IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 2ND APRIL 2008 / 13TH CHAITHRA 1930 W.A.No.777 of 2008 ------------------------------------------- AGAINST THE INTERIM ORDER IN W.P.(C).NO.10573/2008 DATED 31/03/2008 .................... APPELLANTS/PETITIONERS:- -------------------------------------------- 1. M.ABDUL HAMEED, S/O. LATE N.K.MOHAMMED, "BISMILLAH MANZIL", KALOOR, ERNAKULAM DISTRICT, KOCHI - 682 017. 2. DR.C.H.NAZEEM, W/O. MOHAMMED NAVAS, "BISMILLAH MANZIL", KALOOR, ERNAKULAM DISTRICT, KOCHI - 682 017. 3. C.H.SHAMEEM, S/O. M.ABDUL HAMEED, PERMANANT RESIDENT OF "BISMILLAH MANZIL", KALOOR, ERNAKULAM DISTRICT, KOCHI - 682 017. REPRESENTED BY HIS POWER OF ATTORNEY HOLDER - M.ABDUL HAMEED. BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN RESPONDENTS/RESPONDENTS 1 TO 4 & ADDITIONAL 5TH RESPONDENT:- ----------------------------------------------------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, EXCISE DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHPAURAM. 2. THE COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. 3. THE ASSISTANT EXCISE COMMISSIONER, ERNAKULAM. W.A.NO.777 OF 2008. - 2 - 4. MRS. M.P.JAYASREE, W/O. K.P.DAMODARAN NAIR, RESIDING AT “SABARI", XXXV/1872, SOUTH JANATHA ROAD, PALARIVATTOM, KOCHI - 682 025, MANAGING PARTNER, M/S. MAY FAIR HOTEL, N.H.BYE-PASS ROAD, VENNALA P.O., PALARIVATTOM, COCHIN - 682 028, ERNAKULAM DISTRICT 5. LILLY JOSE, W/O.K.K.JOSE, KARALATHUKARAN HOUSE, ADVOACTE, EASWARAIYER ROAD, ERNAKULAM, CALICUT-35. R1 TO R3 BY SENIOR GOVERNMENT PLEADER SMT.K.MEERA. R4 BY ADVOCATE SRI.A.K.CHINNAN. R5 BY ADVOICATE SRI.N.RAGHURAJ. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 02/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.Dattu, C.J. & K.M.Joseph, J. ---------------------------------------------- W.A.No.777 of 2008 ---------------------------------------------- Dated, this the 2nd day of April, 2008 JUDGMENT K.M.Joseph,J. The appellants are the writ petitioners. The appellants approached this Court seeking a writ of mandamus directing respondents 1 to 3 to ensure that no renewal of FL-3 Licence is granted to the 4th respondent without obtaining the written consent of the landlords and to cancel the renewal, if the licence has already been renewed. He also sought a declaration that written consent of the landlord is necessary for renewal of any licence of permission under the Abkari Act and the Rules framed thereunder, if the business is conducting in a rented premises. 2. The appellants also sought for an interim relief not to renew the FL-3 Licence granted to the 4th respondent and bearing No.98/2006-07. The learned Single Judge has granted interim stay of the actual issuance of the licence. Thereafter, when the matter came up for hearing, the learned Single Judge has proceeded to take note of Exhibit R4(d) judgment of this Court, which holds that consent of the landlord is not necessary for renewal of FL-3 licence, and expressed his disinclination to continue the stay order. Accordingly, the interim order granted earlier was vacated. Being aggrieved by the aforesaid order, the writ petitioners are before us in this appeal. 3. We heard Sri.M.S.Narayanan, learned counsel appearing for the appellants. 4. The learned counsel appearing for the appellants contended that in view of Section 64A of the Abkari Act, the appellants as landlords of the W.A.No.777 of 2008 - 2 - tenanted premises have to face criminal proceedings if there is any contravention of the law by the licensee. It is his case that under the said provision, unlike in the case of an ordinary criminal prosecution under Section 64A of the Abkari Act the burden of proof is on the landlord. He further contends that though it is true that the lease was after the insertion of Section 64A of the Act, recently it was discovered that two employees of the licensee were convicted by the Sessions Court for the offences under the Abkari Act. He would submit that invoking Section 64A of the Act, the landlord would also become liable for prosecution. He submits further that there was an earlier round of litigation in which the licensee had approached this Court and the said writ petition was being contested and while that writ petition was pending, there was a communication issued by the Commissioner taking the view that consent of the landlord is not necessary for the renewal of the licence if the business is being conducted in a tenanted premises and on the strength of the aforesaid communication, the licensee withdrew the writ petition and ultimately it was in such circumstances that the appellants, who were contesting the matter, were constrained to file the present writ petition and obtain the interim order. Therefore, the learned counsel would submit that grave prejudice is caused to the appellants by the impugned order, by which the bar against the issuance of the licence was lifted. 5. It cannot be disputed that the learned Single Judge has taken note of Exhibit R4(d) judgment of another learned Single Judge. In that judgment, the learned Single Judge took the view that, for renewal of the licence under the Abkari Act, consent of the landlord is not necessary. It is in such circumstances that the learned Single Judge, apparently in agreement with Exhibit R4(d) judgment, took the view that the interim order granted earlier need not be continued. We find no error in the order passed by the learned Single Judge, W.A.No.777 of 2008 - 3 - which would call for our interference in Writ Appeal. We make it clear that we have not expressed any opinion on the merits of the case. We leave open all the contentions of the appellants. Accordingly, we dismiss the Writ Appeal. 6. However, in the event of the appellants moving the learned Single Judge for out of turn hearing, we request the learned Single Judge to consider the same in accordance with law. H.L.Dattu Chief Justice K.M.Joseph vku/- Judge