HOTEL MALIKA RESIDENCY Vs. STATE OF KERALA

JUDGEMENT

(1.) A common question arises in these Writ Petitions. The parties are also the same. They were therefore heard together and are being disposed of by this common judgment. W.P.(C) No. 6494 of 2012 is treated as the main case and unless otherwise mentioned, the parties and documents referred to, are with reference to the said Writ Petition. The brief facts of the case are as follows: "M/s Hotel Malika Residency", the petitioner in W.P.(C) No. 6494 of 2012 is a partnership firm. It is running a hotel at Ettumanoor under the name and style "Hotel Malika Residency". Ext.P-1 licence in form FL-3 was issued to the Managing Partner of the petitioner firm under rule 13(3) of the Foreign Liquor Rules, 1972 (hereinafter referred to as "the rules" for short) on 8-8-2006. The licence which was initially valid till 31-3-2007, was being periodically renewed and the last of the renewals was valid till 31-3-2012. After the FL-3 licence was renewed for the year 2010-2011, the partners of the petitioner firm transferred the land and the building where "Hotel Malika Residency" is situate, to respondents 5 to 8, who are partners of yet another firm M/s Bee Bees Palace, as per Ext. P-2 sale deed dated 13-4-2010, that was registered on the same day. The petitioner states that on the very same day, the purchaser firm M/s Bee Bees Palace, leased back the property conveyed to it as per Ext. P-2 sale deed, to the petitioner firm as per Ext. P-3 lease deed dated 13-4-2010 for a period of five years, with effect from 13-4-2010 with the obligation to pay the sum of Rs. 2,50,000 per mensem as rent. It is stipulated therein that the petitioner firm will be at liberty to use the entire hotel building and the premises and can obtain hotel, lodging licence, etc., for running the bar attached hotel named "Hotel Malika Residency". Though the fifth respondent later raised a dispute and also filed a complaint in the Court of the Judicial Magistrate of the First Class, Ettumanoor alleging that Ext. P-3 is a forgery and the court below forwarded the complaint to the Ettumanoor Police for investigation under Section 156(3) of the Code of Criminal Procedure and the Ettumanoor Police registered Crime No. 1263 of 2011 on 28-11-2011, it is not in dispute that Ext.P-1 licence was renewed for the year 2011-2012 also, without any objection being raised to the renewal either by the department or by respondents 5 to 8. When Ext.P-1 licence was issued for the first time to the petitioner firm, the hotel had a three star classification which was required for the grant of a fresh FL-3 licence at the relevant time. Rule 13(3) of the rules was amended with effect from 9-12-2011 and thereafter, an FL-3 licence can be issued only to hotels which have obtained four star, five star, five star deluxe, heritage, heritage grant or heritage classic, classification from the Ministry of Tourism of the Government of India.

(2.) Long after Ext.P-2 sale deed was executed, the fifth respondent filed Ext.P-5 complaint dated 2-12-2011 produced in W.P.(C) No. 32515 of 2011 before the Commissioner of Excise, Kerala, the Deputy Commissioner of Excise, Kottayam and the Circle Inspector of Excise, Ettumanoor alleging that Ext.P-3 lease deed is a forgery and that he has objection to the FL-3 licence in the name of the petitioner firm being renewed. The fifth respondent thereafter filed W.P.(C) No. 32515 of 2011 in this Court for an order directing the Commissioner of Excise, Thiruvananthapuram and the Deputy Excise Commissioner, Kottayam to enquire into Ext.P-5 complaint filed by him and to take action to cancel or suspend the licence issued to the Managing Partner of the petitioner firm. He also sought an order directing them not to permit the Managing Partner of the petitioner firm to run the bar attached hotel on the strength of Ext.P-1 licence. The Managing Partner of the petitioner firm thereafter moved the third respondent for renewal of Ext.P-1 licence for the year 2012-2013. The third respondent then took the stand that as the petitioner firm had transferred the hotel building and the appurtenant land to the partnership firm of which respondents 5 to 8 are partners, without the previous sanction of the Excise Commissioner, he is not entitled to seek a renewal of the licence in view of the stipulations contained in Rule 19 of the rules. W.P.(C) No. 6494 of 2012 was thereupon filed on 14-3-2012 seeking a declaration that the petitioner firm is entitled to have Ext.P-1 licence renewed in terms of the policy of the Government and a direction to the official respondents to renew Ext.P-1 licence for the year 2012-13 and in the subsequent years.

(3.) When W.P.(C) No. 6494 of 2012 came up for hearing on 29-3-2012, after notice to the respondents, a learned Single Judge of this Court after hearing both sides passed the following interim order: