IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 9TH AUGUST 2011 / 18TH SRAVANA 1933 WA.No. 1028 of 2011() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.10624/2011 Dated 01/04/2011 .................... APPELLANT/ THIRD PARTY ------------------------- KALARIKKAL HOTELS PRIVATE LIMITED, REGISTERED OFFICE: SKYLINE PEEVEES TRITON, MARINE DRIVE, KOCHI-682031, REP. BY ITS DIRECTOR. BY ADV. SRI.C.C.THOMAS, SENIOR ADVOCATE SRI.K.JAJU BABU RESPONDENTS/ PETITIONER ------------------------- 1. KERALA STATE BEVERAGES CORPORATION, (K.S.B.C. IN SHORT), REP. BY THE MANAGER, WARE HOUSE, TRIPUNITHURA-682301. 2. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, TAXES (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 3. THE COMMISSIONER OF EXCISE, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM-695033. 4. THE DEPUTY COMMISSIONER OF EXCISE, THRISSUR-680005. ADV. DR.K.P.SATHEESAN FOR R1 SRI.M.R.JAYAPRASAD FOR R1 SRI.P.MOHANDAS (ERNAKULAM) FOR R1 SRI.MATHEW SUNNY FOR R1 SRI.ANOOP.V.NAIR FOR R1 SRI.P.C.IYPE, ADDL. ADVOCATE GENERAL GOVERNMENT PLEADER, GEORGE MECHERIL THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 09/08/2011, ALONG WITH WA NO. 1029 OF 2011, WA NO. 1030 OF 2011, WPC NO. 10599 OF 2011, WPC NO. 10600 OF 2011, WPC NO. 10615 OF 2011 & WPC NO. 10624 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A.NO.1028/2011 APPENDIX ANNEXURE-A: COPY OF ORDER DT.2.5.2011 IN SPECIAL LEAVE PETITION (CIVIL) NO.10791/2011 OF THE HON'BLE SUPREME COURT OF INDIA. //TRUE COPY// PA TO JUDGE C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. ------------------------------------------ W.A.Nos.1028, 1029 & 1030 OF 2011 & W.P.(C) Nos.10599, 10600, 10615 & 10624 OF 2011 ------------------------------------------- Dated this the 9th day of August, 2011 J U D G M E N T ~~~~~~~~~~~ C.N.Ramachandran Nair, J. The common appellant in the three Writ Appeals is an applicant for grant of FL-3 bar licence in the three star hotel constructed at Guruvayoor. The Government took a policy decision not to issue licence based on objections raised by Guruvayoor Devaswom and certain organisations. However, when the matter came up before this Court through a detailed judgment in W.A.No.1312/2010 dated 25.1.2011 reported in Kalarikkal Hotels (P) Ltd. v. State of Kerala [2011(1)KLT 966], this Court directed the Government first to decide whether Guruvayoor should be made a liquour free zone and if so to discontinue renewal of licence to the three existing bar hotels and the retail liquour shop run by the Kerala Government's W.A.1028/2011 etc. 2 company. Even though judgment was pronounced as early as on 25.1.2011 with direction to the Government to take decision before commencement of the financial year 2011-2012. Government, instead of considering the matter in terms of the judgment, challenged our judgment in SLP filed before the Hon'ble Supreme Court. The Hon'ble Supreme Court has only issued notice in the matter and no stay is granted against the operation of the judgment. While so, the three other bar hotels and the Government's company filed the above Writ Petitions in this Court for direction to the Government to renew the licence. Based on the interim order issued by the learned Single Judge, licence to all the three bar hotels and the Government company are renewed for 2011-2012. The Government has not challenged the interim orders issued by the learned Single Judge and quietly obliged the beneficiaries by renewing their licences. In other other words, discrimination is self evident from the conduct of the Government by permitting liquor sale in Guruvayoor town while denying it to the appellant alone which is also a star hotel. We passed a common interim order directing the Government to issue licence to the appellant also subject to the result of the SLP W.A.1028/2011 etc. 3 pending before the Hon'ble Supreme Court. However, Government has not passed any orders as of now. The Writ Appeals are filed under leave and when Writ Appeals came up for hearing before us we ordered posting of the W.P.(C) filed by the 1st respondent in the Writ Appeals for disposal along with Writ Appeals because once W.As are disposed of on merits, the W.P.(C) will become infructuous. 2. The entire issues raised by the appellant for eligibility for bar licence was discussed in our judgment which is pending in appeal before the Supreme Court. Therefore, we do not want to go into the very same questions again in these cases. What we have held is that if liquor sale is permitted in an area, there should not be discrimination among equally qualified persons. The State has no case that the appellant, a star hotel, is not entitled for any reason to get licence and their entitlement is not under dispute at all. However, the State has now violated our judgment by issuing licence to other Bar Hotels and the Government Company and at the same time denied licence to the appellant. The objection ground based on which licence is not so far issued to the appellant does not survive because the non W.A.1028/2011 etc. 4 issuance of licence to the appellant has not served stoppage of liquor sale in Guruvayoor. Like any other town liquor sale is thriving in Guruvayoor because four retail outlets, three Bar Hotels and the Government Company's shop are licenced to continue liquour business in the retail sale shop maintained by them at Guruvayoor. Therefore, what the Government has achieved is the monopoly of liquor sale at the hands of the company run by it and the three other Bar Hotel. If the Division Bench judgment of this Court was implemented by the Government, they would have issued licence to the appellant and renewed licence to others or declined licence to all. Since our judgment is not stayed by the Supreme Court and since licence is renewed to other three hotels and the liquor shop run by Beverages Corporation, we feel appellant is also entitled to a licence subject to judgment of the Supreme Court in the SLP pending. We therefore, allow these Writ Appeals by modifying the interim order issued by the learned Single Judge directing the State Government and the Excise Commissioner to provisionally issue FL-3 licence subject to compliance of formalities to the appellant on or before 20.8.2011 and the W.A.1028/2011 etc. 5 issuance of licence to the appellant will be subject to the order/ judgment of the Hon'ble Supreme Court in the SLP filed by the State. 3. So far as Writ petitions are concerned the reliefs sought is only for renewal of licence for all those petitioners and pursuant to interim orders Government has renewed the licence. Since Government has not passed any orders pursuant to our judgment above referred, renewal of licence granted to the petitioners also will be subject to the Division Bench judgment as modified or confirmed by the Hon'ble Supreme Court in the pending SLP. 4. Writ Appeals and Writ Petitions are disposed of as above. 5. If licene is not issued to the appellant on complying with the formalities including payent of licence fee within the time stipulated above, the Principal Secretary to Government (Taxes department) and the Excise Commissioner both will appear in person in this Court on 22.8.2011 and explain why contempt action should not be initiated against them. Government Pleader will communicate this order to both W.A.1028/2011 etc. 6 the Principal Secretary to Government and the Excise Commissioner for compliance as above. (C.N.RAMACHANDRAN NAIR, JUDGE) ( P.S.GOPINATHAN, JUDGE) ps/10/8