HOTEL HILLS PARK Vs. STATE OF KERALA

JUDGEMENT

(1.) Obviously, the question involved in this Writ Petition is no more res Integra. Which is the law to be applied in the matter for grant of licence when law was amended pending consideration of an application for grant of FL-3 licence is the question posed for consideration. It is not in dispute that the said question was settled by a Division Bench of this Court in Kallada Hotels and Resorts v. State of Kerala,2012 2 KerLT 167 holding that the law to be applied in the matter of application for grant of FL-3 licence is the law as on the date on which the Excise Commissioner considers the application for grant of licence and makes recommendation based on the rule in force on that date. I may, now consider the entitlement of the petitioner to the reliefs sought for in this Writ Petition. The petitioner's hotel is a 4 star classified hotel by name 'Hotel Hills Park'. The petitioner submitted Ext. P2 application dated 3.12.2012 for FL-3 licence. It is the contention of the petitioner that all the requisite documents were produced along with Ext. P2 application. Evidently, that position is irrefragable in view of Ext. P6 which reveals the fact that on 7.1.2013 the Excise Commissioner considered Ext. P2 application and recommended the same for grant of FL-3 licence to the petitioner's hotel. Non-feasance on the issue despite the order in Ext. P6 on the part of the first respondent constrained the petitioner to approach this court by filing W.P. (C) No. 2496/2013. The said Writ Petition was disposed of as per Ext. P7 judgment dated 28.1.2013 with a direction to the respondents 1 and 2 therein/respondents 1 and 2 herein, to consider Ext. P2 application submitted by the petitioner, in accordance with law and pass appropriate orders thereon as expeditiously as possible, at any rate, within 8 weeks from the date of receipt of a copy of that judgment. Subsequently, the first respondent passed Ext. P8 order dated 23.3.2013. A perusal of Ext. P8 would reveal that it was passed taking note of Ext. P9 which is an amendment brought to Rule 13(3) of the Foreign Liquor Rules that came in to force from 12.2.2013. It is in these circumstances that the petitioner filed this Writ Petition challenging Ext. P8 order. I have heard the learned senior counsel appearing for the petitioner and also the learned Spl. Government Pleader.

(2.) A counter affidavit has been filed on behalf of the second respondent. It is stated therein that Foreign Liquor licence is being issued based on the existing provisions in the Foreign Liquor Rules, 1974 as well as the policy of the Government and FL-3 licence cannot be claimed as matter of right. The core contention of the respondents is that in view of the existing position of R. 13(3) of the Foreign Liquor Rules no new FL-3 licence could be granted. The amendment to that effect was brought in as part of the policy decision as per G.O.(P) No. 20/2013/TD dated 12.2.2013. It is also stated therein that Ext. P8 order was passed taking into account Ext. P6 but giving due regard to the aforementioned position of law and policy. As noticed hereinbefore, the position of law involved in this matter for grant of licence under the Foreign Liquor Rules has been settled by the Division Bench of this Court in Kallada Hotels and Resorts case . The dictum laid down therein, as mentioned above, was followed in another Division Bench decision in State of Kerala and others v. Babu John,2012 4 KerLT 877 . For the purpose of disposal of this Writ Petition this irrefutable and in disputed position of law has to be borne in mind. The petitioner submitted Ext. P2 application on 3.12.2012 and it is not in dispute. Obviously, the second respondent considered Ext. P2 application and made a recommendation for the grant of licence as per Ext. P6 dated 7.1.2013. Going by the R. 13B(2) of the Foreign Liquor Rules the authority to accord sanction is the Excise Commissioner. He considered the same and passed Ext. P6 and thereafter forwarded the same along with the recommendation for grant of a licence to the Government. Though, there is no provision under R. 13B requiring him to forward such an application for FL-3 licence for getting approval from the Government such a course of action was adopted as it is being followed as a practice. In fact, no provision has been brought to my notice making it mandatory for the Excise Commissioner to forward such application to the Government even after taking a decision in tune with R. 13B(2) of the Foreign Liquor Rules. Subsequently, on being aggrieved by the delay in the matter of its consideration the petitioner had approached this Court by filing W.P.(C) No. 2496/2013 and it was disposed of as per Ext. P7 judgment with a direction to the respondents 1 and 2 therein to consider the same, in accordance with law. The amendment to R. 13(3) admittedly, came into force only with effect from 12.2.2013. A scanning of Ext. P8 order would reveal that essentially it was passed relying on the said amendment to R. 13(3) of the Foreign Liquor Rules which came into force with effect from 12.2.2013. The application was submitted by the petitioner as early as on 3.12.2012 and the grant of which was recommended by the Excise Commissioner on 7.1.2013. The learned senior counsel relies on Ext. P10 judgment also to buttress the contention that the action on the part of the Government in rejecting the application relying on amendment which came into force subsequent to the decision of the Excise Commissioner could not have been assigned as a reason for rejecting the application. With respect to the date of application as also the date on which the second respondent made recommendation for the grant of license there is no dispute. Obviously, the, application and the recommendation by the Excise Commissioner for the grant of licence were made much prior to the amendment brought in as per Ext. P9. When those facts are not in dispute I am of the view that applying the law laid down in Kallada Hotels and Resorts case the decision of the first respondent in Ext. P8 rejecting the application cannot be sustained. It is not in dispute that as on the date of Ext. P6 viz., 7.1.2013 whereby the second respondent recommended for the grant of licence the amendment brought to R. 13(3) of Foreign Liquor Rules was not in force and, in fact, came into force only from 12.2.2013. The learned Government Pleader submitted that the date of recommendation by the Excise Commissioner is irrelevant and, in fact, the position of law obtained on the date on which the matter was taken up for consideration by the Government was the crucial date. In other words, the crucial date is a date on which the Government took the application for consideration. I am afraid the said contention cannot be upheld in the light of the decision of the Decision Bench in Kallada Hotels and Resorts case . In view of the said incontestable position obtained by applying the decision of the Division Bench in Kallada Hotels and Resorts case I am of the view that Ext. P8 is liable to be set aside and accordingly Ext. P8 is set aside. Consequently, it is declared that the petitioner is entitled to FL-3 licence as recommended by the Excise Commissioner in terms of the mandatory procedures under R. 13B(3) of the Foreign Liquor Rules. In the said circumstances this Writ Petition is disposed of with a direction to the respondents 1 and 2 to take up Ext. P2 application made by the petitioner for the grant of FL-3 licence and take a decision based on the declaration made by this judgment within a period of one month from the date of receipt of a copy of this judgment.