State of Kerala v. P. L. Prakash James & Elamkunnapuzha Grama Panchayath & Secretary, Elamkunnapuzha Grama Panchayath

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 17TH DAY OF AUGUST 2016/26TH SRAVANA, 1938 W.A.No. 1602 of 2016 () IN W.P.(C).14029/2013 -----------------------------------------------------------AGAINST THE JUDGMENT IN WP(C) 14029/2013 of HIGH COURT OF KERALA. APPELLANT(S)/RESPONDENTS 3-6 IN WP(C): ------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, - TAXES (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANNTHAPURAM. 3. THE DEPUTY COMMISSIONER OF EXCISE, ERNAKULAM 682 018. 4. THE CIRCLE INSPECTOR OF EXCISE, EXCISE CIRCLE3 OFFICE, KOCHI. BY ADV. GOVERNMENT PLEADER SRI MANU. V. RESPONDENT(S)/PETITIONERS & RESPONDENTS 1 & 2 IN W.P(C): ----------------------------------------------------------------------------------------- 1. P.L.PRAKASH JAMES, - S/O LAWRANCE (LATE), PROPRIETOR, M/S P.J. PRINCES REGENCY, PUTHUVYPPU, ELAMKUNNAPUZHA, 682 503. 2. THE ELAMKUNNAPUZHA GRAMA PANCHAYATH, ELAMKUNNAPUZHA, MALIPPURAM P.O, PIN 682 503, ERNAKULAM DISTRICT, REPRESENTED BY ITS SECRETARY. ## 3. THE SECRETARY, THE ELAMKUNNAPUZHA GRAMA PANCHAYATH, ELAMKUNNAPUZHA, MALIPPURAM P.O, PIN 682 503, ERNAKULAM DISTRICT. R1 BY ADV. SRI.M.G.KARTHIKEYAN R1 BY ADV. SRI.NIREESH MATHEW R2 & R3 BY SRI.SAJAN MANNALI THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17-08-2016 ALONG WITH W.A. NO. 1603 OF 2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## K. SURENDRA MOHAN & MARY JOSEPH, JJ. - - - - - - - - - - - - - - - - - W.A. Nos. 1602 & 1603 of 2016 - - - - - - - - - - - - - - - - - Dated this the 17[th] day of August, 2016. ## JUDGMENT ## Surendra Mohan, J. Both these Writ Appeals are filed by the State challenging the common judgment of the learned Single Judge allowing two Writ Petitions, W.P.(C) Nos. 14029 of 2013 and 9280 of 2013. The appellants are the respondents in the Writ Petitions. Both these cases concern the grant of FL-11 licences under the Foreign Liquor Rules. FL-11 licences are issued for the conduct of Wine/Beer Parlours within the State. They are granted only to hotels having a classification of Three Star and above. It is not in dispute that, the hotels in both these Writ Appeals satisfy the said condition. The respective hotels are arrayed as 1[st] respondent in both the Appeals. As per the judgment appealed against, the learned W.As.1602 & 1603/2016. 2 Single Judge has set aside the impugned order Ext.P3 issued by the Excise Commissioner and has directed the grant of FL-11 licences to the hotels without insisting on the condition stipulated by the said order, namely, that they should get a No Objection Certificate from the Local Authority. 2. The short facts necessary for our purpose are the following: The hotels in both these Writ Appeals, had submitted separate applications for the issue of FL-11 licences. They are produced as Ext.P2 in the respective Writ Petitions. As per Ext.P8 in W.P.(C) No. 14029 of 2013 dated 21.7.2012, the Deputy Commissioner of Excise had recommended the application. Thereafter, by Ext.P9 proceedings dated 26.7.2012, the Joint Commissioner of Excise also recommended the application. Subsequently, as per Ext.P10 proceedings dated 4.9.2012, the Excise Commissioner also recommended that the first 3 W.As.1602 & 1603/2016. respondent/writ petitioner be issued with an FL-11 licence and sought sanction of such issuance. Ext.P10 was followed by an order dated 6.12.2012 of the Government. The Deputy Secretary has issued the order for the Secretary to Government according sanction for the grant of FL-11 licence to the first respondent/writ petitioner. It was pursuant to the above that the impugned order in the writ petition Ext.P3 was issued by the Excise Commissioner. However, while issuing the said order, the Excise Commissioner incorporated a rider that the applicant should obtain necessary clearance from the Grama Panchayat authorities as per the provisions of an Ordinance dated 25.11.2012 promulgated amending the Kerala Panchayat Raj Act. It was the said clause that was challenged as offensive in the writ petition. 3. The writ petitioner in W.P.(C) No. 9280 of 2013 had submitted his application Ext.P2 on 5.10.2010. The same was recommended by the Deputy Excise Commissioner as per W.As.1602 & 1603/2016. 4 Ext.P10 dated 18.11.2011 and by the Joint Excise Commissioner on 16.12.2010. As per Ext.P9 dated 15.3.2012 the Excise Commissioner also recommended the same. The Government had accorded sanction for the grant of FL-11 licence to the said Hotel also as per its order dated 6.12.2012. As in the former case, the Excise Commissioner has stipulated a condition in Ext.P3 order that the applicant should obtain a No Objection Certificate from the Kanhangad Municipality. 