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2006 DIGILAW 204 (KER)

Sijomon Chacko v. The State of Kerala

2006-03-22

J.B.KOSHY, V.K.BALI

body2006
Judgment :- J.B. Koshy, J. This writ petition is filed as a public interest litigation questioning the grant of Ext., P2 bar licence (FL3) to the fourth respondent’s hotel. Fourth respondent filed an application for grant of licence on 25th July, 1992. No orders were passed for long time and finally an order was passed rejecting his application for FL3 licence on 6.2.1993 on the basis of ‘policy decision of the Government’. Fourth respondent challenged the same before statutory forms. On 3rd March, 2000 Government rejected his application. He approached this court by filing O.P.No.14329 of 2000. By judgment dated March 9, 2004 (Ext.R4(f)), this court directed the Government to reconsider the application in the light of the various contention urged by the petitioner and also keeping in view the judgment of this court in B. Six Holiday Resorts (P) Ltd. V. State of Kerala (2002 (2) KLJ 941) and all other facts and circumstances. But the Government stuck to its earlier stand and rejected the application for licence yet again. Therefore, he approached this court again by filing W.P.(C) No.15642 of 2005 contending that at the time of his application, as per the policy and rules in force two star hotels were entitled to get a licence. But, his application cannot be rejected due to subsequent change in policy and hence relied on the decision of this in B. Six Holiday Resorts case and also pointed out that on similar directions from this court, licences were granted to several hotels. The above writ petition was disposed of Ext.R4(j) with the following directions: “…Therefore, Exts.P6 and P10 are set aside. The Government shall reconsider the request made by the petitioner for grant of FL3 licence afresh and strictly in accordance with law, keeping in view the judgment of this court in B.Six Holiday Resorts Case and also in W.P. (c) No.14329/2000. Appropriate orders shall be passed as expeditiously as possible, at any rate within three months from the date of receipt of a copy of this judgment.” On the basis of this judgment the matter was reconsidered and licence was granted by Ext.P2 dated 7.1.2006. Appropriate orders shall be passed as expeditiously as possible, at any rate within three months from the date of receipt of a copy of this judgment.” On the basis of this judgment the matter was reconsidered and licence was granted by Ext.P2 dated 7.1.2006. In the meantime, the petitioner filed a public interest litigation pointing out that in Radhamani v. State of Kerala (2005 (3) KLT 86) it was held that earlier decision in B.Six Holiday Resorts case (supra) is not one of universal application and application can be disposed of as per the policy when it was considered. Despite that, Ext.P2 licence was granted. Hence, this petition was filed. 2. Learned counsel for the fourth respondent first of all argued that the present litigation is not a public interest litigation but a private interest litigation motivated by spite against fourth respondent and motivated by rival licence holder. Petitioner is residing at Iddukki as per the affidavit filed in support of the writ petition. His job is not mentioned in the affidavit or in the petition. But, in the counter affidavit it is stated as follows: “6. Petitioner studied hotel management course and was employed in Crystal Palace Hotel till recently. Crystal Palace hotel is situate by the side of Banerji Road. He is presently employed in Kadaram Bar Hotel, Lal Tourist Home, Thampanoor, Thiruvanathapuram. He says that he belongs to Iddukki district. Licence which is directed to be granted in my favour will enable me to open a bar in Trivandram City. Obviously petitioner cannot consider himself aggrieved in any manner by the said license. It is therefore clear that petitioner must have been acting at the instance of his employer or some other person.” These averments are not denied by filing a reply affidavit. We agree with the advocate appeared for the fourth respondent that the petition is not a public interest litigation but a private vengeance litigation, to deny licence to the fourth respondent probably at the instance of rival bar owners. A person residing in Iddukki is not normally bothered by granting a license in Thiruvanathpuram. In any event, there is no public interest whatsoever and the writ petition filed as public interest litigation is liable to be dismissed on that ground. 3. A person residing in Iddukki is not normally bothered by granting a license in Thiruvanathpuram. In any event, there is no public interest whatsoever and the writ petition filed as public interest litigation is liable to be dismissed on that ground. 