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2002 DIGILAW 184 (KER)

K. Janardhanan v. State of Kerala

2002-03-15

K.A.ABDUL GAFOOR

body2002
Judgment :- The petitioner did have FL-3 licence issued under Ruler 13(3)of the Foreign Liquor Rules in respect of his hotel. That license was current until 31.3.1990. When he was constrained to close his hotel because of labour disputes. he surrendered the premises where the hotel was housed. thereafter the licence was not renewed. The petitioner thereafter pursued his effort to get another premises for the conduct of the hotel. He also therefore thought of shifting his FL-3 shop to his new hotel in terms of Rule 24 of the Foreign Liquor Rules. He made an application in that regard. That was finally rejected as per Ext. P9. It is impugned in this O.P. 2. It is submitted by the counsel, impugning the said order, that the provisions that contained in rule 13 as well as Rule 14 enables renewal of a defunct licence on remittance of the appropriate fee as was liable to be remitted on timely renewal. Therefore an existing license could be renewed and the commissioner has no option but to accord approval to the renewal application except so far as it does have any disqualification as mentioned in Rule 13, 13A and 14. Such disqualification is not applicable to the petitioner or to his new premises. Therefore the licence shall be renewed and it shall be allowed to be shifted to the new premises in terms of Rule 24 of the Foreign liquor Rules. 3. A learned single judge has earlier construing Rule 24 had held that a defunct licence can be renewed and allowed to be shifted, the counsel submits. An unreported Division Bench decision in O.P. 19394/97 also will indicate that the shifting in such circumstances was permissible. Therefore the impugned order Ext. P9 is totally unjustified in so far as it does not grant renewal of the licence and its shifting. The Commissioner in Ext. P9 took the view that; "the licence has been defunct from 1.4.1990. Excise Commissioner has examined the old records. asst. Excise Commissioner, Kasargod in her letter KS-6/2485/91 dated 22.6.1991 had reported that the FL-3 licence was surrendered by Sri. Janardhanan and accordingly as per Boards order no XA3-11096/91 dated 26.6.1991 the licence was cancelled. The version of Sri. K. Janardhanan that he was not aware of the cancellation of the licence is not convincing. This is only an attempt to get an FL3 licence through the back door. Janardhanan and accordingly as per Boards order no XA3-11096/91 dated 26.6.1991 the licence was cancelled. The version of Sri. K. Janardhanan that he was not aware of the cancellation of the licence is not convincing. This is only an attempt to get an FL3 licence through the back door. Even accepting the decision in Jayadevan Vs Varghese (1999(1) KLT 351) that a defunct licence cannot be cancelled, there is no case for renewal as per the judgment dated 26.6.2001 of Honorable Division Bench of High Court of Kerala in W.A. 2990/00 in O.P.No 30006/00. The petition is rejected". Thus is effect the view taken by the commissioner is that a defunct licence cannot be allowed to be renewed and shifted. This view is not correct the petitioner submits, going by the decisions relied on as well as the statutory provisions in Rule 13 and the provision to Rule 14 and Rule 24 of the Foreign Liquor Rules. 4. As Rule 13 as at present stands, the petitioner cannot get a new licence. Because of the amendment issued as per SRO 124/2002 no new licence shall be granted after substitution of the proviso to Rule 13 (3) and deletion of Proviso to Rule 14. So the only way out for the petitioner, to conduct bar hotel, is to get the defunct licence. that he had until 31.3.1990 in one particular premises, renewed and get it shifted in terms of Rule 24 to another premises which he has now indicated in his application. It is that application which has been rejected as per Ext. P9. 5. The issue raised in this Original Petition is now squarely covered by a very recent Division Bench decision of this Court reported in Abraham V. Assistant Commissioner (2002 (1) KLT 607) on both the aspects of renewal as well as shifting. 6. On the first aspect of renewal relying on an earlier Division Bench decision, it was held in Abraham's case as follows; "Licence to trade in liquor is merely a privilege given to the licensee and on the expiry of the licence, no right survives in the licensee. If the licence has not been renewed. 6. On the first aspect of renewal relying on an earlier Division Bench decision, it was held in Abraham's case as follows; "Licence to trade in liquor is merely a privilege given to the licensee and on the expiry of the licence, no right survives in the licensee. If the licence has not been renewed. The Division bench was of the view that renewal of licence stands practically on the same footing as grant of fresh licence and that, in a case where the licence had become defunct or had not been renewed for a long period of time, the claimant cannot have a right to renewal relying on the proviso to R 14 of the Rules by contending that, however long the period of disruption may be, the authority is obliged to renew the licence. He respectfully agree with this view". Admittedly the petitioner's licence subsisted only upto 31.3.1990. More than a decade has elapsed. One cannot as a matter of right get such a licence renewed at this distance of time, in the light of the said pronouncement. 7. The second aspect of shifting is also covered by Abraham's case. The Division bench held as follows: "The next contention urged by the learned counsel is that the application dated 25.12.1995. Ext. P2. had twin prayers. First there was a prayer for renewal of licence and secondly, there was a prayer for permission to shift the bar from one location to another within the same Corporation limits. Learned consel contended that, even if the first prayer cannot be granted there is no reason for not granting the second prayer under R 24 of the Rules. In our view, this contention is misconceived. R 24 of the Rules is intended to operate only where the licence exists. R 24 merely empower the Excise Commissioner to permit or order the transfer of any shop from one locality to another. Within the town or taluks as the case may be or to order any shop to be closed in the interests of public peace or morality or on grounds of expediency.” The Division Bench further held that; "The conditions stipulated in R 24 can only apply for a running shop with a valid licence. As far as the appellant is concerned, there was no shop at all and the licence had expired long ago on 31.3.1988. As far as the appellant is concerned, there was no shop at all and the licence had expired long ago on 31.3.1988. Unless the appellant succeeds in getting the licence renewed there is no question of applying R 24 and permitting the shifting of the shop. On that ground also, the authorities were right in rejecting the application." Thus the petitioner cannot seek shifting of a licence which does not exist. 8. The only factual difference in this case as compared to Abraham's case is that the petitioner's licence expired only on 31.3.1990. In every other respects facts are similar. Even if the prayer for renewal is independently considered without shifting, that also cannot be granted because the renewal applied for is after more than ten years of its expiry and is not in respect of the premises in which the defunct licence had been granted. On that ground the renewal application also could not have been granted. When there is no existing licence, there arises no shifting. 9. The learned counsel has brought to my notice another Division Bench decision in O.P. 19394 /1997 wherein the indications are to the effect that a defunct licence also can be shifted. I had occasion to consider this direction in my judgment in O.P. 6159/2002 relating to a case having the similar facts. The facts frame of the case leading to O.P. 19394/97 was cancellation, renewal and shifting of defunct licence once granted. The issue raised in the original Petition is whether a defunct licence can be renewed after a period of three years and whether the Rule fixed a period of limitation. The Division Bench answered the question that there is no such limitation. The issue considered in para 34 of the judgment is with regard to the shifting of the shop from one Taluk to another or from the limits of one local authority to another local authority that Division Bench did not advert to the real import of Rule 24. Whether a licence which does not really exist can be shifted or not. That issue is covered by the decision in Abraham's case (supra) which had approved another Division Bench decision in W.A. No 2990/2000. Which had been relies on by the Commissioner in the impugned order. Therefore there is nothing illegal in Ext. P9. O.P. fails and is dismissed.