IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 544 of 2008(E)
1. STATE OF KERALA, REPRESENTED BY ITS
... Petitioner
2. THE EXCISE COMMISSIONER,
3. ASSISTANT EXCISE COMMISSIONER,
Vs
1. V.S.RAVEENDRAN PILLAI, RAJADHANI
... Respondent
For Petitioner :ADVOCATE GENERAL
For Respondent :SRI.A.SUDHI VASUDEVAN
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.N.RAVINDRAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :03/03/2010
O R D E R
C.R.
K.BALAKRISHNAN NAIR, P.N.RAVINDRAN &
S.S.SATHEESACHANDRAN, JJ.
----------------------------------------
W.A.No.544 of 2008
----------------------------------------
Dated 3rd March, 2010
JUDGMENT
Balakrishnan Nair, J.
The respondents in the Writ Petition are the appellants. The
respondent herein was the Writ Petitioner. The point that arises for
decision in this appeal is whether the application for FL-3 licence has to be
considered with reference to the law prevailing on the date of submission
of the application or on the date of consideration/disposal of the
application. The matter happened to be referred to the Full Bench by a
Division Bench of this Court on prima facie noticing that the decision of the
Division Bench of this Court in State of Kerala v. Raghavan (2009 (1)
KLT 625) cannot stand with the decision of the Apex Court in Kuldeep
Singh v. Govt. of NCT of Delhi (AIR 2006 SC 2652). Before dealing with
the above question, we will briefly state the facts necessary for the
disposal of the case.
2. The respondent submitted an application for FL-3 licence on
30.9.2001. At the relevant time, Rule 13(2) of the Foreign Liquor Rules,
as amended by G.O.(P)No.53/97/TD dated 31.3.1997, was in force. As
per the said amendment, hotels with three star and higher classifications,
Heritage and Resort Hotels as well as classified restaurants were entitled
to get the FL-3 licence. The respondent had already applied for Restaurant
W.A.No.544/2008 2
Approval Order to the competent authority on 8.2.2001. By Ext.P2
order, the competent authority granted Restaurant Approval Order on
15.7.2002. According to the respondent, the officials of the State of
Kerala tried to influence the competent authority and delayed the
issuance of the Restaurant Approval Order. Therefore, he approached
this Court seeking appropriate reliefs. The said Writ Petition was
disposed of by Ext.P2(a) judgment dated 20.6.2006, directing the
competent authority to grant restaurant approval with retrospective
effect, that is, with effect from the date of completion of three months
from the date of submission of the application. As a result, the
competent authority issued Ext.P6 order dated 5.7.2006, modifying
the date of effect of Ext.P2 restaurant approval order as 8.5.2001
instead of 15.7.2002.
3. Since the respondent was not able to produce the
Restaurant Approval Order, Ext.P1 application was rejected, at the
threshold by the Assistant Excise Commissioner, without processing it
by making an endorsement on it, on 30.9.2001 itself.
4. Later, the respondent filed Ext.P3 representation along
with Ext.P2 on 28.6.2005, requesting the Assistant Excise
Commissioner to process his application and forward the same to the
Excise Commissioner. It was followed by another representation dated
28.6.2006. That application was rejected by the Assistant Excise
W.A.No.544/2008 3
Commissioner by Ext.P4 order dated 28.6.2006. Since the law has
changed in the meantime, it was not possible to grant licence for a
classified/approved restaurant, it was mentioned in Ext.P4.
Challenging Ext.P4 and seeking consequential reliefs the Writ Petition
was filed.
5. It was during the pendency of the Writ Petition that
Ext.P6 order giving retrospective effect to Ext.P2 from 8.5.2001 was
passed. Thereupon, the respondent filed I.A.No.9791 of 2006, seeking
to amend the Writ Petition and also incorporating the challenge against
the endorsement made in Ext.P1. It was also prayed to consider
Ext.P1, applying the Rule/Abkari Policy prevalent on the date of Ext.P1.
The learned Single Judge disposed of the Writ Petition, by the
judgment under appeal on 8.12.2006, directing to consider the
application of the respondent with reference to the qualification
required as on the date of application. Feeling aggrieved by the said
judgment, the present appeal is preferred by the respondents in the
Writ Petition.
6. We heard Sri.C.P.Sudhakara Prasad, learned Advocate
General for the appellants and Sri.A.Sudhi Vasudevan, learned
counsel for the respondent/writ petitioner. The learned Advocate
General submitted that the law that could be applied to an application
is the one prevailing on the date of consideration/disposal of the same.
W.A.No.544/2008 4
The respondent, who submitted the application in 2001 cannot claim
that his application should be dealt with now in accordance with the
rules in force in 2001, which had already been repealed. In support of
the submission, the learned Advocate General relied on the decisions
of the Apex Court in Kuldeep Singh v. Govt. of NCT of Delhi (AIR
2006 SC 2652), Chief of Marketing (Marketing Division), Coal
India Ltd. v. Mewat Chemicals & Tiny SSI Coal Pulverising Unit
((2004) 4 SCC 146), S.B. International Ltd. and others v.
