Maggie Davis v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 17TH DAY OF DECEMBER 2014/26TH AGRAHAYANA, 1936 WP(C).No. 26597 of 2014 (Y) ---------------------------- PETITIONER: -------------- MAGGIE DAVIS MANAGING PARTNER, MOOKKANNOOR TOURIST HOME DOOR NO.1/177-A, MOOKKANNOOR POST ERNAKULAM DISTRICT 683577 BY ADV. SRI.B.KRISHNA MANI RESPONDENTS: ---------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TAXES (A) DEPARTMENT GOVERNMENT SECRETARIAT GOVERNMENT OF KERALA THIRUVANANTHAPURAM-695 001. 2. THE COMMISSIONER OF EXCISE COMMISSIONORATE OF EXCISE THIRUVANANTHAPURAM-695 001. 3. THE DEPUTY EXCISE COMMISSIONER OPP SARITHA THEATER, KOCHI-681 18 4. CIRCLE INSPECTOR OF EXCISE ALUVA, ERNAKULAM- 683 101. R BY SPL. GOVERNMENT PLEADER SHRI.TOM K.THOMAS THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26597 of 2014 (Y) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS -----------------------EXT.P1 - TRUE COPY OF THE PROCEEDING NO.12 HRA CC(37)12 DATED 13-02-2013 ISSUED BY THE GOVERNMENT OF INDIA, MINISTRY OF TOURISM EXT.P2 - TRUE COPY OF THE APPLICATION DATED 25-2-2013 PRAYING FOR FL3 (HOTEL RESTAURANT) LICENCE EXT.P3 - TRUE COPY OF THE RELEVANT PORTION OF THE COVERING LETTER DATED 28-8-2013 EXT.P4 - TRUE COPY OF THE POSTAL RECEIPTS EXT.P5 - TRUE COPY OF THE ABKARI POLICY IN RESPECT OF THE YEAR 2012-2013 EXT.P6 - TRUE COPY OF THE RELEVANT PORTION OF WRIT PETITION WPC.NO.6153/2013 DATED 3-3-2013 BEFORE THE HON'BLE HIGH COURT OF KERALA, ERNAKULAM EXT.P7 - TRUE COPY OF THE JUDGMENT DATED 14-3-2013 IN WPC.NO.6153/2013 BEFORE THE HON'BLE HIGH COURT OF KERALA, ERNAKULAM EXT.P8 - TRUE COPY OF THE ORDER DATED 12-2-2103 ISSUED BY THE GOVERNMENT OF KERALA EXT.P9 - TRUE COPY OF THE ORDER DATED 22-8-2014 ISSUED BY THE GOVERNMENT OF KERALA EXT.P10 - TRUE COPY OF THE REPORT OF THE ONE MAN COMMISSION RESPONDENT(S)' EXHIBITS NIL ------------------------ JJ /TRUE COPY/ P.S.TO JUDGE ## K. SURENDRA MOHAN,J. ------------------------------W.P(C) NO.26597 OF 2014 ---------------------------------Dated this the 17[th] December, 2014. ## JUDGMENT The petitioner is conducting a hotel with Four Star classification issued by the Ministry of Tourism, Government of India. She 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 had tried to submit an application for the grant of a Bar licence (FL-3 licence), her application was not accepted 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. She has obtained all the other necessary certificates from the concerned authorities and has acquired eligibility for the grant of an FL-3 licence. It is the contention that, she WPC 26597/2014 2 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. Her application has not been accepted or considered for the sole reason that, she 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 granted FL-3 licences under the Foreign Liquor Rules is set aside, being arbitrary and violative of WPC 26597/2014 3 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 Counsel Sri. B.Krishna Mani, 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 view of the above, she seeks the issue of a direction to the WPC 26597/2014 4 State as well as the Excise Commissioner to accept her 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 her 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 26597/2014 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, she has a subsisting four star classification, subject to her 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 26597/2014 6