IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 WP(C).No. 29191 of 2007(A) -------------------------- PETITIONER(S): --------------- T.K.GANGADHARAN, MANAGING PARTNER, M/S SALKARA TOURIST HOME, KATTOOR, THRISSUR DISTRICT. BY ADV. SRI.T.A.SHAJI SMT.T.V.NEEMA RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, THIRUVANANTHAPURAM. 2. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM. GOVERNMENT PLEADER MATHEW VADAKKEL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/06/2009, THE COURT ON 22/6/2009 DELIVERED THE FOLLOWING: APPENDIX(WP(C) 29191/2007) PETITIONER'S EXTS. EXT.P1 TRUE COPY OF THE APPLICATION DTD. 16.3.2007 SUBMITTED BY THE PETITIONER AND OTHER PARTNERS BEFORE R2. EXT.P2 TRUE COPY OF THE JUDGMENT DTD. 10.9.2007 IN WPC 26811/2007 OF THIS COURT. EXT.P3 TRUE COPY OF THE ORDER NO.XC6-7672/2007 DTD. 25.9.2007 ISSUED BY R2. EXT.P4 TRUE COPY OF THE G.O.(P)NO.44/07/TD DTD. 13.3.2007 ISSUED BY THE GOVERNMENT OF KERALA. lgk THOTTATHIL B RADHAKRISHNAN, J ........................................... WP(C).NO. 29191 OF 2007 ............................................ DATED THIS THE 9th DAY OF JUNE, 2009 JUDGMENT The petitioner and others applied for reconstitution of an existing partnership which held FL-3 license. Going by paragraph 3 of the counter affidavit, that application was submitted on 18.3.2007. The amendment to the rules came into force with effect from 1.4.2007 creating an embargo that reconstitution cannot be allowed, except in cases where the Hotels have two- star certificate issued by the Ministry of Tourism, Government of India. This question was dealt with by this court in WP(C)29186 of 2007 and it was held that the relevant date for consideration was the date of application and if the application was received before 1.4.2007, the date of insertion of the amendment, that application would be governed by the unamended rule. That decision has been affirmed by the Division Bench in W.A.No.699 of 2008. On that short reason, this writ petition succeeds. 2. Accordingly, Ext.P3 is quashed and the second respondent is directed to grant reconstitution of the firm, M/s. WP(C) 29191/2007 2 Salkara Tourist Home, as requested in Ext.P1 application, if it is otherwise in order, without reference to the insertion of the aforesaid proviso. Let this be done within a period of three weeks from the date of receipt of a copy of this judgment. THOTTATHIL B RADHAKRISHNAN, JUDGE lgk/10/6 22ND JUNE, 2009 Spoke The judgment was delivered on 9.6.2009 in this writ petition quashing Ext.P3 and directing that Ext.P1 application for sanction to reconstitute the firm, M/s.Salkara Tourist Home be considered in accordance with the rules that held the field on 18.3.2007, the date of application. The said judgment was issued based on the pleading of fact in the counter affidavit that the application was filed on 18.3.2007. The proviso occuring at the foot of Rule 19 of Foreign Liquor Rules was inserted to be operative with effect from 1.4.2007. WP(C) 29191/2007 3 2. On the basis of the submissions made by the learned Government Pleader on 10.6.2009, I ordered this matter to be reconsidered to be spoken to as it was mentioned that in W.A.544 of 2008, the question as to whether an application for foreign liquor license is to be considered with reference to the date of application or the law that prevails on the date of consideration of the application was referred to the Full Bench for decision. Those decisions essentially deal with the grant of license while W.A.No.699 of 2008 referred to in the judgment in this case delivered on 9.6.2009 relates to the field of grant of previous sanction for transfer of license in terms of Rule 19 of the Foreign Liquor Rules. The concept of sale, transfer or....... in terms of Rule 19 is not legally the same as a fresh grant. Hence reconstitution of the partnership by addition or deletion of members in terms of Rule 19(2) of Foreign Liquor Rules is not a fresh grant but is something which is an occurrence in relation to a license already granted, which could be permitted to happen only with the previous sanction of the Excise Commissioner. Therefore the laws as to grant does not necessarily regulate the rules as to obtaining previous sanction for reconstitution of firm. WP(C) 29191/2007 4 While the State has the exclusive privilege and therefore the grant of sanction depends upon its volition as exercised in terms of the statutory provisions, the question of granting sanction to transfer a permit by reconstitution of partnership by the force of the deemed provision contained in Rule 19(2) of the Foreign Liquor Rules, cannot be left to be governed by the date of sanction. This is so because it is not the same as grant. Under the aforesaid circumstances, I do not find any reason to waive the judgment already issued by me on 9.6.2009. 22.6.2009 THOTTATHIL B RADHAKRISHNAN, JUDGE