3. With regard to the main contention that the grant of licence was in violation of the policy existing at the time of issue, the matter is covered by the decision of this court in B.Six Holiday Resorts (P) Ltd. Vs. State of Kerala (2002 (2) KLJ 941) which is the against the petitioner. Petitioner has relied an a latest decision of this court in Radhamani Vs. State of Kerala (2005 (3) KLT 86) wherein in was held that the decision in B.Six Holiday Resorts’ case (supra) is not of universal application. Now we will come to the facts of Radhamani’s case. Petitioner therein submitted her application on 4.3.1992. This court by judgment in O.P.No.13402 of 1992 dated 19th October, 1992 directed the Government to consider the same. It was rejected after change of policy. She kept quiet for 10 years. Then she filed an application on 24.10.2002 praying for considering her application filed in 1992. Thereafter she followed up and this court directed the Government to consider the same. Finally it was rejected as if the application filed only on 24.10.2002. Learned Single Judge in W.P.(C).No.18913/2004 held as follows: “7. The petitioner’s application, filed in 1992, was directed to be reconsidered by this court in Ext.P1 judgment. She neither filed any contempt application to compel the Government to consider it nor did she pursue the matter, thereafter. She woke up from her slumber only after the lapse of 10 years. Among the various example cited before me, the petitioner is one, who slept over her rights for the longest period. The declaration of this Court, made in B. Six Holiday Resorts’ case mentioned above, does not create any new legal rights like, by the promulgation of any Act or Rules. The law was always the same. This court only declared the law. So, the petitioner could have and should have agitated her claim in time.” Court has noticed that since her application filed in 1992 itself was not available as records were destroyed and it need not be kept for 10 years. Petitioner kept silence over rejection of her application in 1992 for years together. This court only declared the law. So, the petitioner could have and should have agitated her claim in time.” Court has noticed that since her application filed in 1992 itself was not available as records were destroyed and it need not be kept for 10 years. Petitioner kept silence over rejection of her application in 1992 for years together. Therefore, her application made in 2002 can be decided on the policy as prevalent in 2002. While considering the writ appeal, the Division Bench in Radhamani’s case (supra) only held that B. Six Holiday Resorts’ case is not of universal application. In the above case, after the rejection of the application filed in 1992, she moved the Government only in 2002. By the time, old records were destroyed and in those circumstances, the learned single judge held that her application can be treated only as an application filed in 2002 and since her hotel was not having three star facility she is not entitled to apply as per the policy in 2002 and writ petition was dismissed. The above decision was upheld by the Division Bench in 2005. But, the court did not dissent with the earlier decision of the Division Bench in B.Six Holiday Resorts’ case (supra). If the court dissented from the above case, the Division bench would have referred the matter to Full Bench. 4. Now we will consider the decision in B.Six Holiday Resorts’ case (supra). In that case, petitioner applied for licence in 2000. Then another application was also filed on 19.12.2001. In the application filed on 19.12.2001 no action was taken. Then by notification dated 20.02.2002 the rules were amended with retrospective effect from 1st July, 2001 and application was rejected on the basis of the policy as contained in the amended rules. After considering various Apex Court decisions, it was held by the Division Bench as follows: “14. With this formidable array of precedents the learned Advocate General found it difficult to sustain the retrospective effect given to the proviso added by the amendment notified on 20.02.2002, since there is no provision in the Kerala Abkari Act, which empowers the rule making authority to make rules retrospectively. The learned Advocate General, therefore, frankly conceded that he would not be able to sustain the validity of the retrospective effect given to the proviso in Rule 13(3). 15. The learned Advocate General, therefore, frankly conceded that he would not be able to sustain the validity of the retrospective effect given to the proviso in Rule 13(3). 15. In the result, we accept and uphold the contention of the petitioner that the retrospective effect given to the proviso added to Rule 13(3) of the Rules from 1st July to 19th February, 2002 is bad in law and that the rule can be validly upheld only as becoming effective from 20.02.2002 we accordingly strike down the aforesaid retrospective effect of the proviso to Rule 13(3) of the Rules. 