Seaport Hotels Cochin (P) Ltd. v. Elamkunnapuzha Grama Panchayath & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH MONDAY, THE 8TH DAY OF FEBRUARY 2016/19TH MAGHA, 1937 ## WP(C).No. 2073 of 2016 (H) --------------------------- PETITIONER(S): ----------------- M/S. SEAPORT HOTELS COCHIN (P) LTD. REP. BY ITS DIRECTOR BINU ELLIKKAT MOHANAN THEKKENMALIPPURAM AZHEEKAL P.O., VYPEEN COCHIN - 682 510. BY ADVS.SRI.K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI SRI.REJI GEORGE RESPONDENT(S): ---------------------------- ## 1. ELAMKUNNAPUZHA GRAMA PANCHAYATH REP. BY ITS SECRETARY, MALIPPURAM P.O. KOCHI - 682 510. 2. SECRETARY ELAMKUNNAPUZHA GRAMA PANCHAYATH, MALIPPURAM P.O KOCHI - 682 510. ## Addl.3. THE COMMISSIONER OF EXCISE TRIVANDRUM. (ADDL.R3 IS SUO MOTU IMPLEADED AS PER ORDER DATED 25.01.2016 ) R1-R2 BY ADV. SRI.SAJAN MANNALI R1-R2 BY ADV. SRI.AADITHYAN S.MANNALI R3 BY ADV. GOVERNMENT PLEADER SRI.VIJU THOMAS. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 2073 of 2016 (H) --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ---------------------------- - P1 - PHOTOCOPY OF THE JUDGMENT DT. 14.10.2015 IN WPC NO. 26705/2015 OF THIS HON'BLE COURT. - P2 - PHOTOCOPY OF THE 4 STAR CLASSIFICATION CERTIFICATE DT. 13.07.2012 ISSUED BY THE MINISTRY OF TOURISM, GOVERNMENT OF INDIA. - P3 - PHOTOCOPY OF COMMUNICATION DT. 18.10.2012 ISSUED BY THE DEPUTY EXCISE COMMISSIONER ERNAKULAM. - P4 - PHOTOCOPY OF THE ORDINANCE NO.63/2012 DT. 25.11.2012. - P5 - PHOTOCOPY OF RECOMMENDATION/ORDER DT. 09.12.2012 ISSUED BY THE EXCISE COMMISSIONER. - P6 - PHOTOCOPY OF THE GO(RT) NO. 967/2014/TD DT. 04.12.2014. - P7 - PHOTOCOPY OF THE CERTIFIED COPY OF DECISION NO.II DT. 03.7.2015 ISSUED BY THE 1ST RESPONDENT. - P8 - PHOTOCOPY OF THE COUNTER AFFIDAVIT FILED BY RESPONDNETS 1 AND 2 IN WPC NO. 26705/2015. P9 - PHOTOCOPY OF THE RTI APPLICATION DT. 27.07.2015. P9(A) - PHOTOCOPY OF THE REPLY SUBMITTED BY PANCHAYATH ON 22.8.2015. - P10 - PHOTOCOPY OF THE ORDER NO.A5 10886/2015 DT. 11.12.2015 ISSUED BY THE 1ST RESPONDENT. - P11 - PHOTOCOPY OF THE MINUTES OF THE PANCHAYATH COMMITTEE DT. 09.12.2015. - P12 - PHOTOCOPY OF THE RELEVANT PAGES OF JUSTICE RAMACHANDRAN COMMISSION REPORT. RESPONDENT(S)' EXHIBITS : NIL. ------------------------------ //TRUE COPY// P.S. TO JUDGE. 'C.R.' **==> picture [335 x 69] intentionally omitted <==** **==> picture [136 x 15] intentionally omitted <==** The petitioner hotel situate within the first respondent Panchayat was awarded a four star category rating by Ext.P2 proceedings dated 13.7.2012 of the Ministry of Tourism, Government of India. The petitioner put in an application dated 29.2.2012 for the grant of FL-3 licence to vend foreign liquor as per the abkari policy then in vogue. This was followed by filing W.P.(C) No.7566/2012 on the file of this Court which was disposed of by judgment dated 27.3.2012 inter alia observing as follows:- “Therefore the writ petition is disposed of directing respondents 1 and 2 to consider Ext.P1 and to take a final decision on the question of granting FL3 licence to the petitioner at the earliest possible, at any rate before the expiry of the current financial year.” (emphasis supplied) 2. Respondents 1 and 2 aforesaid who were the State of Kerala and the Excise Commissioner respectively did not take a final decision on the application within the time stipulated. The W.P (C) No.2073/2016 2 application was rejected by the State Government on 25.1.2013 on the ground that there was an unrecognised school and a prayer hall nearby. The said order was quashed in W.P.(C) No.6558/2013 on the file of this Court by judgment dated 21.3.2013 in Seaport Hotels Cochin (P) Ltd. v. State of Kerala [2013 (2) KLT 505]. It was held therein as follows:- “7. With respect to the contention of the learned Government Pleader that the present policy of the Government does not permit the grant by a fresh FL3 licence and for the said reason, the application of the petitioner could not be considered, the learned counsel for the petitioner places reliance on Ext.P3 judgment of this Court in W.P.