Sky Hotel -cum- Shopping Arcade v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **FRIDAY, THE 7TH DAY OF NOVEMBER 2014/16TH KARTHIKA, 1936** ## **WP(C).No. 10286 of 2014 (I)** **------------------------------------------** **PETITIONER(S) :** **--------------------------** **'SKY HOTEL -CUM-SHOPPING ARCADE', THIRUVALLA, PATHANAMTHITTA DISTRICT, REPRESENTED BY ITS MANAGING PARTNER, BABU JOHN, AGED 63 YEARS, S/O.J.JOHN.** **BY SRI.C.C.THOMAS (SENIOR ADVOCATE) ADVS. SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW** **RESPONDENT(S) :** **----------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY, TAXES (A) DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM - 695 001.** **3. THE DEPUTY COMMISSIONER OF EXCISE, PATHANAMTHATTA.** **4. THE CIRCLE INSPECTOR OF EXCISE, THIRUVALLA, PATHANAMTHITTA DISTRICT.** **BY SPL.GOVERNMENT PLEADER SRI.TOM.K.THOMAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-07-2014, ALONG WITH W.P.(C).NO.10304 OF 2014 AND CONNECTED CASES, THE COURT ON 07-11-2014 DELIVERED THE FOLLOWING:** Msd. ## **WP(C).No. 10286 of 2014 (I)** ## **---------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -------------------------------------** **EXT.P1: PHOTOCOPY OF THE FL-3 LICENSE ISSUED BY THE EXCISE COMMISSIONER TO THE PETITIONER'S HOTEL. EXT.P2: PHOTOCOPY OF THE ORDER, GO(MS)NO.56/2014/TD DATED 02/04/2014 PASSED BY THE 1ST RESPONDENT. EXT.P3: PHOTOCOPY OF THE RE-CLASSIFICATION CERTIFICATE ISSUED BY THE INDIA TOURISM DEPT., CHENNAI. EXT.P4: PHOTOCOPY OF THE JUDGMENT DATED 09/03/2012 IN W.P.(C).NO.32560/2009 PASSED BY THIS HON'BLE COURT. EXT.P5: PHOTOCOPY OF THE JUDGMENT DATED 20/11/2012 IN WA NO.1785/2012 PASSED BY THIS HON'BLE COURT. EXT.P6: PHOTOCOPY OF THE ORDER DATED 26/11/2012 IN CONT. CASE (C) NO.1277/2012 PASSED BY THIS HON'BLE COURT.** - **EXT.P7: PHOTOCOPY OF THE ORDER , GO(RT) NO.918/2012/TD DATED 04/12/2012 PASSED BY THE 1ST RESPONDENT.** - **EXT.P8: PHOTOCOPY OF THE ORDER NO.XC7-19059/07 DATED 05/12/2012 PASSED BY THE 2ND RESPONDENT.** **EXT.P9: PHOTOCOPY OF THE ORDER DATED 05/04/2013 IN SLP(C) NO.5713/2013 PASSED BY THE HON'BLE SUPREME COURT.** ## **RESPONDENT(S)' EXHIBITS** **-----------------------------------------** ## **NIL** **//TRUE COPY//** ## **P.A.TO JUDGE.** Msd. ## A.V.RAMAKRISHNA PILLAI, J. = = = = = = = = = = = = = = = = = W.P(C) Nos.10286, 10304, 10306, 10311, 10371 and 10533 of 2014 = = = = = = = = = = = = = = = = = = = = Dated this the 7[th] day of November, 2014 ## JUDGMENT The petitioners, who are conducting three star classified hotels in different districts in the State, have come up before this Court for a declaration that they are entitled to get renewal of their FL-3 licence for the year 2014-2015 in the light of G.O(MS) No.50/2014/TD. dated 2.4.2014 (Ext.P2 in all the writ petitions), since their hotels are not included in the list of 418 hotels submitted before the Apex Court and also for a direction to the respondents to receive the application for renewal of Ext.P1 licence of the petitioners and to renew Ext.P1 licence of the petitioners for the year 2014-15. 2. The petitioners, who are running three star classified hotels, submitted application for issuance of FL3 licence. After various litigations, this Court vide Ext.P4 judgment directed the State to reconsider the application quashing the impugned WP(C).10286, 10304, 10306, 10311, 10371 and 10533/14 **-:2:-** orders and observed that the law to be reckoned is the law/rule existed on the date of the impugned orders. As there was no compliance C.O.C No.1277 of 2012 was filed by the petitioners. The Government filed intra court appeal (W.A No.1785/2012) which was dismissed by a Division Bench of this Court by judgment dated 20.11.2012 (Ext.P5). Thereafter, the first respondent passed G.O(RT) No.918/2012/TD. dated 4.12.2012 and the second respondent passed Order No.XC7-19059/2007 dated 5.12.2012 with a rider that the issuance of the licence would be subject to the result of the SLP(C) to be filed before the Apex Court against the decision of the