M/S. KALLADA HOTELS AND RESORTS, MANNUTHY v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR & THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH** **WEDNESDAY, THE 14TH DAY OF MARCH 2012/24TH PHALGUNA 1933** **WA.No. 469 of 2012 () IN WPC/2570/2012** **---------------------------------------** **AGAINST THE ORDER/JUDGMENT IN .NO./ IN WPC.2570/2012 DATED 23-02-2012** **APPELLANT(S)/APPELLANT:** **----------------------** **M/S. KALLADA HOTELS AND RESORTS MANNUTHY, THRISSUR DISTRICT REP. BY ITS MANAGING PARTNER, K.R.SUNILKUMAR AGED 49 YEARS.** **BY ADVS.SRI.C.C.THOMAS (SR.) SRI.NIREESH MATHEW SRI.M.G.KARTHIKEYAN** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------** **1. STATE OF KERALA REP. BY SECRETARY, TAXES (A)DEPARTMENT GOVT. SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE EXCISE COMMISSIONER COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM.** **3. THE JOINT COMMISSIONER OF EXCISE CENTRAL ZONE, ERNAKULAM.** **4. THE DEPUTY COMMISSIONER OF EXCISE THRISSUR.** **5. THE CIRCLE INSPECTOR OF EXCISE THRISSUR.** **BY ADVOCATE SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM BY ADDL. ADVOCATE GENERAL SRI.P.C.IYPE, BY SPL. GOVERNMENT PLEADER SUJITH MATHEW JOSE** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.N. RAMACHANDRAN NAIR & BABU MATHEW P. JOSEPH, JJ.** ## **---------------------------------------------------W.A. No. 469 OF 2012** ## **-----------------------------------------------------** ## **Dated this the 14[th] day of March, 2012** ## **J U D G M E N T** ## Ramachandran Nair, J This Writ Appeal is filed against the judgment of the learned Single Judge directing the Excise Commissioner and the Government to consider appellant's application for grant of FL3 licence for three star Hotel but with a rider that the application should be considered taking note of the change of law which is nothing but a provision introduced by the Government on 9.12.2011 dis-entitling three star hotels from getting FL3 licence. 2. We have heard senior counsel Sri.C.C.Thomas appearing for the appellant and Special Government Pleader appearing for respondents. While the appellant's case is that application for FL3 licence was submitted vide Ext.P2 dated 29.7.2010 and in spite of favourable ## **W.A. No.469 OF 2012** **:2 :** recommendations made by the Joint Excise Commissioner the Excise Commissioner has not so far granted licence. The specific case of the appellant is that only on account of a wrong report from lower authorities the application was initially rejected by the Government vide Ext.P6 on 25.8.2011 much before the policy was amended on the misunderstanding that the hotel is within the prohibited distance from a temple as stated by the Deputy Commissioner and Joint Excise Commissioner in their first reports. However, the actual distance on rechecking under the orders of the Excise Commissioner was found to be 206 mtrs. by the Deputy Commissioner of Excise and 218 mtrs. by the Village Officer which are produced as Exts.P9 and P10 respectively. In other words, contention raised by the appellant is that if at least Ext.P9 dated 22.9.2011 which was forwarded by the Joint Excise Commissioner was acted upon, certainly much before the date of change of policy on ## **W.A. No.469 OF 2012** **:3 :** 9.12.11, the appellant would have got the licence. Appellant's claim therefore is that the mistake of the respondent should not lead to the denial of FL3 licence which is otherwise entitle to the appellant prior to the change of policy effected on 9.12.11. 3. Special Government Pleader, on the other hand relied on the decision of the Hon'ble Supreme Court in **State of Kerala v. B. Six Holiday Resorts(P) Ltd. and others** reported in **2010 (5) SCC 186** where the Hon'ble Supreme Court held that an application for FL3 licence has to be considered with reference to the rules/law prevailing or in force on the date of consideration of application by Excise authorities and not with reference to the law as on the date of the application. 