K K BUILDERS Vs. STATE OF KERALA

JUDGEMENT

(1.) This Writ Petition is filed seeking to quash Ext. P-12 order passed by the 2nd respondent-Excise Commissioner, for a declaration that the petitioner-firm is entitled to get FL-3 licence/bar licence as per R. l3(3) of the Foreign Liquor Rules as per Ext. P-2 application and also fora direction commanding respondents 1 and 2 to issue FL-3 licence to the petitioner-firm as per Ext. P-2 application.

(2.) It is averred in the Writ Petition that as per BOT agreement executed between the petitioner-firm and the Kannur Municipality, the firm constructed Central Bus Terminal Complex, Thavakkara. Kannur and that as per the agreement, the firm is the concessionaire and entitled to operate interalia commercial space in the complex and to charge, collect and retain revenues from fees collected for use of the commercial space by licensees. It is said that the commercial space in the complex was completed and started functioning. Thus the structure includes a guest house building shown in the plan attached to the agreement as 'hotel block'. As per the aforesaid agreement, the petitioner- firm is permitted to use the guest house (hotel block). Petitioner-firm is at present running a three star hotel by name 'Broad Bean'. Hotel is classified as a three star hotel by the Indian Tourism Department for a period of five years with effect from 30/11/2009. Ext. P-1 is the copy of the star classification order. As per the BOT agreement, the petitioner- firm is entitled to occupy the hotel building and rest of the commercial complex for a period of 29 years and 3 months. The agreement was executed on 27.10.2004. It is said that the entire commercial complex is let out to third persons on lease arrangement.

(3.) After obtaining Ext. P-l order from the India Tourism Department, the petitioner submitted Ext. P-2 application on 7.12.2009 for issuance of bar licence under Rule 13(3) of the Foreign Liquor Rules to the Excise Commissioner through proper channel. The Deputy Commissioner of Excise, Kannur, by letter No. Cl-10311/09 dated 16.12.2009 recommended that FL-3 licence may be granted to Hotel Broad Bean, Kannur. The recommendation was made, after conducting an enquiry, verifying the documents and after considering the eligibility of the petitioner- firm to obtain licence. Subsequently, the Deputy Commissioner of Excise also conducted site inspection and verified the records. By Ext. P-3 dated 16.12.2009 the Deputy Commissioner of Excise recommended the application for issuance of FL-3 licence. Ext. P-3 communication issued by the Deputy Commissioner of Excise addressed to the Joint Excise Commissioner would show that every aspect of the matter was examined before making recommendation and also referred the relevant clauses in the BOT agreement. It is reported that Hotel Broad Bean (Guest House) is functioning in a building of single structure having four stories, that India Tourism Department had given 3 star rating to the hotel for 5 years on 3.12.09 and referring to para 28 of the tripartite agreement it is stated that the agreement provides provision for concessionaire to indulge in the sale of liquor in the hotel complex, for which valid licence on behalf of the petitioner was issued by the authority concerned. Copy of the tripartite agreement was also enclosed along with Ext. P-3. It is also reported that the petitioner obtained non-liability certificate from the authorities concerned. Documents obtained from the said authorities are also enclosed. It is also reported that no objectionable site situates within the objectionable distance from the hotel. It is further reported that the granting of licence will justify the local needs and it will not adversely affect the revenue of the State. The Officer is convinced that the privilege will not be misused by the licensee or by his partners, if granted. It is reported that neither the licensee nor his partners are convicted of any cognizable offence, that the applicants are not Abkari defaulters and that the applicant is financially sound and capable of discharging his responsibilities. The officer further reported that the very same petitioner possesses two licences in the same district. The Joint Commissioner of Excise conducted a site inspection, made necessary enquiries and convinced that the petitioner is eligible to hold FL-3 licence. The Joint Commissioner fully agreed in principle and the accepted reasons stated in Ext. P-3 communication for recommending the grant of FL-3 licence. Therefore, by Ext. P-4 communication addressed to the Excise Commissioner, the Joint Commissioner recommended for grant of licence to the petitioner.