High Court of KeralaSingle JudgeWrit petition allowed; Ext.P12 quashed; Respond...
M/S. Hotel Mayura Inn v. State of Kerala & Others
Case / Petition Number:WP(C).No. 13194 of 2013 (Y)
Case Details & Bench
- Court
- High Court of Kerala
- Hon'ble Judges
- K. Surendra Mohan
- Judgment Date
- 2013-06-06
- Court Decision / Holding
- Writ petition allowed. Ext.P12 quashed. Respondents 1 & 2 are directed to consider Ext.P4 application in accordance with law and in light of the court’s observations, and to pass appropriate orders thereon within four weeks from receipt of a copy of this judgment.
- Final Disposition
- Writ petition allowed; Ext.P12 quashed; Respondents directed to consider Ext.P4 afresh in accordance with law and to pass appropriate orders within four weeks.
Parties to the Case
Appellants / Petitioners
- M/S. Hotel Mayura Inn
- Jose Kuruvinakunnel (Sr.)
- Mrs. Mariamma Jose
Respondents
- State of Kerala rep. by Secretary, Taxes(A) Department Govt. Secretariat, Thiruvananthapuram - 695 001
- The Excise Commissioner, Commissionerate of Excise Thiruvananthapuram 695 001
- The Joint Excise Commissioner, Central Zone, Ernakulam 682 018
- The Deputy Commissioner of Excise, Thrissur 680 001
- The Circle Inspector of Excise, Thrissur 680 001
Legal Representation & Advocates
Counsels for Petitioners
- • Sri.C.C. Thomas (Sr.)
- • Sri.M.G.Karthikeyan
- • Sri.Nireesh Mathew
Counsels for Respondents
- • GOVERNMENT PLEADER SMT. C.K. SHERIN
Case Synopsis & Summary
This writ petition challenges Ext.P12, an order of the 2nd respondent denying an FL-3 liquor license for the petitioners’ new hotel project, Mayura Inn, after surrendering the original bar license for highway development in 2010. The petitioners sought either shifting the surrendered FL3 license from the old bar to the newly constructed 3-star hotel or a fresh FL3 license. They filed Ext.P2 (2010), Ext.P3 (2012) and Ext.P4 (2012) applications; Ext.P5 referred to a Division Bench decision in Surendra Das B. v. State of Kerala, directing the petitioners to receive the benefits of that ruling. The Supreme Court, via Ext.P7, directed that pending FL3 license applications be considered within eight weeks. Despite these directives, Ext.P8 rejected the applications, and a contempt action led to Ext.P11 directing reconsideration. The court notes that an application already considered should be evaluated under the law as it existed when it was considered, and criticizes the 2nd respondent’s attempt to justify Ext.P12 by citing later policy developments. It ultimately quashes Ext.P12, and directs respondents 1 & 2 to consider Ext.P4 afresh in accordance with law, and to pass orders within four weeks, emphasizing compliance with court directions and proper legal procedure.
Submissions & Arguments
Contentions of Appellants / Petitioners
The petitioners contend that Ext.P12 was issued in denial of relief despite Ext.P11 directing reconsideration of their FL3 license applications and despite prior directions to consider the matter under the law as it existed at the time of consideration. They argue that Ext.P8’s rationale and the State’s reliance on new policy after the extant orders cannot override a court-directed review of their applications. The petitioners assert that Ext.P4 (2012) had already been considered and that the non-application of the earlier direction constitutes a breach of judicial command, warranting quashing Ext.P12 and directing fresh consideration.
Contentions of Respondents
The respondents submit that Ext.P12 was issued in accordance with the law as it stood on the date of consideration, and not on the date of the application. They contend that a One Man Commission is formulating future Abkari policy, and that it is not feasible to grant new FL3 licenses under the evolving framework. They rely on the court’s caution regarding policy changes and argue that Ext.P12 was a lawful exercise of power under the then-prevailing rules, with Ext.P11 only directing reconsideration within a lawful context.
Cited Precedents (3)
| Case Name | Citation | Treatment | Explanation |
|---|---|---|---|
| Surendra Das B. v. State of Kerala | 2012 (3) KHC 653 (D.B.) | Positive | Ext.P5 directed that petitioners be given the benefits of the Division Bench decision in Surendra Das B., which the judgment treats as an applicable precedent supporting relief. |
| KALLADA HOTELS AND RESORTS v. STATE OF KERALA | 2012(2) KLT 167 | Mentioned Only | Listed among petitioners’ exhibits; the main judgment does not analyze or apply this case within its reasoning. |
| State of Kerala & Others v. Babu John | 2012(4) KHC 735 | Mentioned Only | Listed among petitioners’ exhibits; no substantive treatment in the judgment’s reasoning. |
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Extracted Judgment Text
Exact text extracted from official judgment records.