4. After considering the respective contentions of the State as well as the writ petitioners, by judgment dated 18.12.2015 the learned Single Judge has allowed both the Writ Petitions and has set aside the impugned orders evidenced in the respective Writ Petitions by Ext. P3 to the extent it required the petitioners to obtain Clearance Certificates from the Local Authority concerned. These Writ Appeals are directed against the said judgments. W.As.1602 & 1603/2016. 5 5. According the Government Pleader, the parties who are arrayed as respondents in both these Writ Appeals have no right to conduct trade in liquor. It is the absolute privilege of the State to grant or refuse permission. Therefore, it is contended that the State is at liberty to stipulate the conditions subject to which such privilege should be granted. According to the Government Pleader, each licence has to be granted in accordance with the law as it stands at the time of issuing the licence and not in accordance with the law as it stood on the date on which the application for the grant of licence was submitted. In support of the above proposition, the Government Pleader has placed reliance on the decision of the Apex Court in Kuldeep Singh v. Govt. of NCT of Delhi ((2006) 5 SCC 702), particularly paragraph 36, to contend that, it is the date of issue of the licence that is crucial in the matter of deciding whether, such licence could be granted or not. In the said case, there was a change of policy as a result W.As.1602 & 1603/2016. 6 of which it was not possible for the applicant therein to have sought for the licence, on the date on which the same was granted. The learned Government Pleader has also placed reliance on the decision in Chief Marketing (Marketing Division), Coal India Ltd. v. Mewat Chemiccals & Tiny SSI Coal Pulverising Unit ((2004) 4 SCC 146), particularly paragraph 16, to contend that the position prevailing as on the date of allotment, with respect to law has to be applied. What was involved in the said case was the right of allotment of coal. Another decision on which reliance is placed is S.B. International Ltd. v. Assistant Director General of Foreign Trade ((1996) 2 SCC 439), particularly paragraph 8. The said decision also reiterates that it is the date of issue of licence that is relevant and not the date of application. Therefore, it is contended that the Excise Commissioner was perfectly within his power in insisting upon compliance with the provisions of the Ordinance, that by then had been promulgated, as a W.As.1602 & 1603/2016. 7 condition for the grant of FL-11 licence. In the said view of the matter, it is contended that the learned Single Judge has seriously erred in setting aside the impugned order and allowing the Writ Petitions. 6. Adv. M.G. Karthikeyan on the other hand defends the judgment of the learned Single Judge, representing the party respondents, by pointing out that though it is the date of actual issue of licence that has to decide the manner in which the same should be issued. The fact remains that in the present case, all processes involved in the grant of licence had been completed and what remained was the mere issuance of licence in the proper form after receiving the fee stipulated for the issue thereof. Since the decision making with regard to the question as to whether a licence should be granted or not had already been completed, what remained was only for the Excise Commissioner to perform the function of actually issuing the licence. The same, W.As.1602 & 1603/2016. 8 according to the counsel, is only a clerical act with no element of discretion available to him. The counsel also points out that, the decision in Kuldeep Singh (supra) has been explained by the Apex Court in State of Kerala v. B.Six Holiday Resorts (P) Ltd. ((2010) 5 SCC 186) at paragraphs 27 and 28 holding that, once the decision to grant the licence was taken, the same would govern. In the present case, it is the Excise Commissioner, who has to take such decision under the orders of the Government, going by Rule 13(11) of the Foreign Liquor Rules. After such decision having been taken, it is contended that, the Excise Commissioner has no power or authority to stipulate a further condition as done in the impugned orders. 7. Heard. We have taken note of the respective dates on which Excise Authorities had considered the respective applications for licences in these cases with the object of stressing the fact that the respective applications had W.As.1602 & 1603/2016. 