IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 23131 of 2009(J)
1. HOTEL SKY PALACE, METRO TOWER,
... Petitioner
Vs
1. STATE OF KERALA, REP.BY SECRETARY TO
... Respondent
2. THE COMMISSIONER OF EXCISE,
3. THE DEPUTY COMMISSIONER OF EXCISE
4. THE DEPUTY EXCISE COMMISSIONER,
For Petitioner :SRI.K.JAJU BABU
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :07/10/2010
O R D E R
T.R.RAMACHANDRAN NAIR,J.
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W.P.(C)No.23131 Of 2009
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DATED THIS THE 7th DAY OF OCTOBER, 2010
J U D G M E N T
The petitioner is the licensee of a hotel by name “Hotel Sky
Palace”, Kannur. The proceedings granting star classification is
produced as Exhibit P1. The challenge is against the
cancellation of the licence by the Excise Commissioner as per
Exhibit P8 order.
2. The case of of of the petitioner is that the application
for grant of FL.3 licence dated 5.10.2005 was recommended by
the Circle Inspector of Excise, Kannur finding that the hotel is
situated in an unobjectionable site. The measurement at that
point of time taken from the nearest gate of Government Upper
Primary School, Thavakkara to the hotel showed that the
distance is 205 metres and accordingly the application was
recommended as evident from Exhibit P2 and accordingly he was
granted licence. It was being renewed from time to time and
Exhibit P3 is the order granting renewal upto 31.3.2010.
3. The present proceedings, apparently, started by a
notice Exhibit P4 issued by the Commissioner of Excise. The
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same is based on a report made by the Deputy Commissioner of
Excise, Excise Intelligence and Investigation Bureau, Trivandrum,
wherein it was reported that the distance is only 159 metres.
The petitioner filed an objection as per Exhibit P5. He had also
produced along with Exhibit P5, the report of the Town Surveyor
of the Municipality showing that the distance is 209 metres.
Exhibit P6 is the report by the Deputy Excise Commissioner,
Kannur dated 22.3.2008, wherein the distance shown is 298.8
metres. Exhibit P7 notice shows that the hearing was conducted
on 27.3.2008.
4. It is the case of the petitioner that nearly 1= years
later, Exhibit P8 order has been passed. Mainly it is contended
that the Commissioner has not independently considered the
matter, as he was only acting as per the direction of the
Government, which is evident from the order itself. It is pointed
out that the order reveals that the Government had appointed a
Committee and a report was furnished by the said Committee. A
letter dated 3.8.2009 was issued by the Government also to the
Excise Commissioner, wherein it was observed that the zebra
crossing in the road was made only during 2007 and accordingly
W.P.(C)No.23131/09 -3-
the Government directed to cancel the FL.3 licence granted to the
hotel.
5. Heard the learned Government Pleader appearing for
the respondents.
6. That the hearing of the matter was conducted on
27.3.2008 is evident from Exhibit P7. References 7 and 8 in
Exhibit P8 order are issued on subsequent dates of the hearing
conducted by the Excise Commissioner.
7. It is submitted by the learned counsel for the
petitioner that with regard to the deliberations of the Committee
appointed by the Government, the petitioner was totally kept in
the dark and inspection conducted to take measurement was also
without notice to the petitioner. It is therefore submitted that
the report should not have been relied upon.
8. The order, Exhibit P8, is really issued in the light of the
direction by the Government. Therefore, the Excise
Commissioner was really acting on the dictation of the
Government and he has not taken any independent decision. In
that view of the matter, the order Exhibit P8 will not survive.
Apart from that, if the report of the Joint Committee had to be
W.P.(C)No.23131/09 -4-
relied upon, then the petitioner was entitled to be furnished a
copy of the report and an opportunity to file objections in the
matter. That also was not done.
9. Evidently, the matter reached the Government
because of the communication by the Deputy Commissioner of
Excise, Excise Intelligence and Investigation Bureau, Trivandrum.
Therefore, for all these reasons, Exhibit P8 cannot be supported
and the same is quashed.
10. The learned counsel for the petitioner further relied
upon the principles stated by this Court in State of Kerala v.
Vijaya Kumar (2009(1) KLT 578) to contend that measuring
the distance from gate to gate along footpath and through zebra
crossing in confirmity with traffic rules, is in order.
11. The matter will have to be reconsidered with notice to
the petitioner and after supplying all materials to the petitioner.
Since the Government had appointed a Committee, it is only
proper that the first respondent conduct a hearing of the matter,
with notice to the petitioner as directed above. Therefore, there
will be a direction to the 1st respondent to pass appropriate
orders, after hearing the petitioner, within a period of four
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months from the date of receipt of a copy of this judgment. The
petitioner will be furnished a copy of the report of the Joint
Committee referred to in Exhibit P8 well before the date of
hearing for enabling him to file appropriate objections in the
matter. It is submitted by the learned counsel for the petitioner
that for the present year, the licence has been renewed in the
light of the interim order passed by this Court.
The Writ Petition is disposed of as above. No costs.
T.R.RAMACHANDRAN NAIR, JUDGE.
dsn