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN**
## **THURSDAY, THE 6TH DAY OF JUNE 2013/16TH JYAISHTA 1935**
## **WP(C).No. 13194 of 2013 (Y)**
**----------------------------**
## **PETITIONER(S):**
**--------------------------**
## **1. M/S.HOTEL MAYURA INN**
- **MANNUTHY P.O., THRISSUR DISTRICT REP. BY ITS MANAGING PARTNER SRI.JOSE KURIVINAKKUNNEL (JR.) AGED 28 YEARS S/O.JOSE KURUVINAKKUNNEL.**
**2. JOSE KURUVINAKUNNEL(SR.) AGED 59 YEARS KURUVINAKKUNNEL HOUSE, POOVARANI P.O., PALA KOTTAYAM DISTRICT.**
**3. MRS. MARIAMMA JOSE, AGED 58 YEARS W/O.JOSE KURUVINAKUNNEL (SR.), KURUVINAKKUNNEL HOUSE POOVARANI P.O., PALA, KOTTAYAM DISTRICT.**
**BY ADVS.SRI.C.C.THOMAS (SR.) SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW**
## **RESPONDENT(S):**
**----------------------------**
**1. STATE OF KERALA REP. BY SECRETARY, TAXES(A) DEPARTMENT GOVT. SECRETARIAT, THIRUVANANTHAPURAM - 695 001.**
**2. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE THIRUVANANTHAPURAM 695 001.**
**3. THE JOINT EXCISE COMMISSIONER, CENTRAL ZONE, ERNAKULAM 682 018**
**4. THE DEPUTY COMMISSIONER OF EXCISE, THRISSUR 680 001.**
**5. THE CIRCLE INSPECTOR OF EXCISE, THRISSUR 680 001.**
**BY GOVERNMENT PLEADER SMT. C.K. SHERIN**
**THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## **WP(C).No. 13194 of 2013 (Y)**
**----------------------------**
## **APPENDIX**
## **PETITIONERS' EXHIBITS**
**-------------------------------------**
**EXT.P1: PHOTOCOPY OF THE STAR CLASSIFICATION CERTIFICATE ISSUED BY THE MINISTRY OF TOURISM, GOVT OF INDIA.**
**EXT.P2: PHOTOCOPY OF THE APPLICATION DATED 15/10/2010 SUBMITTED BY THE HOTEL MAYURA, MANNUTHY BEFORE THE 2ND RESPONDENT.**
**EXT.P3:PHOTOCOPY OF THE APPLICATION DATED 17/07/2012 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT.**
**EXT.P4: PHOTOCOPY OF THE APPLICATION DATED 10/8/2012 SUBMITTED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT.**
**EXT.P5: PHOTOCOPY OF THE JUDGMENT DATED 17/9/2012 IN WPC NO.19757/2012 PASSED BY THIS HON'BLE COURT.**
**EXT.P6: PHOTOCOPY OF THE LETTER DATED 22/9/2012 SENT BY THE 1ST PETITIONER TO RESPONDENTS 1 AND 2**
**EXT.P7: PHOTOCOPY OF THE ORDER DATED 19/9/2012 IN SLP(C) NO.2624124243/2012 PASSED BY THE HON'BLE SUPREME COURT.**
**EXT.P8: PHOTOCOPY OF THE ORDER NO.XC6-6530/10 DATED 21/12/2012 PASSED BY THE 2ND RESPONDENT**
**EXT.P9: PHOTOCOPY OF THE LETTER DATED 5/1/2013 SENT BY THE PETITIONERS TO RESPONDENTS 1 AND 2**
**EXT.P10: PHOTOCOPY OF THE LETTER DATED 3/9/2012 SENT BY THE 4TH RESPONDENT TO THE 2ND RESPONDENT.**
**EXT.P11: PHOTOCOPY OF THE JUDGMENT DATED 22/1/2013 IN WPC NO.1401/2013 PASSED BY THIS HON'BLE COURT.**
**EXT.P12: PHOTOCOPY OF THE ORDER NO.XC6-6530/10 DATED 20/5/2013 PASSED BY THE 2ND RESPONDENT.**
**EXT.P13: PHOTOCOPY OF THE JUDGMENT DATED 21/3/2013 IN WPC NO.6558/2013 PASSED BY THIS HON'BLE COURT.**
**EXT.P14: PHOTOCOPY OF THE CITATION, KALLADA HOTELS AND RESORTS VS. STATE OF KERALA REPORTED IN 2012(2) KLT 167.**
**EXT.P15: PHOTOCOPY OF THE CITATION, STATE OF KERALA & OTHERS VS.BABU JOHN REPORTED IN 2012(4) KHC 735.**
**EXT.P16: PHOTOCOPY OF THE NOTIFICATION, GO(P) NO.20/2013/ TD DATED 12/2/2013 PASSED BY THE 1ST RESPONDENT.**
**RESPONDENTS' EXHIBITS : NIL**
**---------------------------------------**
//True copy//
Shg/
P.A. TO JUDGE
## **K. SURENDRA MOHAN, J.**
**- - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.13194 of 2013 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6[th] day of June, 2013**
## **J U D G M E N T**
This writ petition is filed challenging Ext.P12 order of the 2[nd] respondent rejecting an application for FL-3 License submitted by the petitioners. This is the third round of litigation. The 1[st] petitioner firm was conducting a bar attached hotel by name 'Hotel Mayura'. The said hotel had to be closed down for the development of the National Highway and the Bar license of the hotel was surrendered in the year 2010. Thereafter, they started a new hotel by name 'Mayura Inn'. With respect to the new hotel, Ext.P2 application for the grant of an FL3 license was submitted as early as on 15.10.2010. In addition, Ext.P3 application dated 17.07.2012 for shifting the FL3 license that was surrendered in the year 2010 to the newly constructed hotel was also made. But, both the applications were not considered. After completion of construction of the new hotel which was classified as a '3-star hotel', another
W.P.(C) No.13194 of 2013
