Smt. E. D. Nisha v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** **THURSDAY, THE 4TH DAY OF DECEMBER 2014/13TH AGRAHAYANA, 1936** ## **WP(C).No. 29584 of 2014 (W)** **----------------------------** **PETITIONER(S):** **--------------------------** **SMT. E.D.NISHA AGED 39 YEARS W/O.P.K. SHELLY, MANAGING PARTNER KUNNATHUR MANA AYURVEDA HERITAGE HOTEL PUNNAYURKULAM P.O., THRISSUR - 679 561.** **BY ADVS.SRI.JOE JOSEPH KOCHIKUNNEL SRI.REJI GEORGE** ## **RESPONDENT(S):** **----------------------------** ## **1. STATE OF KERALA** - **REPRESENTED BY THE SECRETARY TO TAXES DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001.** **2. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE THIRUVANANTHAPURAM - 695 034.** **3. THE DEPUTY EXCISE COMMISSIONER, THRISSUR - 679 560.** **R1-R3 BY GOVERNMENT PLEADER TOM K. THOMAS** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04-122014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **lmp** ## **WP(C).No. 29584 of 2014 (W)** ## **----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-------------------------------------** **EXHIBIT-P1-PHOTOCOPY OF THE HERITAGE CLASSIFICATION CERTIFICATE DATED 08/01/2010 ISSUED TO THE PETITIONER BY THE MINISTRY OF TOURISM, GOVERNMENT OF INDIA.** **EXHIBIT-P2-PHOTOCOPY OF THE CLASSICATION NORMS ISSUED BY THE MINISTRY OF TOURISM (H & R DIVISION), GOVERNMENT OF INDIA.** **EXHIBIT-P3-PHOTOCOPY OF THE FL3 LICENCE DATED 31/08/2011 ISSUED TO THE PETITIONER.** **EXHIBIT-P4-PHOTOCOPY OF THE G.O(MS)No. 28/2013/TD DATED 04/03/2013 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT-P5-PHOTOCOPY OF THE G.O(MS) No.56/2014/TD DATED 02/04/2014 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT-P6-PHOTOCOPY OF THE G.O(MS)No.139/2014/TD DATED 22/08/2014 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT-P7-PHOTOCOPY OF THE REPRESENTATION DATED 27/08/2014 SUBMITTED BY THE PETITIONER.** **EXHIBIT-P8-PHOTOCOPY OF THE NOTICE DATED 27/08/2014 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT-P9-PHOTOCOPY OF THE G.O(P)141/2014/TD DATED 27/08/2014 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT-P10-PHOTOCOPY OF THE SUPREME COURT ORDER DATED 11/09/2014 IN SLP Nos.24585/24587/2014 AND CONNECTED CASES.** **EXHIBIT-P11(A)-PHOTOCOPY OF THE NEWS PAPER REPORT APPEARED IN INDIAN EXPRESS DAILY DATED 11/09/2014.** **EXHIBIT-P11(B)-PHOTOCOPY OF THE NEWS PAPER REPORT APPEARED IN INDIAN EXPRESS DAILY DATED 12/09/2014.** **EXHIBIT-P12-PHOTOCOPY OF THE SALES FIGURES OF VARIOUS FL LICENCES PRODUCED BY THE GOVERNMENT BEFORE THE HONOURABLE SUPREME COURT THROUGH THE AFFIDAVIT DATED 28/08/2013.** **...2** **lmp** **WP(C).No. 29584 of 2014 (W)** **----------------------------------------** **EXHIBIT-P13(A)-PHOTOCOPY OF THE NEWS PAPER REPORT APPEARED IN INDIAN EXPRESS DAILY DATED 27/05/2014.** **EXHIBIT-P13(B)-PHOTOCOPY OF THE NEWS PAPER REPORT APPEARED IN INDIAN EXPRESS DAILY DATED 02/07/2014.** **EXHIBIT-P14-PHOTOCOPY OF THE CERTIFICATE DATED 25/08/2014 ISSUED BY THE KERALA FINANCIAL CORPORATION.** **RESPONDENT(S)' EXHIBITS - NIL** **---------------------------------------** **//TRUE COPY//** **P.A. TO JUDGE** **lmp** ## **K.SURENDRA MOHAN, J. --------------------------------------------W.P.(C) No.29584 of 2014-W ---------------------------------------------Dated this the 4[th] day of December, 2014** ## **J U D G M E N T** The petitioner is conducting a hotel having Heritage classification issued by the Ministry of Tourism, Government of India. She has filed this writ petition challenging action initiated by the respondents to cancel her FL-3 licence. The proceedings have been initiated on the ground that, as per the Abkari Policy of the Government of Kerala notified for the year 2014-15 and consequential amendments brought about to the FL-3 Rules, the petitioner's hotel is not entitled to be granted an FL-3 licence. Her FL-3 licence for the year 2014-15 had been renewed provisionally and subject to the Abkari Policy to be notified. Accordingly, upon notification of the new Abkari Policy, it is proposed to cancel her FL-3 licence. 