IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 10TH FEBRUARY 2010 / 21ST MAGHA 1931 WP(C).No. 13455 of 2006(B) -------------------------- PETITIONER(S): --------------- THE MANAGING DIRECTOR, KANICHAI HOTELS (P)LTD, EAST FORT, THIRUVANANTHAPURAM, REP. BY REJI VARGHESE. BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE EXCISE COMMISSIONER, THIRUVANANTHAPURAM. 3. THE ASSISTANT EXCISE COMMISSIONER, THIRUVANANTHAPURAM. 4. THE CIRCLE INSPECTOR OF EXCISE, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.V.MANU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 13455 of 2006 APPENDIX EXHIBITS EXT.P1- TRUE COPY OF FL-3 LICENCE ISSUED IN FAVOUR OF THE PETITIONER'S HOTEL IN THE YEAR 1981 EXT.P2- TRUE COPY OF COMPLAINT DATED 20.12.04 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT EXT.P3- TRUE COPY OF THE NOTICE DATED 20.12.04 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER EXT.P4- TRUE COPY OF REPLY DATED 23.12.04 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT EXT.P5- TRUE COPY OF THE NOTICE DATED 25.1.05 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER EXT.P6- TRUE COPY OF REPLY DATED 14.2.05 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT EXT.P7- TRUE COPY OF THE JUDGMENT DATED 4.4.06 IN W.P.(C).10139 OF 2006 OF THIS HONOURABLE COURT EXT.P8- TRUE COPY OF THE ORDER BEARING NO.XC7-36280/04 DATED 20.4.06 ISSUED BY THE 2ND RESPONDENT (TRUE COPY) P.A TO JUDGE ANTONY DOMINIC, J. ------------------ WP(C) No. 13455 of 2006 -------------------------- Dated, this the 10th day of February, 2010 JUDGMENT 1. The challenge in the writ petition is against Ext.P8, an order passed by the Commissioner of Excise levying a fine of Rs.10,000/- on the petitioner alleging that the petitioner had violated Rule 16 of the Foreign Liquor Rules(in short 'the Rules') and the conditions in FL-3 licence. 2. Although the petitioner has made various allegations against respondents 3 and 4, it is unnecessary to go into such factual issues. 3. Petitioner Company owns a Four Star hotel by name “Hotel Luciya” at Thiruvananthapuram. Ext.P1 is the FL-3 licence issued to the hotel. They were issued Ext.P3 notice where the 3rd respondent alleged that the petitioner had undertaken major alterations to the licensed premises without obtaining prior sanction from the Commissioner of Excise. On receipt of the notice, petitioner W.P.(C).13455/06 2 submitted Ext.P4 reply stating that to their knowledge, no permission is required for repair work, which they had undertaken and that as long as they had not made any alteration to the licenced premises in which the bar is situated, the respondents had no authority to direct them to stop the work. 4. Thereafter, the Excise Commissioner issued Ext.P5 notice alleging that unauthorised construction work was going on in the licenced premises of hotel Luciya without obtaining prior permission. Petitioner was therefore directed to show cause why they should not be proceeded against under Rule 34(ii) of the Rules read with Section 26(b) of the Abkari Act. In this notice, the petitioner is alleged to have violated Rule 13B(3) read with Rule 34 of the Rules. Again petitioner submitted Ext.P6 reply reiterating that they did not make any alteration to the bar, which, according to them, is in the licenced premises. It was also contended that Rule 13B(3) relied on in Ext.P5 was irrelevant in the context. Finally, by Ext.P8, on the allegation that the petitioner had violated Rule 16 of the Rules, a fine of Rs.10,000/- was imposed on the petitioner. It is W.P.(C).13455/06 3 this order which is under challenge in this writ petition. 5. The first contention raised by the learned senior counsel for the petitioner is that in the absence of any alteration undertaken in the licenced premises scheduled in Ext.P1 licence, there cannot be any proceedings against the petitioner. It is also contended that Rule 16 of the Rules was invoked in Ext.P8 without putting the petitioner on notice and that at any rate, Rule 16 of the Rules relied on in Ext.P8 is inapplicable and is irrelevant. 6. On the other hand, learned Government Pleader referred me to the counter affidavit and submitted that although Ext.P1 licence was issued to the bar room which is scheduled in the licence itself, subsequently rules have undergone change, and that when proceedings were initiated against the petitioner, it is the hotel which is in the licenced premises. It is contended that the petitioner having admittedly undertaken alteration work in the hotel, proceedings against the petitioner cannot be faulted. W.P.(C).13455/06 4 7. I have considered the submissions made. 8. Proviso to Rule 13B(3) provides that there shall be no change in the nature, content or scope of the licence or the premises. Therefore, if there is a change in the premises, this Rule is applicable. The licence is granted in respect of the premises and such licenced premises is also included in the schedule attached to FL-3 licence granted to the licensee. Insofar as the petitioner is concerned, Ext.P1 is the licence and the boundaries of the licenced premises, is also indicated in the licence. Premises so scheduled in the licence is only the bar room in the petitioner's hotel and not the hotel itself. Even according to the respondents, there is no case that the petitioner had undertaken any work in the bar room, scheduled in the licence in which event only petitioner could have been proceeded against on the allegation of having violated Rule 13B(3) of the Rules. 9. The further question is whether Rule 16, which is invoked against the petitioner in Ext.P8 order has any relevance. Rule 16 of W.P.(C).13455/06 5 the Rules provides that no premises shall be used for the sale or possession or use of liquor unless they have been approved by the Excise Commissioner. There is no allegation that the petitioner has used any unlicenced premises for possession and use of liquor. If that be so, Rule 16 can be of no relevance insofar as the case against the petitioner is concerned. 10. In view of the aforesaid reasons, I am unable to sustain Ext.P8 order. Accordingly, Ext.P8 will stand quashed. Writ petition is disposed of as above. ANTONY DOMINIC, Judge mrcs