KALLADA HOTELS AND RESORTS Vs. STATE OF KERALA REP BY SECRETARY TAXES ADEPARTMENT GOVT SECRETARIAT THIRUVANANTHAPURAM

JUDGEMENT

(1.) This Writ Appeal is filed against the judgment of the learned Single Judge directing the Excise Commissioner and the Government to consider appellant's application for grant of FL3 licence for three star Hotel but with a rider that the application should be considered taking note of the change of law which is nothing but a provision introduced by the Government on 09/12/2011 dis-entitling three star hotels from getting FL3 licence. We have heard Senior Counsel Sri. C.C. Thomas appearing for the appellant and Special Government Pleader appearing for respondents. While the appellant's case is that application for FL3 licence was submitted vide Ext. P2 dated 29/07/2010 and in spite of favourable recommendations made by the Joint Excise Commissioner the Excise Commissioner has not so far granted licence. The specific case of the appellant is that only on account of a wrong report from lower authorities the application was initially rejected by the Government vide Ext. P6 on 25/08/2011 much before the policy was amended on the misunderstanding that the hotel is within the prohibited distance from a temple as stated by the Deputy Commissioner and Joint Excise Commissioner in their first reports. However, the actual distance on re checking under the orders of the Excise Commissioner was found to be 206 mtrs. by the Deputy Commissioner of Excise and 218 mtrs. by the Village Officer which are produced as Exts. P9 and P10 respectively. In other words, contention raised by the appellant is that if at least Ext. P9 dated 22/09/2011 which was forwarded by the Joint Excise Commissioner was acted upon, certainly much before the date of change of policy on 09/12/2011, the appellant would have got the licence. Appellant's claim therefore is that the mistake of the respondent should not lead to the denial of FL3 licence which is otherwise entitle to the appellant prior to the change of policy effected on 09/12/2011.

(2.) Special Government Pleader, on the other hand relied on the decision of the Hon'ble Supreme Court in State of Kerala v. B. Six Holiday Resorts (P) Ltd. and Others, 2010 5 SCC 186 where the Hon'ble Supreme Court held that an application for FL3 licence has to be considered with reference to the rules/law prevailing or in force on the date of consideration of application by Excise authorities and not with reference to the law as on the date of the application.

(3.) After hearing both sides and after going through the judgment of the Hon'ble Supreme Court, we are of the view that the Hon'ble Supreme Court's judgment does not bar the appellant from getting licence because appellant does not have a claim that the policy or rule applicable should be with reference to the date of application. On the other hand, application-Ext. P2 itself was dated 29/07/2010 and the same was kept pending raising various objections. Appellant was made to discharge arrears due from late father of the partner of the appellant's firm as is evident from Ext. P8 dated 09/05/2011. Further Ext. P6 dated 25/08/2011 is issued by the Government declining licence stating that Deputy Commissioner and Joint Commissioner did not recommend appellant's case on account of the allegation that the Hotel is located within the prohibited distance from a temple and treating appellant's hotel as an objectionable site. However, it is revealed from Exts. P8 and P9 which are reports submitted by the Joint Excise Commissioner and the Deputy Excise Commissioner respectively stating that their original reports were wrong as the Temple is situated beyond the prohibited distance from the appellant's hotel. It is seen from the statement furnished by the Deputy Commissioner of Excise, Thrissur that all papers were forwarded with revised recommendations from the Joint Commissioner on 11/10/2011 which if acted upon would have led to issuance of licence to the appellant before the policy change that occurred on 09/12/2011.