M/S.KSR ALANKAR HOTELS AND RESORTS PVT. LTD. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 19TH DAY OF JUNE 2019 / 29TH JYAISHTA, 1941 WA.No.1358 of 2019** **AGAINST THE ORDER dtd. 24.4.2019 IN WP(C) 12475/2019 of HIGH COURT** ## **APPELLANT/PETITIONER:** **M/S.KSR ALANKAR HOTELS AND RESORTS PVT. LTD. REGISTERED OFFICE, DOOR NO.39/3172 ANITHA BHAVAN, PALIYAM ROAD COCHIN-682 016, REPRESENTED BY ITS MANAGING DIRECTOR K.R.ROSHY, AGED 52 YEARS, S/O.K.S.RAMAKRISHNAN (LATE).** **BY ADVS.SRI.C.C.THOMAS (SR) SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW** ## **RESPONDENTS/RESPONDENTS:** - 1 **STATE OF KERALA REP. 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 THRISSUR, PIN-680 001.** 4 **THE CIRCLE INSPECTOR OF EXCISE VATANAPPALLY, THRISSUR DISTRICT, PIN-680 614.** ## **GP- SRI RENIL ANTO KANDAMKULATHY.** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.No.1358 of 2019 2 ## **JUDGMENT** ## **Ravikumar, J.** This intra court appeal filed under Section 5 of the Kerala High Court Act, 1958 (for short `the Act') is directed against the interim order dated 24.4.2019 in W.P.(C)No.12475 of 2019. The appellant/writ petitioner filed the above mentioned writ petition seeking quashment of Ext.P8 and for declaration and consequential directions. The learned Single Judge admitted the writ petition and passed an interim order on the following lines:- “The petitioner is permitted to remit the entire amount without prejudice to the contentions raised in the Writ Petition.” After passing the interim order on the aforesaid lines the learned Single Judge posted the writ petition for consideration along with the connected case viz., W.P.(C)No.8291 of 2019. It is the said order that is under challenge in this appeal. 2. Before going into the merits of the contentions raised in this appeal it is only apropos to refer to the Full Bench decision of this Court in **K.S. Das** v. **State of Kerala (1992 (2) KLT 358 (F.B.))** . The Full Bench was considering the questions whether an appeal would lie to a Division Bench under Section 5(i) of the Act against an W.A.No.1358 of 2019 3 interlocutory order in a writ petition, while the writ petition itself is pending and if it could be maintained, what are the circumstances under which or the types of cases in which, such an appeal would lie. The Full Bench on consideration of the said questions in the light of various authorities as also the provisions held that an appeal would lie against such orders only if the orders substantially affect or touch upon the substantial rights or liabilities of the parties or are matters of moment and cause substantial prejudice to the parties. The Full Bench also held that there is difference between the question whether an appeal would lie to a Division Bench and as to the scope of interference under Section 5 of the Act. Furthermore it was held that normally, discretionary orders would not be interfered with unless they are without jurisdiction, contrary to law, or are perverse, and they also cause serious prejudice to the parties in such a manner that it might be difficult to restore the status quo ante or grant adequate compensation. Bearing in mind the ratio of the decision of the Full Bench in **K.S. Das'** case (supra) we will proceed to consider whether this appeal merits consideration. 3. The appellant is a company conducting three hotels in the name and style `KSR Alankar Hotels and Resorts Pvt. Ltd.'. The hotels are situated at Vyttila within Ernakulam Excise Range, at Angamaly wthin Angamalay Excise Range and at Vatanappally within Vadanappally W.A.No.1358 of 2019 4 Excise Range. Admittedly, the company was conducting the said hotels on the strength of three separate FL-3 Licences till 31.3.2014. It is its contention that such licences were not renewed in the light of the policy of the Government from 1.4.2014 onwards. Subsequently, the company obtained FL-11 licences under Rule 13(11B) of the Foreign Liquor Rules in respect of the said hotels. 4. The situation that constrained the appellant to file W.P. (C)No.12475 of 2019 occurred on the following circumstances. There occurred a reconstitution of the Board of Directors of the company on 31.8.2017. According to the appellant, pursuant to the same, the Deputy Commissioner of Excise directed the company to submit applications for regularising the unauthorised reconstitution of the Board of Directors. Admittedly, the appellant submitted three applications in that regard. On one of the applications viz., the one pertaining to the hotel at Vyttila, an order was passed by the Excise Commissioner viz., the second respondent as per Ext.P5. A perusal of Ext.P5 itself would reveal that the said order was passed on an application submitted by the appellant requesting sanction for regularization of unauthorized reconstitution of the Director Board pursuant to the retirement of one of the Directors by name K.R.Suraj and consequential induction of Smt.Shereena Roshy on 31.8.2017. The request for regularization was considered and as per Ext.P5 the W.A.No.1358 of 2019 5 unauthorised reconstitution was regularized as per Section 67(2) of the Abkari Act by imposing a fine of Rs.3,00,000/-, by ordering payment of a fee of Rs.20,00,000/- for the induction of the new Director and a fee of Rs.2,00,000/- for the retirement of Shri.K.R.Suraj from the Director Board, as per the second proviso to Rule 19(iv) of the Foreign Liquor Rules. The appellant assailed the said order before this Court by filing W.P.