4. After hearing both sides and after going through the judgment of the Hon'ble Supreme Court, we are of the view that the Hon'ble Supreme Court's judgment does not ## **W.A. No.469 OF 2012** **:4 :** bar the appellant from getting licence because appellant does not have a claim that the policy or rule applicable should be with reference to the date of application. On the other hand, application-Ext.P2 itself was dated 29.7.2010 and the same was kept pending raising various objections. Appellant was made to discharge arrears due from late father of the partner of the appellant's firm as is evident from Ext.P8 dated 9.5.2011. Further Ext.P6 dated 25.8.2011 is issued by the Government declining licence stating that Deputy Commissioner and Joint Commissioner did not recommend appellant's case on account of the allegation that the Hotel is located within the prohibited distance from a temple and treating appellant's hotel as an objectionable site. However, it is revealed from Exts.P8 and P9 which are reports submitted by the Joint Excise Commissioner and the Deputy Excise Commissioner respectively stating that their original reports were wrong ## **W.A. No.469 OF 2012** **:5 :** as the Temple is situated beyond the prohibited distance from the appellant's hotel. It is seen from the statement furnished by the Deputy Commissioner of Excise Thrissur that all papers were forwarded with revised recommendations from the Joint Commissioner on 11.10.2011 which if acted upon would have led to issuance of licence to the appellant before the policy change that occurred on 9.12.11. 5. Senior Counsel appearing for the appellant produced another licence issued to a similar hotel on 2.12.12 against an application submitted on 2.9.12 which shows that if the respondent wants the application would be processed and disposed of within three months whereas in this case the application is submitted on 29.7.2010 for grant of licence with all the recommendations at least on 22.9.11 vide Ext.P9 report of the Joint Excise Commissioner is still not finally decided and was kept ## **W.A. No.469 OF 2012** **:6 :** pending until the rule is changed. 6. Going by the judgment of the Hon'ble Supreme Court the law applicable is the law that is in force when the excise authorities at various levels consider an application for FL3 licence. As is evidenced by the records produced in this case, the application submitted before the Excise Commissioner goes for enquiry to the Deputy Commissioner who make his recommendations which in turn is endorsed by the Joint Commissioner of Excise. Thereafter the application goes to Government and with the permission of the Government the Excise Commissioner issues the licence. In this case the initial denial of licence to the appellant was on account of the mistake about the distance from the temple which was wrongly reported as within the prohibited distance. It is seen that within one month of issuance of the first report namely Ext.P6 dated 25.8.2011 the Joint Excise Commissioner corrected the ## **W.A. No.469 OF 2012** **:7 :** mistake on 22.9.2011 vide Ext.P9 recommending appellant's case for issuance of licence. If Ext.P6 was issued with correct distance without committing a mistake and at least if the correct report namely Ext.P9 dated 22.9.2011 was acted upon in time the appellant would have got licence even before the new policy was introduced. Respondent has not brought to the notice of this court any other objection against entitlement of the appellant for licence. We feel appellant cannot be declined licence on account of the mistake committed by the excise authorities in Ext.P6 report. In any case since by 22.9.2011, correct report was submitted vide Ext.P9 we feel the amended rule which came into force on 9.12.11 cannot be applied to appellant. So much so, we hold that appellant is entitled to have their application finally considered and disposed of by the Government and Excise Commissioner with reference to Rule 13(3) as it stood prior ## **W.A. No.469 OF 2012** **:8 :** to the amendment introduced to it with effect from 9.12.11. Accordingly the Writ Appeal is allowed vacating the observation of the learned Single Judge in this regard and with a direction to the respondent to consider and pass orders on appellant's application at the earliest. Issue copy of the judgment to the Government Pleader for immediate compliance. ## Sd/- **C.N. RAMACHANDRAN NAIR, JUDGE.** **Sd/- BABU MATHEW P. JOSEPH, JUDGE.** ul/- _[True copy]_ _P.S. to Judge._