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VADAKKUMBHAGAM CENTRAL MUSLIM versus B. SURENDRA DAS

High Court of Kerala

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VADAKKUMBHAGAM CENTRAL MUSLIM v. B. SURENDRA DAS - WA No. 1637 of 2006 [2006] RD-KL 1016 (9 October 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA No. 1637 of 2006()

1. VADAKKUMBHAGAM CENTRAL MUSLIM
... Petitioner

Vs

1. B.SURENDRA DAS, S/O.LATE
... Respondent

2. THE STATE OF KERALA, REPRESENTED

3. THE COMMISSIONER OF EXCISE,

4. THE ASSISTANT EXCISE COMMISSIONER,

For Petitioner :SRI.K.JAJU BABU

For Respondent :SRI.N.RAGHURAJ

The Hon'ble MR. Justice J.B.KOSHY The Hon'ble MR. Justice M.N.KRISHNAN

Dated :09/10/2006

O R D E R

J.B. KOSHY & M.N.KRISHNAN, JJ.

W.A. Nos. 1637 & 1774 of 2006

Dated this the 9th day of October, 2006

Judgment

Koshy,J.

Respondent in W.A. No.1774 of 2006 was granted FL3 licence on 23-11-2003 to conduct a bar restaurant. During that period, as per the policy of the Government FL3 licence can be granted to single star classified hotels with appropriate restrictions. Respondent was granted the licence because it was an approved classified restaurant. The policy of the Government was changed from 2004 and Government stopped the policy of granting bar licence to approved classified restaurants. However, the approved classified hotels were given the facility to convert the same to a star hotel by making necessary facilities. Sub-section (4) of rule 13 B of the Foreign Liquor Rules reads as follows:

"(4) Notwithstanding anything to the contrary contained in these rules, it shall be lawful for the Government to extent the privilege of vending foreign liquor granted to the licensees for the year 2003-2004 for W.A.Nos.1637 & 1774/2006 2 a further period of one year subject to the following conditions, namely:-

(a) xx xx xx

(b) All unclassified and 'singe star' classified hotels shall get the hotels classified as two star or above by providing the required facilities for being so classified, by the Classification Committee under the Tourism Department before 30th September 2004.

(c) The licensee shall produce an affidavit to the effect that his hotel is having two star or higher classification or shall attain this qualification within six months and that he is not ineligible under any of the existing laws to get his licence renewed. xx xx xx " They were also given six months' time to convert the same to a star facility hotel. Since business was very low and conversion of the hotel in that place to two star hotel was economically not feasible, petitioners applied for transferring of the licence to two star hotel. It was rejected mainly on the ground that at the time of application for shifting only three star hotels were given permission. It is true that policy of the W.A.Nos.1637 & 1774/2006 3 Government cannot be interfered with. But, policy of the Government is reflected in the relevant rules. As per the relevant rules and policy of Government only hotels with three star facilities were granted FL3 licences. But, the above rule was not made applicable to existing hotels. Rules were amended with effect from 1-4-2004 so that existing FL3 licences also can be shifted to two star hotels. Rule 24 of the Foreign Liquor Rules as amended with effect from 1-4-2004 reads as follows: "24. It shall be competent to the

Excise Commissioner to permit or to order the transfer of any shop from one locality to another, within the town or taluks as the case may be, according as the shop is situated in a town or outside a town or to order any shop to be closed in the interests of public peace or morality or on grounds of expediency." Earlier, there was a proviso to rule 24 which reads as follows:

"Providedl that no Foreign Liquor 3 licensee shall be allowed to transfer his shop from its original location to a new location unless it fulfills all the conditions of eligibility required for the W.A.Nos.1637 & 1774/2006 4 grant of a new Foreign Liquor 3 licence at the new location." That proviso was deliberately deleted with effect from 1-4-2004. Therefore, after the deletion of the above provision, Government officials cannot insist that for shifting the licence also conditions necessary for new grant should be observed. Hence, it is clear that an existing bar licence which was allowed to be conducted in a hotel with two star facilities can be shifted to another place where there are two star facilities. In view of rule 24 we are of the view that shifting was fully justifiable and it will not offend the policy as stated in the rules. We see no ground to interfere in the judgment of the learned single Judge. Therefore, we dismiss W.A.No.1774 of 2006. W.A.No.1637 of 2006 was filed by Vadakkumbhagam Central Muslim Jama-ath contending that in Vizhinjam where the mosque is situated no bar licence can be granted. But, admittedly, the mosque of the appellant was situated far away from the prohibited distance and there was no statutory prohibition. The learned Judge also noted that three other two star hotels are W.A.Nos.1637 & 1774/2006 5 functioning there. In fact, allegation raised by the respondent that his application for shifting was rejected because of the pressure and influence of other bar hotels in the area. The objections raised by the appellant is also specifically rejected by the Commissioner of Excise on factual basis and those findings of facts are not disputed. Since the proposed bar hotel is situated beyond the prohibited distance from mosque as per the rules, W.A.Nos.1637 & 1774/2006 6 there is no merit in W.A.No.1637 of 2006 and it is also dismissed. J.B.KOSHY

JUDGE

M.N.KRISHNAN

JUDGE

vaa J.B. KOSHY AND

M.N.KRISHNAN,JJ.

W.A. Nos.1637 & 1774/2006 Judgment

Dated:9th October, 2006


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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