IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 2ND JANUARY 2008 / 12TH POUSHA 1929 OP.No. 17891 of 2000(E) ----------------------- PETITIONER: ------------------- S.AMBIKA, SAJEEV BHAVAN, KOTTUKAL, NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADV. SRI.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD SRI.N.V.AJAYAKUMAR SRI.K.K.RAJEEV SRI.S.VIBHEESHANAN RESPONDENTS: ---------------------- 1. STATE OF KERALA, REP.BY SECRETARY TO GOVERNMENT (TAXES), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. COMMISSIONER OF EXCISE, EXCISE COMMISSIONERATE, THIRUVANANTHAPURAM. 3. ASSISTANT EXCISE COMMISSIONER, THIRUVANANTHAPURAM. BY G.P.SMT.M.K.PUSHPALATHA. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 02/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXTS: EXT.P1- TRUE COPY OF THE COMMUNICATION ISSUED TO THE PETITIONER DATED 13-2- 1993 BY THE SECRETARY, BOARD OF REVENUE (EXCISE). EXT.P2- TRUE COPY OF THE APPEAL FILED BY THE PETITIONER DATED 8-11-1993. EXT.P3- TRUE COPY OF THE ORDER GO(RT)NO.389/2000/TD DATED 2-6-2000. EXT.P4- TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN O.P.NO.3455/96 DATED 6-4-1998. EXT.P5- TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN O.P.No.18145/94 DATED 2-12-1999. EXT.P6- TRUE COPY OF THE ORDER G.O.(RT)NO.620/2005/TD DATED 4-10-2005. EXT.P7- TRUE COPY OF THE ORDER NO.XC7-25260/99 DATED 21-12-1999 ISSUED BY THE SECOND RESPONDENT. EXT.P8- TRUE COPY OF THE ORDER NO.XC7-30572/03 DATED 17-12-2003 ISSUED BY THE SECOND RESPONDENT. EXT.P9- TRUE COPY OF THE ORDER NO.XC7-17177/01 DATED 3-6-2005 ISSUED BY THE SECOND RESPONDENT. EXT.P10- TRUE COPY OF THE ORDER NO.XC7-12272/04 DATED 7-4-2006 ISSUED BY THE SECOND RESPONDENT. EXT.P11- TRUE COPY OF THE ORDER NO.XC1-8727/06 DATED 14-2-2007 ISSUED BY THE SECOND RESPONDENT. EXT.P12- TRUE COPY OF THE JUDGMENT DATED 8-3-2007 IN WP(C)NO.29242/2005. Thottathil B. Radhakrishnan, J. ================================== O.P.No.17891 of 2000 ================================== Dated this the 2nd day of January, 2008. JUDGMENT Petitioner challenges Ext.P3 whereby her application for FL-3 licence has been refused. 2. Going by the counter affidavit sworn to on 10-2-2003 by the Under Secretary to the Government, on behalf of the first respondent, the petitioner had submitted her application for FL-3 licence to Hotel Padma Tourist Home on 18-6-1992 and that application was submitted through proper channel and after enquiry it was forwarded to the Assistant Excise Commissioner and later to the Commissioner of Excise. It appears that before the Commissioner had passed orders on the basis of the materials that were available on that file, abkari policy was O.P.17891/2000 -:2:- changed from 9-11-1992. However, it is not disputed that in terms of the law that prevailed on 18-6-1992, the petitioner was entitled to FL-3 licence for her hotel. 3. Having constructed the building for the purpose of that Tourist Home, the petitioner was permitted shifting of another licence to house a bar in that hotel. Thus, as of now, there is a bar in the hotel. But the fact remains that her application for licence to Hotel Padma Tourist Home was rejected. Going by the counter affidavit, the only plea is that the Commissioner could not issue orders because of change of policy. As held by me in WP(C)No.29242 of 2005, after adverting to the decision of the Apex Court in Kuldeep Singh v. Govt. of NCT of Delhi[(2006) 5 S.C.C.702] and O.P.17891/2000 -:3:- that of this Court in B.Six Holiday Resorts (P) Ltd. v. State of Kerala (2002 (2) KLJ 941), consideration of grant of privilege has to be in terms of law thereby meaning that the Foreign Liquor Rules were relevant at the time of application. 4. Since it is the definite case of the respondents that the application of the petitioner was not granted by the Commissioner only on account of change of policy, it goes without saying that applying the law, the petitioner's application for FL-3 licence ought to be considered. 5. In the result, Ext.P3 is quashed and it is directed that the application of the petitioner for FL-3 licence, as applied for by O.P.17891/2000 -:4:- her on 18-6-1992 shall be taken up, considered and disposed of within an outer limit of two months from the date of receipt of a copy of this judgment applying the law as it stood on 18-6-1992. Petitioner will also be at liberty to seek to shiftback the licence which she presently holds, in terms of law as was applicable at the time when shifting was originally permitted. Writ petition is disposed of in the above terms. Thottathil B.Radhakrishnan, Judge. sl. O.P.17891/2000 -:5:- Thottathil B. Radhakrishnan, J. ================================== O.P.No.17891 of 2000 ================================== JUDGMENT Dated:2-1-2008