IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 7TH DECEMBER 2010 / 16TH AGRAHAYANA 1932 WP(C).No. 33540 of 2010(N) -------------------------- PETITIONER(S): --------------- VADAKKE PURAYIL PRADEEP KUMAR, GENERAL MANAGER, HOTEL C MOUNT RESIDENCY, MATTALAYI, CHERUVATHUR, HOSDURG, KASARAGODE DIST. BY ADV. SRI.M.K.DAMODARAN, SENIOR ADVOCATE SRI.O.V.MANIPRASAD RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, EXCISE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2. THE EXCISE COMMISSIONER, THIRUVANANTHAPURAM - 6 95 001. 3. THE DEPUTY EXCISE COMMISSIONER, KASARAGOD, PIN - 671 121. 4. THE ASSISTANT EXCISE COMMISSIONER, KASARAGOD, PIN - 671 127. MR.V.MANU, GOVERNMENT PLEADER FOR R1-4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.33540/2010 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF CERTIFICATE DATED 04/04/2007 ISSUED BY THE INDIA TOURISM, GOVT. OF INDIA, SOUTHERN REGIONAL OFFICE, CHENNAI TO THE PETITIONER. P2 : COPY OF APPLICATION DATED 09/07/2010 SUBMITTED BY THE PETITIONER FOR FL3 LICENCE. P3 : COPY OF CONSENT TO OPERATE CERTIFICATE ISSUED BY THE POLLUTION CONROL BOARD TO THE PETITIONER. P4 : COPY OF SKETCH PREPARED BY THE VILLAGE OFFICER, PILICODE. P5 : COPY OF LICENSE ISSUED BY THE POLICODE GRAMA PANCHAYAT TO THE PETITIONER. P6 : COPY OF CLEARANCE CERTIFICATE ISSUED BY THE CIRCLE INSPECTOR OF EXCISE, HOSDURG TO THE PETITIONER. P7 : COPY OF ORDER DATED 18/10/2010 ISSUED BY 3RD RESPONDENT. P8 : COPY OF COMMON JUDGMENT DATED 18/10/1993 IN WRIT APPEAL NO.1220/1993 AND OP NO,10334/1993 OF THIS HONOURABLE COURT. RESPONDENT'S EXHIBITS R3(a) : COPY OF ORDER NO.XCI.19915/2007/K.DIS DATED 24/10/2007 OF THE COMMISSIONER OF EXCISE. //TRUE COPY// PA TO JUDGE. jg P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 33540 OF 2010 -------------------------- Dated this the 7th day of December, 2010 J U D G M E N T The petitioner is a hotelier. After obtaining 3 star classification from the Government of India, vide Ext.P1 order dated 4.4.2007, the petitioner submitted Ext.P2 application dated 9.7.2010 for the grant of an FL-3 licence for his hotel. The said application was rejected by the Deputy Commissioner of Excise, Kasaragod and the decision communicated to the petitioner by Ext.P7 letter dated 18.10.2010. Ext.P7 is under challenge in this writ petition. 2. The main ground raised is that the Deputy Commissioner of Excise is not an authority competent to take a decision on Ext.P2 and that on the terms of rule 13B of the Foreign Liquor Rules, 1972 the authority competent to take a decision on Ext.P2 application is the Commissioner of Excise. The petitioner has also raised various other contentions. The third respondent has filed a counter affidavit wherein it is stated that an earlier application submitted by the petitioner was rejected by Ext.R3(a) order dated 24.10.2007 on the ground that the hotel is situated within the prohibited distance from an educational institution. The third respondent has also raised WPC No.33540/2010 2 various contentions in answer to the other contentions raised by the petitioner in the writ petition. 3. Rule 13B of the Foreign Liquor Rules 1972 stipulates that any person desirous of obtaining a licence may apply to the Commissioner in writing through the Assistant Excise Commissioner of the District concerned. On the terms of the rules, the authority competent to pass orders on Ext.P2 application is the Commissioner of Excise. There is no provision in the Foreign Liquor Rules or the Abkari Act which empowers the Deputy Commissioner of Excise to pass final orders on an application for FL-3 licence. In such circumstances, I am of the opinion that the decision of the Deputy Commissioner of Excise, evidenced by Ext.P7 cannot be sustained. I accordingly allow the writ petition, quash Ext.P7 and direct the third respondent to forward the original of Ext.P2 application together with the connected files and the accompanying records to the Commissioner of Excise, Thiruvananthapuram within two weeks from the date of receipt of a certified copy of this judgment. The Commissioner of Excise shall thereupon consider the application after taking note of the various contentions raised by the petitioner in the writ petition and also having regard to the views expressed by the WPC No.33540/2010 3 Deputy Commissioner of Excise. The Commissioner of Excise shall also afford the petitioner or his authorised representative an opportunity of being heard. It will be open to the petitioner to submit a detailed representation before the Commissioner of Excise setting out the various contentions raised in the writ petition. I make it clear that I have not expressed any opinion on the merits of the contentions raised by the petitioner and that the Commissioner of Excise will be free to consider the same and take a decision thereon in the light of the relevant statutory provisions and the law laid down by this Court. P.N.RAVINDRAN, (JUDGE) vps WPC No.33540/2010 4 WPC No.33540/2010 5