Division Bench. Accordingly, the contempt case was closed and the licence was issued. Thereafter, SLP(C) was filed before the Apex Court and it was dismissed as per order dated 5.4.2013. The petitioners have renewed their licence for the year 2013-2014. Their main grievance is that the application submitted by them for renewal of licence for the year 2014-2015 was not received by the respondents for the reasons best known to them. WP(C).10286, 10304, 10306, 10311, 10371 and 10533/14 **-:3:-** 3. The petitioners point out that Ext.P2 Government Order was issued for the renewal of existing FL3 licence wherein direction was given to renew all FL-3 except 418 non standard/bar hotels allegedly mentioned in the judgment of the Apex Court. The petitioners contend that their hotels are not included in the aforesaid list. Their grievance is that when all the licenses issued to three star bar hotels are renewed, which are not included in 418 list, the non-renewal of the licence of the petitioners is discriminatory and violative of Article 14 of the Constitution of India. It is with this background, the petitioners have come up before this Court. 4. The respondent State has filed a counter affidavit in all the writ petitions contending as follows: It was stated that the hotel of one of the petitioners was a three star classified hotel at Pathanamthitta District. FL-3 licence to the above hotel was issued as per Order No.XC7.19059/07 dated 5.12.2012 on the basis of the GO(RT) No.918/2012/TD dated 4.12.2012. The Government amended WP(C).10286, 10304, 10306, 10311, 10371 and 10533/14 **-:4:-** the Foreign Liquor Rules as per G.O(P) No.192/2011/TD dated 9.12.2011 deleting 'three star' from Rule 13(3) of the Foreign Liquor Rules. The above order was challenged before this Court and this Court by judgment dated 27.7.2012 in W.A. No.470 of 2012 quashed the said amendment. The Government preferred appeal before the Apex Court and the Apex Court upheld the Government decision in deleting three star from the rules. Hence, the amendment came into existence from 9.12.2011. In the meanwhile FL-3 licence to the petitioners' hotel was granted i.e. after the amendment of the rules. In the light of the judgment of the Apex Court in State of Kerala v. Surendra Das [2014 (1) KLT 948 (SC)] the Government have decided to defer the renewal of petitioner's licence till a new Abkari Policy is passed by the Government. The Government have not taken a decision to cancel the licence or not to renew the same. Government would take appropriate decision in this matter immediately after declaring the new Abkari Policy. In these circumstances, the applications for renewal of the petitioners' WP(C).10286, 10304, 10306, 10311, 10371 and 10533/14 **-:5:-** hotel have not been accepted by the department. In the light of the judgment of the Apex Court in Surendra Das v. State of Kerala, Government decided to defer the renewal of petitioners' licence. Government have not taken a decision to cancel the licence or not to renew this licence. It was in these circumstances that the applications for renewal of the petitioners' hotel were not accepted. As per G.O(MS) No.187/ 2011/TD. dated 8.12.2011, Government decided to dispense with the practice of granting FL-3 licenses to hotels having 3 star classification, and accordingly amendments in the Foreign Liquor Rules was made - vide G.O(P) No.192/2011 TD. dated 9.12.2011. Being aggrieved by the said decisions, several writ petitions and writ appeals were filed before this Court. This Court in the judgment dated 27.7.2012 in W.A No.470 of 2012 and other connected cases had set aside the above notifications. Being aggrieved by the impugned judgment, Government filed S.L.P(C) No.26241-26243/2012 before the Apex Court and the Apex Court allowed the appeals and uphold the decision. It is WP(C).10286, 10304, 10306, 10311, 10371 and 10533/14 **-:6:-** stated that every renewal is a fresh grant and Government have every right to deny the renewal on valid grounds. Hence, the decision of the Government in deferring the decision on the renewal of the petitioner's licence till it declares its Abkari Policy is not an insult to the judgment of this Court, as contended the petitioner. A decision would be taken in the case of the petitioner after the declaration of the new Abkari Policy. 