(C) No.7566 of 2012 by which, a direction was issued as early as on 27.03.2012 to the 1[st] and 2[nd] respondents to take a final decision on the petitioner's application for the issue of an FL3 licence, before expiry of the said Financial Year. About an year has been elapsed thereafter. The petitioner is not responsible for the said delay and cannot be prejudiced on the said ground. Therefore, the present change in the Abkari Policy cannot be a W.P (C) No.2073/2016 3 ground to deny the grant of an FL3 licence to the petitioner. For the above reason, the application submitted by the petitioner would have to be considered in compliance with the directions in Ext.P3 judgment.” (emphasis supplied) 3. The inaction on the part of the respondents therein to comply with the directions compelled the petitioner to initiate proceedings in contempt as COC.No.450/2014 on the file of this Court. This lead to the State Government passing Ext.P6 order dated 4.12.2014 again declining the application for the grant of FL-3 licence to the petitioner. The relevant part of the order is extracted below:- “4. Subsequently the applicant filed CC(C) No.450/14 (S) against the non-compliance of High Court order dated 21/03/2013 in WP(C) No.6558/13 and the Hon'ble Court issued notice to the respondents on 22/07/2014. Since Government have announced its Abkari Policy on 22.08.14 according to which no FL3 licences can be issued to any hotel other than five star hotels. Hence the application of the petitioner for FL3 licence to the petitioner's W.P (C) No.2073/2016 4 hotel was rejected as per order read as 5[th] and 6[th] papers above. The applicant's Seaport Hotel is a 4 star classified hotel. Hence Government is not in a position to grant fresh FL.3 licence to the petitioner's 4 star classified hotels, in view of the present Abkari Policy, though the petitioner's hotel was entitled to grant FL.3 licence in the light of Rule prevailed on the date of consideration of the application.” (emphasis supplied) The petitioner was denied FL-3 licence only because of the change in the abkari policy on 22.8.2014 even though its entitlement for the same as on the date of consideration of the application was recognised. 4. Section 232 of the Kerala Panchayat Raj Act, 1994 (the 'Act' for short) was amended with effect from 25.11.2012 necessitating the previous permission in writing of the Panchayat to locate an abkari shop. The first respondent Panchayat by Ext.P7 resolution dated 3.7.2015 decided not to issue a No Objection Certificate to anyone including the petitioner for an abkari shop to be located within its area. The first respondent Panchayat refused to issue the No Objection W.P (C) No.2073/2016 5 Certificate purporting to rely on the amended provisions of Section 232 of the Act. The above resolution was however set at naught by this Court by Ext.P1 judgment dated 14.10.2015 in W.P.(C) No.26705/2015 filed by the petitioner. The Panchayat was directed to take a decision on the question of issuing a No Objection Certificate anew lest it becomes an abdication of its statutory power. The Panchayat by Ext.P10 order dated 11.12.2015 communicated Ext.P11 resolution dated 9.12.2015 deciding to refuse a No Objection Certificate to the petitioner. The petitioner challenges Ext. P11 resolution and also seeks a declaration that it is entitled for an FL-11 license to vend Beer and Wine as per the present abkari policy. 5. The first respondent Panchayat maintains that it has powers to refuse a No Objection Certificate since permission to locate an abkari shop within its jurisdiction can be declined. It is the case of the Panchayat that its newly elected Committee has not hitherto issued any No Objection Certificate to facilitate the functioning of an abkari shop. Moreover the inhabitants of the Panchayat are mostly fishermen W.P (C) No.2073/2016 6 and poor workers whose family was affected by the Vypeen Liquor tragedy of the year 1982. The Panchayat asserts that Ext. P10 order communicating Ext.P11 resolution to refuse a No Objection Certificate to the petitioner cannot be faulted with. The third respondent Commissioner of Excise however concedes that one another Beer and Wine parlour is functioning within the Panchayat from the year 2012. It appears that the said licensee who was enjoying an FL-3 license to vend foreign liquor was issued an FL-11 license after the advent of the new Abkari policy. The Commissioner of Excise adds that one another application for FL-11 license put in by another is under process pursuant to the judgment in W.P.