2. As already noticed above, the petitioner is a hotel classified as Heritage by the Ministry of Tourism, ## -:2:- ## W.P.(C) No.29584 of 2014-W Government of India. She is possessed of all other necessary certificates from the concerned authorities for the continued grant of an FL-3 licence. It is her contention that, she satisfies all the necessary conditions and parameters stipulated by the Abkari Act,1077 as well as the Foreign Liquor Rules, for the purpose of being granted the privilege of conducting a Bar in her hotel. However, her licence is sought to be cancelled for the sole reason that, her hotel has been held to be ineligible to apply for such licence by the Abkari Policy, 2014-2015. The counsel places reliance on the decision in **Xaviers Residency v. State of Kerala [2014(4) KLT 419]** where a batch of writ petitions challenging the Abkari Policy 2014-2015 were disposed of with the following directions:- “In the result, it is ordered as follows:- 1. The challenge against the Abkari Policy 2014-2015, by the hotels classified as two star, three star and by hotels having no classification fails. The writ petitions filed by them are therefore dismissed. -:3:- ## W.P.(C) No.29584 of 2014-W 2) The Abkari Policy 2014-2015, to the extent, it excludes hotels having Four Star and Heritage category hotels from the eligibility to be granted FL-3 licences under the Foreign Liquor Rules is set aside, being arbitrary and violative of Art.14 of the Constitution. The consequential amendments to the Foreign Liquor Rules as well as the proceedings of the Excise Commissioner cancelling the licences of such hotels are also set aside. The writ petitions filed by them are allowed as above. 3) The Abkari Policy 2014-2015 is sustained in all other respects, except to the extent indicated above.” Appeals have been filed against the said judgment by the State as well as petitioners in the said writ petitions. All the appeals are pending consideration of the Division Bench. It is submitted by the learned counsel for the petitioner that though the appeal of the State has been admitted, the prayer for stay of operation of the judgment has been declined by the Division Bench, after hearing. Therefore, according to the counsel appearing for the ## -:4:- ## W.P.(C) No.29584 of 2014-W petitioner, the petitioner in this case is entitled to the benefit of the dictum in the judgment referred to above. In view of the above, she seeks the issue of a direction to the State as well as the Excise Commissioner to accept her application and to consider the same in accordance with law, within a stipulated time. 3. I have heard the respective counsel appearing for the petitioner in this writ petition as well as the learned Government Pleader who represents the State. 4. In view of the dictum laid down by the judgment in **Xaviers Residency v. State of Kerala (supra)** that exclusion of Four Star and Heritage hotels from the category of hotels eligible to seek the issue of FL-3 licences by the Abkari Policy 2014-2015 is bad, the petitioner is justified in her contentions. The petitioner is certainly entitled to seek the benefit of the dictum laid down by this Court, the operative portion of which I have already extracted above. The said dictum shall enure to the benefit ## -:5:- W.P.(C) No.29584 of 2014-W of the petitioner herein also. In the light of the finding that hotels with Four Star and Heritage classifications are also eligible to be granted FL-3 licences, there is no justification for the issue of Exhibit P8. In view of the above, this writ petition is allowed. Exhibit P8 is quashed. **K.SURENDRA MOHAN, JUDGE** kkj