Assistant Director General of Foreign Trade and others ((1996
( 2 SCC 439). The learned Advocate General also relied on the
decisions of this Court in Radhamani v. State of Kerala (2005 (3)
KLT 86), State of Kerala v. Raghavan (2009 (2) KLT 625) and
State of Kerala v. K.Swamidas (ILR 2009 (4) Ker. 484). The
learned Advocate General also submitted that the decisions of this
Court in B.6 Holiday Resorts Pvt. Ltd. v. State of Kerala (2003 (1)
KLT 984) and State of Kerala v. Raghavan (2009 (1) KLT 625)
which take a different view is no longer good law, in view of the
decision of the Apex Court in Kuldeep Singh’s case (supra). The
learned Advocate General also submitted that, Civil Appeal Nos.983 to
990 of 2003 filed by the State against the decision in B.6 Holiday
Resorts Pvt. Ltd. v. State of Kerala (2003 (1) KLT 984) and
connected cases have been allowed by the Apex Court on 13.1.2010.
W.A.No.544/2008 5
The contention of the State that the law applicable should be the one
on the date of consideration/disposal of the application has been
upheld by the Apex Court.
7. Sri.A.Sudhi Vasudevan, learned counsel for the
respondent, did not dispute the submission of the learned Advocate
General regarding the decision of the Apex Court, though certified copy
of the decision is not available. But, the learned counsel submitted
that the respondent did not get the Restaurant Approval Order in time,
though he submitted the application for the same as early as on
8.2.2001, because of the mala fide actions of the officials of the State
Government. According to the learned counsel, one of the officials of
the State Government wrote to the Indiatourism – Chennai not to take
up the application of the respondent and that was the reason why the
learned Single Judge, by Ext.P2(a) judgment, ordered to grant
Restaurant Approval Order with retrospective effect. Pursuant to the
said judgment, a copy of which is produced as Ext.P2(a), the
respondent got Ext.P6 Restaurant Approval Order with retrospective
effect from 8.5.2001, which is anterior to the date of submission of
Ext.P1 application. Therefore, the case of the respondent should be
dealt with separately having regard to the special facts of this case, it
is pointed out.
W.A.No.544/2008 6
8. We considered the rival submissions made at the bar
and also perused the materials on record. The main point referred for
consideration of the Full Bench, it is common ground, is covered by the
judgment of the Apex Court in Civil Appeal Nos.983 to 990 of 2003
dated 13.1.2010, reversing the judgment in B.6 Holiday Resorts
Pvt. Ltd. v. State of Kerala (2003 (1) KLT 984). So, the application
for FL-3 licence has to be dealt with, with reference to the law
prevailing on the date of consideration/disposal of it.
9. We are told that the decision of the Division Bench of
this Court in State of Kerala v. Raghavan (2009 (1) KLT 625) has
also been reversed by the Apex Court. Therefore, it is unnecessary for
us to say that it does not lay down the correct legal position.
10. The next point to be considered is whether any
direction could be given in favour of the respondent, on equitable
grounds for the reason that there was delay from the competent
authority to consider and grant him the Restaurant Approval Order.
Going by the facts of the case, we notice that the respondent produced
the Restaurant Approval Order, before the competent authority, only
along with Ext.P3 representation dated 28.6.2005. By the time, the
law has already changed with effect from 1.4.2002. The amendment
was introduced as per G.O.(P)No.22/2002/TD dated 30.3.2002 with
effect from 1.4.2002. As per that amendment, only hotels conforming
W.A.No.544/2008 7
to the standards of three stars and higher classification were eligible to
get FL-3 licence. In other words, a restaurant covered by the
Restaurant Approval Order was not eligible for grant of FL-3 licence.
We also notice that the endorsement in Ext.P1 made on 30.9.2001 was
challenged only after five years in 2006. In Kuldeep Singh’s case
(supra), we notice that Kuldeep Singh’s application for F-52 licence
was wrongly rejected and later, on the direction of the appellate
authority, it was reconsidered. By the time, the matter was taken up
for reconsideration, the policy was changed and the Government
decided to discontinue the issuance of the licence. If his application
was rightly considered at the first instance, he might have got it. Still,
the Apex Court did not uphold the contentions of Kuldeep Singh. We
think, the said decision will apply squarely to the facts of this case
also. In this case, the respondent’s grievance is against the competent
authority, the Indiatourism Chennai, in issuing the Restaurant Approval
Order belatedly and as far as the Excise Officers are concerned, they
could not have dealt with his application submitted on 30.9.2001, in
the absence of a Restaurant Approval Order. So, it cannot be said that
the endorsement on Ext.P1 was wrongly made. Even assuming that it
was wrongly made, still, in view of the Apex Court’s decision in
Kuldeep Singh’s case (supra), the respondent will not be entitled to
any relief.
W.A.No.544/2008 8
11. The respondent submitted that the licence was granted
to him at the fag end of the financial year 2008-2009 and collected
Rs.22 lakhs from him and he was not granted licence from 1.4.2009
to 31.3.2010. In view of the above facts, the respondent prayed
for granting certain equitable reliefs. Such claims not being the
subject matter of this Appeal, we are not dealing with them. We leave
them open.
In the result, the Writ Appeal is allowed. The judgment
under appeal is reversed and the Writ Petition is dismissed.
K.BALAKRISHNAN NAIR
Judge
P.N.RAVINDRAN
Judge
S.S.SATHEESACHANDRAN
Judge
TKS