IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 21ST JANUARY 2009 / 1ST MAGHA 1930 WA.No. 892 of 2008() -------------------- AGAINST THE JUDGEMENT IN WPC.1196/2006 Dated 12/12/2007 .................... APPELLANT(S): RESPONDENTS 1 TO 3 IN WP(C): ------------------------------------------ 1. THE SECRETARY, TAXES (A) DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. COMMISSIONER OF EXCISE, EXCISE COMMISSIONERATE, TRIVANDRUM. 3. ASST.EXCISE COMMISSIONER, EXCISE OFFICE, ERNAKULAM. 4. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM. BY GOVERNMENT PLEADER SMT.MEERA RESPONDENT(S): PETITIONER IN THE WP(C): --------------------------------------- MRS. JAYA BABY, PROPRIETOR, HOTEL HILL VIEW, CIVIL LINE ROAD, B.M.C. POST, COCHIN-21. BY SRI.K.P.DANDAPANI, SENIOR ADVOCATE ALONG WITH ADV. SRI.MILLU DANDAPANI THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY, Ag.C.J. & V.GIRI, J. -------------------------------------- W.A.No.892 of 2008 ------------------------------------- Dated 21st January, 2009 JUDGMENT Koshy, Ag.C.J . Respondent in this appeal (petitioner in the writ petition) approached this court seeking a direction to issue FL3 licence on her application dated 29.7.1992 and also for a declaration that she is eligible for the licence sought for by her. It is her definite case that on 29.7.1992 she filed an application for bar licence, but, it was not considered. Thereafter, rules were amended. Petitioner was having a two-star hotel. If the application is recommended with effect from the alleged date of application, i.e., 29.7.1992, it could have been considered by the authorities. But, later rules were amended and petitioner challenged the amendment of the rules by filing O.P.No.3710 of 1995. During the pendency of the writ petition, the Act itself was amended and the writ petition was disposed of directing the petitioner to file a representation before the authorities. Accordingly, representation was filed. Since it was informed that application was not seen in the file, another application was also filed as can be seen from Ext.P4. Ext.P4 was filed only in 2005, immediately after disposal of the writ petition by Ext.P1 judgment. W.A.892/2008 2 Stand of the respondent (appellant in this case) was that the application dated 29.7.1992 was not received at all. According to the Government Pleader, a contention that an application was filed in 1992, was raised in 2005 subsequent to the judgment. But, it is the consistent case of the petitioner that she filed an application on 27.9.1992 and if no such application was filed, there was no necessity to file the earlier writ petition. It was also contended that several applications were filed in 1992. Those applications were held over without passing any orders and when the rules were changed, all those applications were rejected. Many of the licencees approached this court by filing writ petitions and in B.Six Holiday Resorts (P) Ltd. v. State of Kerala (2002 (2) KLJ 941) a Division Bench of this court by a detailed judgment pronounced by Srikrishna, C.J, (as he then was), directed to consider the cases as per the rules on the date of the applications. All those applications were allowed. Request for staying the above judgment was not acceded to by the Hon'ble Supreme Court. Petitioner relied on various other judgments wherein this court directed consideration of application on the basis of the rules on the date of filing of the application and consequently on the directions of this court licence was granted. Petitioner also relied on an unreported decision of this court in Sijomon Chacko v. State of Kerala & others (W.P.(C) No.1136 of 2006) wherein a party W.A.892/2008 3 challenged grant of licence on the basis of the rules and policies in 1992 after the amendment of the rules and that was not accepted by this court. The learned Government Pleader relied on the decision of this court in Radhamani v. State of Kerala (2005 (3) KLT 86). The said decision was also considered in Sijomon Chacko's case (supra), but it was distinguished on the basis that in that case application was dismissed earlier itself. That dismissal was not challenged for a long time and no appeal was also filed. But, later, the petitioner wanted to consider the application on merit. Since the application was dismissed and no appeal was filed, it was held that the petitioner cannot revive the earlier application and new application filed can be decided only as per the amended rules. At paragraph 7 of the judgment in that case, the learned single Judge held as follows: “7. The petitioner's application, filed in 1992, was directed to be reconsidered by this court in Ext.P1 judgment. She neither filed any contempt application to compel the Government to consider it nor did she pursue the matter, thereafter. She woke up from her slumber, only after the lapse of 10 years. Among the various examples cited before me, the petitioner is one, who slept over her rights for the longest period. The declaration of this Court, made in B.Six Holidays Resorts' case mentioned above, does not create any new legal rights, like by the promulgation of any Act or Rules. The law was always the same. This Court only declared the W.A.892/2008 4 law. So, the petitioner could have and should have agitated her claim in time.” Various other decisions were also relied on before us for directing the State to consider the application with respect to the rules on the date of the application. Considering the fact that those applications were not considered even though it could have been considered at that time itself, question is whether application was filed at that time in 1992. Apart from the assertions, the learned Judge found that the hotel was constructed with the help of Kerala Financial Corporation and Ext.P3 invitation shows proposed participation of the then Speaker, the Minister for Finance, the Member of Parliament, three MLAs etc. apart from other dignitaries including the District Collector and the Managing Director of Kerala Finance Corporation. Considering the earlier judgments etc., the learned Judge found as follows: “For the aforesaid reasons, the preponderance of probabilities weigh heavily in favour of the petitioner to hold that she had, in fact, filed an application for FL-3 licence on 29.7.1992.” That is a finding made by the learned single Judge and we are of the view that such a finding cannot be interfered with in an intra court appeal. In view of the assertion and from the circumstances, the W.A.892/2008 5 learned single Judge came to a finding on that aspect. Thus, learned Judge only directed to consider the application applying the ratio of the decision in B.Six Holiday ''s case (supra). In view of the above, we see no ground to interfere with the judgment. In view of the long delay, the Government shall consider the application within one month from the date of receipt of a copy of this judgment. The appeal is dismissed. J.B.KOSHY ACTING CHIEF JUSTICE V.GIRI JUDGE tks