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2016 DIGILAW 999 (KER)

Hotel New Indraprastha, Adoor, Pathanamthitta District, rep. by its Managing Partner, K. P. Karthikeyan, S/o. K. G. Purushothaman v. State of Kerala, Represented By Secretary, Taxes (A) Department, Govt. , Secretariat

2016-11-17

P.B.SURESH KUMAR

body2016
JUDGMENT : P.B. Suresh Kumar, J. The petitioner is a firm running a hotel. The petitioner firm holds a licence in Form FL-11 of the Foreign Liquor Rules ('the Rules') framed under the Abkari Act ('the Act'). On 16.6.2016, there was an inspection in the premises of the hotel of the petitioner by the excise officials. Ext.P3 is the mahazar prepared in connection with the said inspection. It is stated in Ext.P3 mahazar that the petitioner had kept 24 cases of beer and 8 bottles of wine in a room other than the store room shown in the plan approved by the statutory authority for possession of liquor at the time of granting the licence. A case was also registered against the petitioner immediately thereupon under Section 56(b) of the Act alleging violation of Rule 16(1) of the Rules. According to the petitioner, the room where the beer cases and wine were kept is a room adjacent to the permit room and that there is no condition in the licence prohibiting use of the said room for keeping liquor to be served in the permit room and that therefore, the said conduct of the petitioner would not amount to breach of Rule 16(1) of the Rules, warranting registration of a case under Section 56(b) of the Act. The petitioner, therefore, seeks a declaration to the above effect in the writ petition. Though several other reliefs are also sought in the writ petition, the same were not pressed at the time of hearing. 2. A statement has been filed on behalf of respondents 3 and 4, supporting the registration of the case. 3. Heard the learned Senior Counsel for the petitioner as also the learned Senior Government Pleader. 4. The learned Senior Counsel for the petitioner reiterated the contention raised in the writ petition. Per contra, the learned Senior Government Pleader contended that the conduct of the petitioner referred to in Ext.P3 mahazar would amount to breach of Rule 16(1) of the Rules. As per the said Rule, according to the learned Senior Government Pleader, no premises shall be used for sale or for possession and use of liquor, without prior sanction of Excise Commissioner. As per the said Rule, according to the learned Senior Government Pleader, no premises shall be used for sale or for possession and use of liquor, without prior sanction of Excise Commissioner. It was pointed out by the learned Government Pleader that in order to ensure compliance of the said statutory provision, a plan showing the room where the applicant proposes to keep the liquor other than the permit rooms, is insisted along with the application for licence and the same is also approved authorising the use of the said room for keeping the liquor while granting the licence. According to the learned Senior Government Pleader, the place where the petitioner is authorised to keep liquor is specifically shown in the plan approved at the time of granting the licence to the petitioner and that the room where the petitioner has kept liquor as indicated in Ext.P3 mahazar is not the room where they are authorised to keep the liquor as per the approved plan. It was also pointed out by the learned Senior Government Pleader that when a plan of the lay out of the rooms in the buildings of the licensee is specifically insisted along with the application for grant of licence and when the plan is approved specifying the room/rooms where the licensee is authorised to keep the liquor, it cannot be contended that there is no prohibition in the licence issued to the petitioner in keeping the liquor anywhere in the building. 5. I have examined the contentions raised by the parties. It is beyond dispute that a licensee under the Rules is authorised as per the terms of the licence to conduct the licensed activity only in accordance with the Rules. As such, the short issue falls for consideration is whether the conduct of the petitioner referred to in Ext.P3 mahazar would amount to breach of Rule 16(1) of the Rules. Rule 16(1) of the Rules reads thus: "(1) No premises shall be used for the sale or for possession and use of liquor without prior sanction of the Excise Commissioner." Rule 16(1) of the Rules, which is negatively couched, indicates that the licensee is not entitled to use any premises for the sale or for possession and use of liquor without the sanction of the Excise Commissioner. The question, therefore, is whether the room where the liquor was kept by the petitioner is a premises in respect of which the petitioner has obtained prior permission of the Excise Commissioner for keeping the liquor. The petitioner has no case that they have obtained prior permission of the Excise Commissioner to keep the liquor in the room referred to in Ext.P3 mahazar. Their case, on the other hand, is only that they are not prohibited from keeping liquor in that room. In this context, there is force in the contention advanced by the learned Senior Government Pleader that the room where the liquor was kept by the petitioner is not a room specified in the approved plan for keeping the liquor and that therefore, the petitioner is not entitled to keep liquor in the said room. When a plan of the lay out of the rooms in the buildings of the licensee is specifically insisted along with the application for grant of licence and when the plan is approved specifying the room/rooms where the licensee is authorised to keep the liquor, there is no difficulty in holding that the same is the sanction to use the premises for sale or for possession and use of liquor. In so far as the place where the petitioner has kept the liquor is not a place authorised for keeping the liquor as per the plan approved by the Excise Commissioner while granting the licence, it cannot be contended that a case under Section 56(b) of the Act has not been made out. There is, therefore, no merit in the writ petition and the same is, accordingly, dismissed.