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2010 DIGILAW 187 (KER)

State Of Kerala v. V. S. Raveendran Pillai

2010-03-03

K.BALAKRISHNAN NAIR, P.N.RAVINDRAN, S.S.SATHEESACHANDRAN

body2010
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 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. 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 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. 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). 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. 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. 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. 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 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. 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. 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.