(C)No.8291 of 2019. The writ petition was admitted and it is still pending. Ext.P6 is the interim order passed in the said writ petition on the following lines:- “The pendency of this writ petition will not stand in the way of the petitioner remitting the entire dues without prejudice to the contentions raised in this writ petition.” It is thereafter that the present order impugned viz., Ext.P8 in W.P. (C)No.12475 of 2019, pertaining to another licence, was passed by the second respondent. As stated hereinbefore, the said writ petition was admitted and the impugned interim order was passed thereon by the learned Single Judge on the lines of Ext.P6. We have already extracted the impugned interim order. The question is whether the writ appeal could be maintained in view of the nature of the interim order which is under challenge in the light of the decision of the Full Bench in **K.S. Das'** case (supra) ? We have already taken note of the fact that going by the decision in **K.S. Das'** case, as against an interim order of the nature of the present one an appeal would lie only if the order W.A.No.1358 of 2019 6 substantially affects or touches upon the substantial rights or liabilities of the parties. True that, if the order causes substantial prejudice to the parties then also it could be maintained. Going by the decision in **K.S.Das'** case (supra) normally, such discretionary orders could not be interfered with unless the impugned order was passed without jurisdiction or contrary to law or is perverse and if causes serious prejudice to the parties in such a manner that it might be difficult to restore the status quo and grant adequate compensation. The short question therefore, is whether an interference is possible with the interim order passed by the learned Single Judge on any of the aforementioned grounds. On a close scrutiny of the interim order passed by the learned Single Judge we have no hesitation to hold that, going by its nature, it would not substantially affect or touch upon the substantial rights or liabilities. It could not be said that it would cause substantial prejudice to the parties as in the impugned order itself it was made clear that permission to remit the entire amount was granted without prejudice to the contentions raised in the writ petition. As can be seen from the pleadings the partnership firm in which the appellant is the Managing Partner, has been running three hotels, each having separate FL-11 licences at different places under different Excise Ranges. Therefore, the questions to be considered in the writ petition would certainly include the question whether despite the involvement of W.A.No.1358 of 2019 7 three separate FL-11 licences the petitioner firm needs to pay fine for regularization of reconstitution as per Section 67(2) of the Abkari Act, fee for induction of new Director and for retirement of Sri.K.R.Suraj from the Director Board, as per proviso to Rule 19(iv) of the Foreign Liquor Rules only once or whether the firm needs to pay amounts towards the aforesaid counts separately in respect of the three FL-11 licences ? Needless to say that, in such circumstances, if the petitioner succeeds, appropriate orders could be passed in the writ petition and the petitioner would also get back the amount paid pursuant to the impugned interim order. Upon complying with the interim order the appellant would be able to conduct beer parlour on the strength of FL11 licence. In such circumstances, it could not be said that serious prejudice would be caused to the appellant in such a manner that it might be difficult to restore the status quo. It also cannot be said that the learned Single Judge had passed an order without jurisdiction. The order also cannot be said to be one contrary to law as it is made without prejudice to the contentions raised in the writ petition. So also, we are of the considered view that the order cannot be said to be perverse in the said circumstances. As noticed hereinbefore, on the similar situation when the petitioner assailed Ext.P5 order another learned Single Judge of this Court had passed Ext.P6 order and the order impugned is on the same lines as that of Ext.P6. W.A.No.1358 of 2019 8 5. On going through the various grounds raised by the appellant in this appeal, to assail the interim order passed by the learned Single Judge, they are more or less the same raised in the writ petition and therefore, we are of the considered view that if we consider those contentions and pass orders or make any observation, then, nothing would survive for further consideration in the writ petition. At any rate, such consideration would prejudice either of the parties in the writ petition. In the light of the aforesaid circumstances, we are of the considered view that this writ appeal merits no consideration. It is liable to fail. However, in the circumstances, we would request the Single Bench to dispose of the writ petition as expeditiously as possible. Subject to the same, this appeal is dismissed. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **N.NAGARESH Judge** TKS