5. I have heard the learned Senior Counsel for the petitioners and the learned Senior Government Pleader in the matter. 6. The learned Senior Counsel for the petitioners would submit that the non-renewal of licence amount to discrimination and violative of Article 14 of the Constitution of India because admittedly all the licences granted on the basis of the rule prior to 9.12.2011, that is the date of the amendment of Rule 13(3) omitting the words “three star”, are renewed. 7. Admittedly, the licenses of the petitioners were granted on the basis of the rule prior to the amendment of the rule as WP(C).10286, 10304, 10306, 10311, 10371 and 10533/14 **-:7:-** per the direction of this Court confirmed by the Apex Court. Since the directions were not complied with, the petitioners filed contempt case, and on the basis of the same, orders mentioned in the preceding paragraph were passed by respondents 1 and 2. It is evident from the above orders that licence were granted subject to the final decision of the Apex Court in the appeal to be filed by the State Government against the decision of this Court in W.A No.1785 of 2012. 8. Evidently, the State has filed appeal before the Apex Court challenging the judgment of this Court dated 20.11.2012 in W.A No.1785 of 2012 after granting licence to the petitioners on the basis of the rule prior to the amendment in compliance to the directions in the aforesaid judgment. However, the Apex Court dismissed the appeal on 5.4.2013. Copy of the order is produced as Ext.P9 in W.P(C) No.10286 of 2014. 9. The petitioners are conducting their hotels on the basis of the licenses issued and the same were renewed for the year 2013-14. Hence, the non renewal of the licence after renewing WP(C).10286, 10304, 10306, 10311, 10371 and 10533/14 **-:8:-** all the licenses granted on the basis of the rule prior to 9.12.2011 amounts to discrimination. Admittedly, the hotel of the petitioners are not included in the list of 418 hotels submitted along with the affidavit before the Apex Court. It is crucial to note that the directions of the learned Single Judge and the Division Bench were complied with only after filing Contempt Case (C) No.1277 of 2012. 10. It is clear from the records that the licence granted to the petitioners are not as per the rules prevailed after 9.12.2011 which is the date of amendment. The contra averments in the counter affidavit are, therefore, not acceptable. It is clear from the materials now placed on record that the petitioners were discriminated on account of the reasons best known to the respondents. 11. It was, inter alia, submitted by the learned Senior Government Pleader that the Government is intending to change the liquor policy. But, it has to be pointed out that in the light of the existing law, the petitioners are discriminated on account of WP(C).10286, 10304, 10306, 10311, 10371 and 10533/14 **-:9:-** the refusal to renew their licence, especially when they were not included in the list of 418 hotels. In the result, the writ petitions are allowed. It is hereby made clear that the petitioners are entitled to renew their licence (Ext.P1 in all the writ petitions) for the year 2014-15 in the light of Ext.P2 G.O., since their hotels are not included in the list of 418 hotels. The respondents are directed to receive the application for renewal of Ext.P1 licence of the petitioners along with the proportionate licence fee and to renew the same for the year 2014-015 within a period of two weeks from the date of receipt of a copy of this judgment. However, it is made clear that the this decision shall be subject to any policy decision taken by the Government in the matter which gains judicial approval. ## Sd/- A.V.RAMAKRISHNA PILLAI JUDGE krj