDGMENT DATED 25.11.2020 IN W.P.(C.)NO. 21310/2020(K) OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **K.SOMASEKHARAN NAIR, AGED 78 YEARS S/O. KUNJAN PILLAI, RESIDING AT BHANNI, CHERUPPORAKKONAM, MELAMCODE, PAZHAKUTTY P.O., NEDUMANGAD, THIRUVANANTHAPURAM-695 563.** **BY ADVS. DR.S.GOPAKUMARAN NAIR (SR.) SRI.SOORAJ T.ELENJICKAL SRI.K.ARJUN VENUGOPAL SHRI.ASWIN KUMAR M J SMT.HELEN P.A. SHRI.ARUN ROY SRI.SHAHIR SHOWKATH ALI SHRI.MUHAMMED SUHAIR C.A** ## **RESPONDENTS/RESPONDENTS:** - **1 EXCISE COMMISSIONER, COMMISIONERATE OF EXCISE, THIRUVANANTHAPURAM-695 023.** **2 ABDUL RASHEED S/O. ALIYAR ALIAS HEERA BABU, CITADEL, GOLF LINKS, KAWDIAR, THIRUVANANTHAPURAM-695 003.** - **3 DR.BIJU RAMESH S/O. RAMESH, PARTNER, HOTEL MYTHRI, RAJADHANI BUILDING, EAST FORT, TRIVANDRUM-695 023.** WA.No.1658 OF 2020 2 **4 ARUN DHINAKAR S/O. DHINAKARAN, PARTNER, HOTEL MYTHRI, INDRAPRASTHA BUILDING, NEAR KSRTC BUS STAND, NEDUMANGADU, TRIVANDRUM-695 541.** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.1658 OF 2020 3 ## **JUDGMENT** ## Ravikumar, J. This writ appeal is directed against the judgment dated 25.11.2020 in W.P.(C.) No. 21310/2020. The unsuccessful petitioner is the appellant. He filed the writ petition seeking the following relief:- “i) Issue a writ of mandamus or any other writ, direction or order directing the 1[st] respondent to consider petitioner's Ext.P3 application dated 28.09.2020 and also direct him to afford sufficient opportunity of being heard to the petitioner before taking a decision on Respondents application for issuance of FL-3 license;” 2. Succinct narration of the facts is inevitable to dispose of the writ appeal. The respondents 2 to 4 are businessmen. They are running a hotel by name M/s. Hotel Mythri in 'Indraprastha Building' at Nedumangadu. They obtained four Star Classification for their hotel and thereupon, approached the first respondent for getting FL-3 license under the Foreign Liquor Rules (for short 'the F.L. Rules', only). The appellant, who is a social worker submitted Ext.P3 requesting for an opportunity of being heard before a decision is taken on the said application for FL3 license submitted WA.No.1658 OF 2020 4 by the respondents 2 to 4. It is also to be noted that against regularisation of the construction of the building in question, where the respondents 2 to 4 propose to conduct the foreign liquor shop, W.P.(C.) No. 10818/2007 is filed and the same is pending consideration. According to the appellant, in the aforesaid circumstances, it cannot be said that he is not having any right at all to be heard, at the time of consideration of the application for FL-3 license submitted by respondents 2 to 4. It is the dismissal of W.P. (C.) No. 21310/2020 carrying such claims and the aforementioned prayer that led to the filing of this writ appeal. 3. Heard the learned Senior counsel for the appellant and the learned counsel for respondents 2 to 4 as also the learned Government Pleader. 4. The pleadings in the appeal would reveal that the appellant is mainly aggrieved by the following finding in the impugned judgment:- “As submitted by the learned Government Pleader, the 1[st] respondent is duty-bound to consider that the application for issuance of license is in order and that they are in fact entitled to a license.” 5. It is submitted by the learned Senior counsel appearing for the appellant that the said finding, in fact, amounts to a positive WA.No.1658 OF 2020 5 direction to the first respondent. On going through the aforesaid finding, we are at a loss to understand as to how the said sentence can be construed as a positive direction to the first respondent. True that it would reveal that the submission made by the learned Government Pleader was taken note of by the learned Single Judge and the same was endorsed by holding that the first respondent is duty bound to consider that the application for issuance of the license is in order and that they are in fact entitled to a license. Thus, it is evident that it did not contain any positive direction as contended by the appellant. Virtually, the learned Single Judge only found that it is the duty cast upon the first respondent as the licensing authority to consider whether the application for issuance of license is in order and then to consider whether respondents 2 to 4 are entitled to a license. This is evident from the sentence that followed the afore extracted sentence viz., “There is no reason to conclude that the first respondent shall not discharge the duty cast upon him.” In this context, it is also relevant to refer to paragraph 2 of the judgment:- “2. The learned Government Pleader on instructions submitted that the application filed by the 3rd respondent for issuance of FL3 license under Rule 13B of the Foreign Liquor Rules has been submitted before the Deputy Commissioner WA.No.1658 OF 2020 6 and the same has been forwarded to the 1st respondent. The Rules contemplate that as