(C).No. 14029/2013. This Court by judgment dated 18.12.2015 therein has set aside the condition in the order of sanction insisting on a No Objection Certificate from the local authority. 6. I heard Mr. K. Jaju Babu, Senior Advocate on behalf of the petitioner, Mr. Sajan Mannalai, Advocate on behalf of respondents 1 and 2 and Mr. Viju Thomas, Senior Government Pleader. The question therefore arises as to the necessity to obtain a No W.P (C) No.2073/2016 7 Objection Certificate in terms of Section 232 of the Act and the legality of Ext.P11 resolution. 7. This Court by judgment dated 27.3.2012 in W.P.(C) No.7566/2012 directed the consideration of the application for the grant of FL-3 licence to the petitioner before the expiry of that financial year. The change in the abkari policy for the year 2012-13 was held to be not a ground to deny the grant of FL-3 licence to the petitioner by judgment dated 21.3.2013 in W.P.(C) No.6558/2013. The State Government by Ext.P6 order dated 4.12.2014 expressed its inability to grant a fresh FL-3 licence to the petitioner in view of the new abkari policy announced on 22.8.2014. Nevertheless the entitlement of the petitioner for the grant of FL-3 licence in the light of the Rules that prevailed on the date of consideration of its application was recognised. The conjoint effect of the judgments in W.P.(C) Nos.7566/2012, 6558/2013 and Ext.P6 order is that the petitioner is tied down by the Rules as it then existed as on 31.3.2012. Section 232 (2) of the Act which insists on previous permission in writing of the Village Panchayat to locate an abkari W.P (C) No.2073/2016 8 shop within its area came into effect on 25.11.2012. It is beyond doubt that the said Rule has no application for the grant of FL-11 licence (by convertion of FL-3 licence) as per the abkari policy introduced with effect from 22.8.2014. 8. It is not as if that there is no other FL11 licensee vending Beer and Wine within the limits of the first respondent Panchayat and at least the existence of one is well conceded. The Commissioner of Excise has filed a statement in the writ petition indicating that a Beer and Wine Parlour is being run by a licensee since the year 1996. Another application for the grant of FL-11 licence is also reportedly under process pursuant to the judgment dated 18.12.2015 in W.P.(C) No.14029/2013. The right of the petitioner under Article 19(1)(g) to trade in liquor does exist provided the State permits any person to undertake this business. The Supreme Court while upholding the abkari policy of the State has recently in Kerala Bar Hotels Association v. State of Kerala [2016 (1) KLT 134 (SC)] observed as follows:- **==> picture [252 x 13] intentionally omitted <==** W.P (C) No.2073/2016 9 submissions of the Respondents that there is no right to trade in liquor because it is res extra commercium. The interpretation of Khoday put forward by Mr.Sundaram is, in our opinion, more acceptable. A right under Article 19(1)(g) to trade in liquor does exist provided the State permits any person to undertake this business. It is further qualified by Article 19 (6) and Article 47. The question, then, is whether the restrictions imposed on the Appellants are reasonable.” (emphasis supplied) It can safely be concluded that a FL-11 licence to vend Beer and Wine can be issued to the petitioner without insisting on a previous permission of the Panchayat under Section 232(2) of the Act. The needful in this regard shall be done by the Commissioner of Excise within a period of one month from the date of receipt of a copy of this judgment. 9. But whether the Panchayat was justified or not in passing Ext.P11 resolution need not be addressed in this writ petition in view of the conclusion reached above. I am not therefore considering the legality or otherwise of Ext.P11 W.P (C) No.2073/2016 10 resolution of the first respondent Panchayat refusing to issue a No Objection Certificate. The Writ Petition is allowed. No costs. Sd/V.CHITAMBARESH, Judge. nj.