16. The direct consequence of staking down the retrospective effect given to the newly added proviso would mean that, at no point of time when the successive applications of the petitioner were rejected was there any inhibition against consideration of the petitioner’s application for grant of FL-3 licence on the ground of change policy. The learned counsel for the petitioner, therefore, contends that the application of the petitioner ought to be considered and granted on the basis of the law which stood on the date of his first application on 11.12.2000, or at any rate, on 19.12.2001 when the application was reiterated.” The court declared the law and it is a binding precedent unless it is overruled by the Hon’ble Apex court or a larger bench. According to the Division Bench, the application should be decided on the basis of the policy and rules as on the date of submission of the application and even if the rules are amended retrospectively due to change of policy, the retrospective operation is invalid. There is no provision in the Abkari Act authorizing the rule making authority to make retrospective rules. The court also referred to an earlier Division Bench judgment in G.Mohandas v. State of Kerala (O.P.No.3455 of 1996). The applications therein had been made on 4.10.1994 and 6.6.1995 for grant of FL-3 licence. It was argued that licence was granted to Four Star Hotels without reference to the distance rule prior to the 1996 amendment which came into force with effect from 26.3.1996. The Division Bench was of the view that the State authority should consider the last application submitted by the petitioner therein prior to 26.3.1996 as pending and pass appropriate orders. The above view was upheld by the Supreme Court and S.L.P. was dismissed. The Division Bench was of the view that the State authority should consider the last application submitted by the petitioner therein prior to 26.3.1996 as pending and pass appropriate orders. The above view was upheld by the Supreme Court and S.L.P. was dismissed. The above decision was relied on in paragraph 17 of the judgment of the Division Bench in B.Six Holiday Resorts case (supra) as follows: “………This court was, therefore of the view that the State authorities should consider the last application submitted by the petitioner therein prior to 26.3.1996 as pending and pass appropriate orders in such applications in accordance with law applying the rules in existence prior to the 1996 amendment. This judgment of the Division Bench was carried to the Supreme Court in appeal in State of Kerala & Others v. G. Mohandas, S.L.P.(civil)No.16343 of 1998. The Special Leave petition was dismissed by the Supreme Court on 27.2.2002 by the following order: “It is not disputed that the Rules were amended on 23rd March, 1996 with effect from 5th September, 1990. It is also not disputed that the respondent was granted FL3 licence on 10th June, 1996 prior to the amended Rules came into force and inasmuch as the other licence of FL-3 are allowed to continue to run bar. In view of the aforesaid fact, we do not find it a case for interference. The special leave petition is accordingly, dismissed.” Therefore, the rule declared by the Division Bench was that application has to be decided on the basis of the Rules as in force when the application was made. The above judgment was also cited before the Division Bench in Radhamani’s case (supra) and the learned Judges did not differ from the view expressed in the earlier Division Bench in B.Six Holiday Resorts case. However, in that case, even though the application was filed and rejected in 1992, the applicant did not peruse the matter. Only after a decade, in 2002 a petition was filed with reference to the application filed in 1992. In that circumstance, the Government as well as the learned single Judge found that the application has to be considered only on the basis of the rules in force in 2002 and in that context only the Division Bench made the observation that the judgment in B.Six Holiday Resorts’ case (supra) is not one of universal application. In that circumstance, the Government as well as the learned single Judge found that the application has to be considered only on the basis of the rules in force in 2002 and in that context only the Division Bench made the observation that the judgment in B.Six Holiday Resorts’ case (supra) is not one of universal application. Against the B.Six Holiday Resorts’ case (supra) the State approached the Apex Court. Even though the Apex Court initially granted a stay, it was vacated later and it is submitted that in all those cases covered by B.Six Holiday Resorts’ case licences were granted. Government Pleader also submitted that in view of the directions of this court, various licences were granted on the basis of application in 1992 and in view of the policy an occurred in 1992. According to the fourth respondent, more than 30 licences have been granted by the Excise Department to various persons during the period 1993-2005 pursuant to the above directions where the eligibility was tested with regard to the date of application. These averments remain unchallenged. In this case fourth respondent applied for licence in 1992 and rejection was questioned and the matter was in dispute. This court directed to reconsider the matter and in the third round also this court directed the Excise authority to consider his application in 1992 taking into account B.Six Holiday Resorts’ case (supra) and finally order was passed granting licence. There is no illegality or impropriety in it. We have already seen that the petitioner has no locus stand to challenge the above order, as it is not a petition filed in public interest. In the above circumstances, the writ petition is dismissed.