IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 29TH FEBRUARY 2008 / 10TH PHALGUNA 1929 RP.No. 221 of 2008(A) --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.27310/2007 Dated 15/11/2007 .................... REVIEW PETITIONERS / RESPONDENTS 1 TO 3 IN THE WP(C) : ----------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TAXES,(G) DEPARTMENT, THIRUVANANTHAPURAM. 2. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE THIRUVANANTHAPURAM. 3. THE ASSISTANT EXCISE COMMISSIONER ALAPPUZHA. BY GOVERNMENT PLEADER – SMT.A.G.ANEETHA RESPONDENTS / PETITIONER IN WP(C) : ------------- K.K.RAJI, PROPRIETRESS, ENKEYS RESTAURANT, PATHIRAPALLY,ALAPPUZHA. BY ADV. SRI.A.SUDHI VASUDEVAN SRI.SABU GEORGE THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 29/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN, J. ------------------------- R.P.No.221 of 2008 in W.P.(C) No. 27310 of 2007 --------------------------------- Dated, this the 29th day of February, 2008 O R D E R By the judgment dated 15/11/2007, which is sought to be reviewed, it was directed that the respondents shall treat that the petitioner had applied for FL-3 licence on 19/07/2001 and that her case will be treated on that basis. 2. This review petition is filed stating, among other reasons, that Ext.P6, though shown to have been returned by the Assistant Excise Commissioner, Alappuzha on 19/07/2001, does not disclose that the petitioner had produced all necessary particulars along with Ext.P6. In support of this contention, it is stated in the counter affidavit sworn to on 27/02/2008 that certain documents are required to be produced along with the application for licence, which are as follows :- “(a) Classification Certificate of the Hotel. (b) Details regarding the ownership of Hotel Building and property. (c) Affidavit of the applicant. (d) No dues certificate from Abkari Welfare Fund Inspector. R.P.No.221/2008 -2- (e) Lease deed, if the building is not in the name of the applicant. (f) 3 copies of the plan of the Hotel Building. (g) Hotel/Restaurant Licence. (h) Report from Asst.Excise Commissioner / Deputy Commissioner of Excise regarding the details mentioned under Rule 13A of Foreign Liquor Rules. (i) Report regarding the distance from the objectionable institutions etc.” 3. Among the aforesaid documents, the last two are to be provided by the Department themselves. This means that before the application reaches the table of the Commissioner of Excise, the subordinate officers i.e. the Assistant Excise Commissioner and the Deputy Commissioner have to look into the applications and make reports as are required at serial Nos.(h) & (i) among the above. Those details and documents at serial Nos. (b) to (g) would be relevant for an FL-3 licence as on 19/07/2001 only if the applicant has a Classification Certificate for that hotel in terms of serial No.(a) above. If one does not have a Classification Certificate, the insistance to produce the other documents would remain superfluous. R.P.No.221/2008 -3- 4. It is in this context that certain relevant facts required to be noted. Ext.P6 was undisputably submitted by the petitioner on 19/07/2001 to the Excise Commissioner through the Assistant Excise Commissioner. The Assistant Excise Commissioner returned that on 19/07/2001 itself by endorsing on the foot of Ext.P6 that the said application is returned since Classification Certificate is not produced. It was also stated therein that the application be re- presented with Classification Certificate. It is not as if the Rule prescribes outright rejection of an application, if it is not accompanied by the prescribed documents. The party should have an opportunity to rectify the defects. Even in the counter affidavit of the State Government, of which reference has been made by me, the contents of Ext.P3 are not referred. It is the uncontroverted statement in Ext.P3, issued by the Assistant Director, India Tourism to the Director, Department of Tourism, Government of Kerala on 07/03/2002, that from March 2001 the Tourism Department of Government of India had not conducted any inspection of the hotels in the State of Kerala, in view of request of the State Government to the Regional Director, Government of India, Tourism Office, Chennai not to inspect any restaurant till a clear view is taken by the State Government on liquor policy. In such a situation, the R.P.No.221/2008 -4- petitioner had moved this Court for a direction to the Department of Tourism, Government of India to conduct the inspection. They were compelled why a writ of this court, issued as per Ext.P2 judgment, on 16/11/2001. Ext.P3 letter was issued by the Tourism Department in the Government of India to the Department in the Government of Kerala because the Tourism Department in the Government of India could not but obey the command contained in Ext.P2 judgment. Having created a situation where there could not have been any inspection of the restaurants to issue Classification Certificate, it does not lie in the mouth of the State Government or the Excise Commissioner to plead that the Classification Certificate was not produced. 5. It was on the basis of the afresaid materials and by taking note of the fact that Ext.P7 restaurant approval order was issued by the Government of India on 18/12/2006 with effect from 15/05/2001 i.e. before the date of Ext.P6 application, that it was concluded by this Court in the judgment sought to be reviewed that the crucial date on the basis of which the application is to be considered is 19/07/2001, the date of Ext.P6. Therefore, there is no error of law or fact appearing on the face of the record of the R.P.No.221/2008 -5- judgment sought to be reviewed. In the result, the review petition fails and the same is, accordingly, dismissed. (THOTTATHIL B.RADHAKRISHNAN, JUDGE) jg