IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 7TH OCTOBER 2010 / 15TH ASWINA 1932 WP(C).No. 23131 of 2009(J) -------------------------------------- PETITIONER: ------------------- HOTEL SKY PALACE, METRO TOWER, THAVAKKARA ROAD, KANNUR-670 002, REPRESENTED BY ITS PARTNER. BY ADVS. SRI.K.JAJU BABU, SMT.M.U.VIJAYALAKSHMI, SRI.BRIJESH MOHAN, SRI.T.S.SHYAM PRASANTH. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REP.BY SECRETARY TO GOVT., TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. THE COMMISSIONER OF EXCISE, TRIVANDRUM-695 033. 3. THE DEPUTY COMMISSIONER OF EXCISE, EXCISE INTELLIGENCE AND INVESTIGATION BUREAU, HEADQUARTERS, COMMISSIONERATE OF EXCISE, TRIVANDRUM. 4. THE DEPUTY EXCISE COMMISSIONER, KANNUR. R1 TO R4 BY GOVERNMENT PLEADER SRI. SANDESH RAJA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.23131/2009-J: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE STAR CLASSIFICATION ORDER DTD. 05/09/05 ISSUED BY THE MINISTRY OF TOURISM OF GOVT. OF INDIA. EXT.P.2: COPY OF THE REPORT OF THE R.4. DTD. 10/10/05 TO THE R.2. VIDE NO. C1.2955/05. EXT.P.3: COPY OF THE FL3 LICENCE WAS GRANTED TO THE PETITIONER AS PER ORDER DTD. 09/11/05 IS RENEWED UPTO 31/03/2010. EXT.P.4: COPY OF THE SHOW CAUSE NOTICE ISSUED TO THE PETITIONER BY THE R.2. ON 27/11/07 VIDE NO XC1-30509/05. EXT.P.5: COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER ON 18/12/07 PRODUCING REPORT OF THE TOWN SURVEYOR DTD. 24/08/07 ALONG WITH PLAN. EXT.P.6: COPY OF THE REPORT SUBMITTED BY THE R.2. DTD. 22/03/08 VIDE NO. E1& IB (HQ)XVI/111/2008. EXT.P.7: COPY OF THE HEARING NOTICE DTD. 03/03/08 VIDE NOXC1-30509/05 ISSUED BY THE R.2. EXT.P.8: COPY OF THE PROCEEDINGS NO.XC1-30509/05 DTD. 10/08/09 ISSUED BY THE R.1. EXT.P.9: COPY OF THE FL3 LICENCE ISSUED TO HOTEL RUBY AREENA NEAR MEDICAL COLLEGE, TRIVANDRUM ON 17/02/09. EXT.P.10: COPY OF THE APPLICATION ALONG WITH SUPPORTING DOCUMENTS SUBMITTED BY THE PETITIONER FOR RENEWAL OF LICENCE. EXT.P.11: COPY OF THE PROCEEDINGS DTD. 31/03/2010 AS PER THE DIRECTIONS OF THE R.4. EXT.P.12: COPY OF THE REPORT OF THE SECRETARY, KANNUR MUNICIPALITY DTD. 28/03/2009. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.23131 Of 2009 ----------------------------------------------------- DATED THIS THE 7th DAY OF OCTOBER, 2010 J U D G M E N T The petitioner is the licensee of a hotel by name “Hotel Sky Palace”, Kannur. The proceedings granting star classification is produced as Exhibit P1. The challenge is against the cancellation of the licence by the Excise Commissioner as per Exhibit P8 order. 2. The case of of of the petitioner is that the application for grant of FL.3 licence dated 5.10.2005 was recommended by the Circle Inspector of Excise, Kannur finding that the hotel is situated in an unobjectionable site. The measurement at that point of time taken from the nearest gate of Government Upper Primary School, Thavakkara to the hotel showed that the distance is 205 metres and accordingly the application was recommended as evident from Exhibit P2 and accordingly he was granted licence. It was being renewed from time to time and Exhibit P3 is the order granting renewal upto 31.3.2010. 3. The present proceedings, apparently, started by a notice Exhibit P4 issued by the Commissioner of Excise. The W.P.(C)No.23131/09 -2- same is based on a report made by the Deputy Commissioner of Excise, Excise Intelligence and Investigation Bureau, Trivandrum, wherein it was reported that the distance is only 159 metres. The petitioner filed an objection as per Exhibit P5. He had also produced along with Exhibit P5, the report of the Town Surveyor of the Municipality showing that the distance is 209 metres. Exhibit P6 is the report by the Deputy Excise Commissioner, Kannur dated 22.3.2008, wherein the distance shown is 298.8 metres. Exhibit P7 notice shows that the hearing was conducted on 27.3.2008. 4. It is the case of the petitioner that nearly 1½ years later, Exhibit P8 order has been passed. Mainly it is contended that the Commissioner has not independently considered the matter, as he was only acting as per the direction of the Government, which is evident from the order itself. It is pointed out that the order reveals that the Government had appointed a Committee and a report was furnished by the said Committee. A letter dated 3.8.2009 was issued by the Government also to the Excise Commissioner, wherein it was observed that the zebra crossing in the road was made only during 2007 and accordingly W.P.(C)No.23131/09 -3- the Government directed to cancel the FL.3 licence granted to the hotel. 5. Heard the learned Government Pleader appearing for the respondents. 6. That the hearing of the matter was conducted on 27.3.2008 is evident from Exhibit P7. References 7 and 8 in Exhibit P8 order are issued on subsequent dates of the hearing conducted by the Excise Commissioner. 7. It is submitted by the learned counsel for the petitioner that with regard to the deliberations of the Committee appointed by the Government, the petitioner was totally kept in the dark and inspection conducted to take measurement was also without notice to the petitioner. It is therefore submitted that the report should not have been relied upon. 8. The order, Exhibit P8, is really issued in the light of the direction by the Government. Therefore, the Excise Commissioner was really acting on the dictation of the Government and he has not taken any independent decision. In that view of the matter, the order Exhibit P8 will not survive. Apart from that, if the report of the Joint Committee had to be W.P.(C)No.23131/09 -4- relied upon, then the petitioner was entitled to be furnished a copy of the report and an opportunity to file objections in the matter. That also was not done. 9. Evidently, the matter reached the Government because of the communication by the Deputy Commissioner of Excise, Excise Intelligence and Investigation Bureau, Trivandrum. Therefore, for all these reasons, Exhibit P8 cannot be supported and the same is quashed. 10. The learned counsel for the petitioner further relied upon the principles stated by this Court in State of Kerala v. Vijaya Kumar (2009(1) KLT 578) to contend that measuring the distance from gate to gate along footpath and through zebra crossing in confirmity with traffic rules, is in order. 11. The matter will have to be reconsidered with notice to the petitioner and after supplying all materials to the petitioner. Since the Government had appointed a Committee, it is only proper that the first respondent conduct a hearing of the matter, with notice to the petitioner as directed above. Therefore, there will be a direction to the 1st respondent to pass appropriate orders, after hearing the petitioner, within a period of four W.P.(C)No.23131/09 -5- months from the date of receipt of a copy of this judgment. The petitioner will be furnished a copy of the report of the Joint Committee referred to in Exhibit P8 well before the date of hearing for enabling him to file appropriate objections in the matter. It is submitted by the learned counsel for the petitioner that for the present year, the licence has been renewed in the light of the interim order passed by this Court. The Writ Petition is disposed of as above. No costs. T.R.RAMACHANDRAN NAIR, JUDGE. dsn