**-2-**
application Ext.P4 was submitted on 10.08.2012 requesting that, either their application for shifting be allowed or a fresh license be issued to them. Since no orders were passed on the said application also, W.P.(C) No.19757/2012 was filed. As per Ext.P5 judgment, it was directed that the petitioners be given the benefits of the Division Bench judgment of this Court in **Surendra Das B. v. State of Kerala [2012 (3) KHC 653 (D.B.)]** . Though the State has challenged the said judgment by filing a Special Leave Petition before the Hon'ble Supreme Court, as per Ext.P7 common order, it has been directed that applications for FL3 licenses that were pending shall be considered within a period of eight weeks. In spite of the above, the applications of the petitioners were not considered. Therefore, the petitioners moved contempt case No.5/2013. Thereupon, Ext.P8 order was passed rejecting both their applications. The ground stated in Ext.P8 is that the applicant does not have the legal authority to apply for the FL3 license sought for as per the partnership deed.
W.P.(C) No.13194 of 2013
**-3-**
2. The said order Ext.P8 was the subject matter of challenge in W.P.(C)No.1401/2013. As per Ext.P11 judgment, the writ petition was allowed and a direction was issued to respondents 1 & 3 to consider the petitioners' application for license afresh and to pass appropriate orders thereon within a period of eight weeks. Accordingly, the matter was reconsidered and by Ext.P12, the application of the petitioners has been rejected again.
3. According to the 2[nd] respondent, the order has been issued in accordance with the law applicable as on the date of consideration and not the law that was prevailing as on the date of the application. It is in accordance with the said law that he has to determine whether the license should be granted or not. Therefore, in view of the appointment of a One Man Commission for recommending the parameters for formulating the future Abkari policy and review of the FL3 licenses already granted, it is stated that, it was not possible to grant any new FL3 license. For the above reasons, according to the 2[nd] respondent, the
## W.P.(C) No.13194 of 2013
**-4-**
judgment of this court cannot be considered as per the existing rule. It is the said order that is under challenge in this writ petition.
4. I have heard the learned Senior Counsel Sri. C.C. Thomas who appears for the petitioners as well as the learned Government Pleader. I have also considered the rival contentions advanced before me anxiously.
5. The application for FL3 license that has been directed to be considered by Ext.P11 is Ext.P4 dated 10.08.2012. The said application had been considered earlier and an order, Ext.P8 dated 21.12.2012 had been passed by the 2[nd] respondent rejecting the same. It is the said order that has been set aside by Ext.P11 judgment. It is no doubt true that an application has to be considered in accordance with the law as it exists on the date on which the same is considered. However, the said principle does not apply to an application that has already been considered. In the present case, the application of the petitioners had been considered and orders had been
W.P.(C) No.13194 of 2013
**-5-**
passed thereon on 21.12.2012. The said order has been set aside by Ext.P11 judgment. A consequential direction to consider the application afresh also had been issued. It was in compliance with the said direction that the petitioners' application had to be considered. Therefore, it was incumbent on the part of the 2[nd] respondent to have considered the application in accordance with law as it stood on the date when Ext.P8 was issued.
6. A reading of Ext.P12 gives an impression that the 2[nd] respondent was searching for reasons to reject the application of the petitioners somehow and to find justification for not complying with the direction issued by this court. The attitude, to say the least, is totally unbecoming of the high office that the 2[nd] respondent is holding. I refrain from making any further observations or comments on the conduct of the 2[nd] respondent except to place on record the strong displeasure of this Court at the conduct of the 2[nd] respondent and the manner in which he has treated an order of this Court. Suffice it to hold that the
W.P.(C) No.13194 of 2013
**-6-**
2[nd] respondent shall consider the petitioners' application for FL3 license in accordance with the law subject to which he had issued Ext.P8 order. The present order Ext.P12 is not issued in compliance with the direction in Ext.P11. The reason stated therein for rejecting the application for license submitted by the petitioners cannot therefore be sustained.
7. For the above reasons, this writ petition is allowed. Ext.P12 is quashed. Respondents 1 & 2 are directed to consider Ext.P4 application in accordance with law and in accordance with the observations made above and to pass appropriate orders thereon, as expeditiously as possible and at any rate, within a period of four weeks from the date of receipt of a copy of this judgment.
## Sd/-
## **K. SURENDRA MOHAN, JUDGE**
//True copy//
P.A. TO JUDGE
shg/