Govt Can't Deny Beer Parlour Licence Citing Liquor Policy: HC [Read Judgment]
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
THURSDAY, THE 17TH DAY OF NOVEMBER 2016/26TH KARTHIKA, 1938
WP(C).No. 36030 of 2016 (C)
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PETITIONER(S):
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HOTEL OLIVE NEST PVT. LTD
OPPOSITE INFO PARK,
SMAR CITY, KAKKNAD, ERNAKULAM DISTRICT,
REPRESENTED BY ITS DIRECTOR DR.MATHEW THOMAS.
BY ADVS.SRI.GEORGE POONTHOTTAM
SRI.SUNIL JACOB
RESPONDENT(S):
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1. STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM 695 -001
2. THE COMMISSIONER OF EXCISE
COMMISSIONERATE OF EXCISE,
THIRUVANANTHAPURAM 695 001.
3. THE DEPUTY COMMISSIONER OF EXCISE
EXCISE DIVISION, ERNAKULAM.
R1 TO R3 BY SENIOR GOVERNMENT PLEADER SMT.C.S.SHEEJA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 17-11-2016, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
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WP(C).No. 36030 of 2016 (C)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1: TRUE COY OF THE CLASSIFICATION ORDER DATED 29.5.2015
ISSUED BY THE COMPETENT OFFICER IN GOVERNMENT OF
INDIA, MINISTRY OF TOURISM
P2: TRUE COPY OF THE APPLICATION OF THE PETITIONER
DATED 24.4.2015
P3: TRUE COPY OF THE APPLICATION FOR FL-11 LICENSE
DATED 10.2.2016
P4: TRUE COPY OF THE COMMUNICATION NO.E5-1591/16
DATED 2.3.2016
P5: TRUE COPY OF THE APPLICATION FOR ISSUANCE OF FL-11
LICENSE DATED 1.4.2016
P6: TRUE COPY OF THE JUDGMENT DATED 8.4.2016 IN WPC
NO.13292/2016 PASSED BY THE 2ND RESPONDENT
P7: TRUE COPY OF THE GOVERNMENT ORDER
NO.741/2016/EX.DEPT DATED 26.9.2016
P8: TRUE COPY OF THE ORDER NO.XC6 -E- 5335/2016 DATED
22.9.2016 PASSED BY THE 2ND RESPONDENT
P9: TRUE COPY OF THE GOVERNMENT ORDER NO.GO(MS)
NO.92/2016/EX.DEPT DATED 1.10.2016
RESPONDENT(S)' EXHIBITS : NIL.
//TRUE COPY//
P.A. TO JUDGE
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P.B. SURESH KUMAR, J.
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W.P.(C) No.36030 of 2016
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Dated this the 17th day of November, 2016
JUDGMENT
The petitioner is a Four Star classified hotel. The
petitioner has applied for licence in form FL-11 of the
Foreign Liquor Rules ('the Rules') for conducting a beer
and wine parlour in the hotel. Since the application
preferred by the petitioner has not been considered, the
petitioner approached this Court and as per Ext.P6
judgment, this Court directed the Government to take a
final decision on the application. Pursuant to Ext.P6
judgment, the Government considered the application of
the petitioner and rejected the same as per Ext.P7 order.
Ext.P7 order is under challenge in this writ petition.
2. A statement has been filed on behalf of the
third respondent supporting Ext.P7 order.
W.P.(C) No.36030 of 2016 -2-
3. Heard the learned counsel for the petitioner
as also the learned Government Pleader.
4. A perusal of Ext.P7 order indicates that the
application preferred by the petitioner has been rejected
by the Government on the ground that the grant of the
licence sought for by the petitioner is against the Abkari
Policy of the Government notified as per G.O.(MS)
No.139/14/TD dated 22.08.2014. In W.P.(C) No.33378 of
2016, in an exactly identical case, after referring to Rule
13 (11) of the Rules, it was held by this Court that the
rejection of the application of the petitioner therein on the
basis of the Abkari Policy of the Government for the year
2014-15 was illegal. The relevant portion of the judgment
in the said case reads thus:
"When the statutory rules confer right on the petitioner to apply for
and obtain licence in Form FL-11, the same cannot be denied based
on the policy of the Government, for, the policy cannot prevail over
the statutory rules. Further, the policy relied on by the respondents
is the Abkari Policy of the Government for the year 2014-15 notified
on 22.8.2014. The Rules have been amended pursuant to the said
policy immediately thereafter by S.R.O.No.520 of 2014 dated
27.8.2014. The said notification amending the Rules pursuant to
the policy indicates beyond doubt that the said policy has nothing to
do with the beer and wine parlour licences. The policy referred to
W.P.(C) No.36030 of 2016 -3-
above was intended only to limit licence in Form FL-3 to hotels
which have obtained Five Star and Five Star Deluxe classifications
from the Ministry of Tourism, Government of India. Consequently,
pursuant to the said policy, amendment was introduced only to
Rule 13(3) dealing with FL-3 licences. There has been no
amendment at all to Rule 13(11) dealing with beer and wine parlour
licences pursuant to the said policy. Ext.P6 order of the
Government, in the circumstances, is liable to be quashed and I do
so."
In the light of the decision of this Court referred to above,
Ext.P7 order is quashed and the Government is directed to
consider the application submitted by the petitioner afresh,
in accordance with the Rules, untrammelled by the
Government Order dated 22.08.2014. This shall be done
within two weeks from today.
The writ petition is allowed as above.
Sd/-
P.B. SURESH KUMAR
JUDGE
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