9 undergone the scrutiny of the various authorities and consideration at their hands at different points of time as evident from the proceedings produced in the writ petitions. The applications in both these cases were recommended by each of the authorities, namely, the Deputy Commissioner of Excise, the Joint Commissioner of Excise as well as the Excise Commissioner. Thereafter, the Government also accorded its sanction for the grant of licence on 6.12.2012, as already noticed above. The copy of the Government Order dated 6.12.2012 issued in respect of the 1[st] respondent in W.A. No. 1602 of 2016 was handed over to us by the Government Pleader, in Court. The said order reads as follows: “Attention is invited to the reference cited. Sanction is hereby accorded for granting FL-11 licence to M/s. P.J. Princes Regency, Njarakkal, Ernakulam, functioning in building No.7/52-D of Puthuvyppu Village, Elamkunnapuzha Panchayat, Kochi in 89.23 Arera of land in Survey No. 40/1, 40/26, 42/13, 40/2, 42/16 of Puthuvyppu Village in the name of Sri.P.L.Prakash James, W.As.1602 & 1603/2016. 10 Proprietor of the Hotel, M/s. P.J. Princes Regency, Puthuvyppu, Kochi, under usual terms and conditions of Abkari Act and Foreign Liquor Rules made there under.” (emphasis supplied) A similar order issued in respect of the 1[st] respondent in W.A. No. 1603 of 2016 is as follows: “Attention is invited to the reference cited. Sanction is hereby accorded for the grant of FL-11 licence to Neeleshwar Heritage, Kasargode functioning in building No. KMC-23/12G of Kanhangad Municipality, in the name of Sri Aithaf Hussain Chapri, Managing Director, Chapri Resorts & Hotel (P) Limited, Huda, gurgaon, Haryana under usual terms and conditions to Abkari Act and Foreign Liquor Rules made there under.” (emphasis supplied) 8. A perusal of the above orders, leaves no doubt in our minds that the Government in exercise of its discretion had directed the issue of FL-11 licences to the respective parties, 'under usual terms and conditions of Abkari Act and Foreign Liquor Rules made thereunder.' The reference obviously is to the form prescribed by the Rules and the other W.As.1602 & 1603/2016. 11 formalities regarding payment of the fee stipulated therein. It is pertinent to note that, there was no condition stipulated in the order that the Excise Commissioner should insist on complying with the new Ordinance that had been promulgated by that time or the provisions of any other law. An attempt was made by the Government Pleader to place reliance on the stipulation extracted above to put forward a contention that, the said portion of the relevant Government Order gave a discretion to the Excise Commissioner to insist on complying with the stipulations in the newly promulgated Ordinance also. We are afraid that the said contention cannot be accepted. What has been stipulated is only that compliance with the usual terms and conditions of Abkari Act and Foreign Liquor Rules should be insisted upon. The decision to grant an FL-11 licence having been taken by the Government and an order having been issued on 6.12.2012, the Excise Commissioner had no authority to stipulate any further conditions as has W.As.1602 & 1603/2016. 12 been done in Ext.P3. The duty of the Excise Commissioner therefore was only to comply with the conditions stipulated in the order of the Government dated 6.12.2012. He had no further discretion in the matter after the Government had decided the issue. Therefore, the learned Single Judge was fully justified in allowing the Writ Petitions and setting aside Ext.P3. 9. For the foregoing reasons, we find no grounds to entertain these Writ Appeals or to grant any of the reliefs sought for. 10. As a last submission, learned Government Pleader sought for the grant of a reasonable time to comply with the directions contained in the judgment appealed against. It is submitted that, action in contempt is already pending against the Government and that, unless a reasonable time is granted, the Government would be put in difficulties. W.As.1602 & 1603/2016. 13 11. The request for time is opposed by the counsel for the party respondent. Having heard the respective counsel, we are of the view that some time is necessary to be granted to the State to comply with the directions. Therefore, we grant the appellants time up to 5.9.2016 to comply with the directions in the judgment of the learned Sing Judge. We make it clear that, no petition for extension of the time would be entertained. The Writ Appeals are dismissed subject to the above. K. SURENDRA MOHAN JUDGE MARY JOSEPH JUDGE sb