authorised by the Commissioner, an Assistant Excise Commissioner or such other officer shall enquire whether the provisions of the Rules are complied with and a report shall be submitted thereon. He is also bound to state whether there is need for a licence with particular reference to the probable demand for liquor and the number of wholesale, restaurant, club or tavern licences already existing and their location. It is after considering all the aspects that the Commissioner can accord sanction for a licence. It is further stated that the provisions of the Rules do not contemplate hearing any objector. He would further state that the allegations made in the petition that the party respondents would be able to force the 1st respondent to grant them a license in violation of the Rules has no basis. It is further submitted that in Writ Petition No. 23546/2020 filed by the 3rd respondent, this Court has directed the concerned respondents to consider the application for license and take appropriate decision. All relevant aspects would be considered at the time of consideration of the application and it will be on the basis of the report of the officer authorised by the Excise Commissioner is the submission.” In such circumstances, we do not find any merit in the contention raised relying on the afore extracted sentence, to the effect that it contain a positive direction. 6. The next contention of the appellant is that there is absolutely no justification in rejecting the innocuous prayer to afford WA.No.1658 OF 2020 7 an opportunity of being heard, at the time of consideration of the application for license, as has been sought for under Ext.P3. True that it appears to be an innocuous prayer. Even if it is such a prayer, that by itself is no reason for this Court to pass a direction to grant an opportunity of being heard to the appellant. As can be seen from prayer No. 1 in the writ petition extracted above, what the appellant seeks for is issuance of a writ of mandamus against the first respondent. As can be seen from the facts narrated above, here in this case it was respondents 2 to 4 who have applied for grant of license under the F.L. Rules. Going by the case of the appellant he approached this Court by filing W.P.(C.) No. 10818/2017 for the regularisation of the construction of Indraprastha Building alleging that it is an unauthorised construction and admittedly, it is pending consideration before this Court. How can that be a reason capable of creating a legal right on the appellant to be heard in a matter where the question is whether respondents 2 to 4 are entitled to FL-3 license under the F.L.Rules ? Ext.P3 would reveal that even according to the petitioner, the building, the regularisation of construction of which is regularised, is owned by Messrs. Biju Ramesh and Arun Dhinakar and obviously, raising grievance against the regularisation of the construction of the said building by name WA.No.1658 OF 2020 8 Indraprastha Building, he has already approached this Court by filing W.P.(C.) No. 10818/2017 and the same is now pending. To our pointed question, the learned Senior Counsel would submit that there is no interim order against its regularisation. Therefore, the question is when an application for FL-3 license is applied by respondents 2 to 4 under the provisions of F.L. Rules, the appellant is having any right to be heard on the issue of its grant ? In the absence of any specific provision under the relevant statute viz., in Rule 13B or in any other Rule of the F.L. Rules to provide such an opportunity, the appellant would not be justified in applying for issuance of a writ of mandamus. In the said circumstances, the learned Single Judge was right in relying on the decision of the Hon'ble Apex Court in **State of U.P. v. Harish Chandra** reported in **[(1996) 9 SCC 309]** . The settled position is that the prerogative remedy of mandamus can be granted only when a legal duty is imposed on the authority in question and the person who seeks for its issuance has a right to compel the performance of that duty. In other words, the existence of a legal right in the petitioner and a corresponding legal duty on the respondents are conditions precedent for issuing a writ of mandamus. The petitioner could not establish his legal right as also WA.No.1658 OF 2020 9 corresponding legal duty on the first respondent. In the said circumstances, when it is evident that the petitioner is not having any legal right in respect of the matter in issue, we do not find any reason whatsoever to hold that the learned Single Judge was not right in declining to issue a writ of mandamus. In short, we do not find any merit in the appeal. Consequently, this appeal is dismissed. **Sd/-** **C.T.RAVIKUMAR JUDGE Sd/K.HARIPAL JUDGE** **DCS/11.12.2020** WA.No.1658 OF 2020 10 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1** **A TRUE COPY OF THE JUDGMENT DATED 25.11.2017 IN WPC NO.27585/2011.**