IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 24TH FEBRUARY 2010 / 5TH PHALGUNA 1931 WP(C).No. 12329 of 2009(I) -------------------------- PETITIONER(S): ------------------ M/S.JOY'S THE BEACH RESORT PVT.LTD., CHOWARA P.O.,THIRUVANANTHAPURAM, REP.BY ITS MANAGING DIRECTOR, T.C.PAUL,AGED 56 YEARS, S/O.LATE K.C.CHACKO. BY ADV. SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW RESPONDENT(S): -------------------- 1. STATE OF KERALA, REP.BY SECRETARY,TAXES (A) DEPARTMENT, GOVT.SECRETARIAT,THIRUVANANTHAPURAM. 2. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM. 3. THE ASST.EXCISE COMMISSIONER, THIRUVANANTHAPURAM. 4. THE CIRCLE INSPECTOR OF EXCISE, NEYYATTINKARA,THIRUVANANTHAPURAM DISTRICT. 5. THE REGIONAL DIRECTOR (SOUTH), INDIAN TOURISM (CHENNAI), GOVERNMENT OF INDIA,SOUTHERN REGIONAL OFFICE, 154,ANNA SALAI,CHENNAI-600 002. 6. THE DIRECTOR,DEPARTMENT OF TOURISM, PARK VIEW,THIRUVANANTHAPURAM-695033. GOVERNMENT PLEADER SRI.V.MANU FOR R1-4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.12329/09 APPENDIX PETITIONER'S EXHIBITS EXT.P1: PHOTOCOPY OF THE STAR CLASSIFICATION ORDER DT 29.1.2003 ISSUED BY THE 5TH RESPONDENT. EXT.P2: PHOTOCOPY OF THE STAR CLASSIFICATION ORDER DT 17.1.2007 ISSUED BY THE 5TH RESPONDENT. EXT.P3: PHOTOCOPY OF THE LETTER DT 16.3.2004 ISSUED BY THE 5TH RESPONDENT. EXT.P4: PHOTOCOPY OF THE APPLICATION DT 20.4.2006 SUBMITTED TO THE 2ND RESPONDENT. EXT.P5: PHOTOCOPY OF THE LETTER DT 6.5.2006 ISSUED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT. EXT.P6: PHOTOCOPY OF THE APPLICATION DT 19.3.2007 SUBMITTED BEFORE THE 2ND RESPONDENT. EXT.P7: PHOTOCOPY OF THE ORDER DT 11.11.2008 PASSED BY THE 1ST RESPONDENT. EXT.P8: PHOTOCOPY OF THE STATEMENT FILED ON BEHALF OF THE 3RD RESPONDENT IN WPC NO.34765/2008 BEFORE THIS HON'BLE COURT. EXT.P9: PHOTOCOPY OF THE UDGMETN DT 17.12.2008 IN WPC NO.34765/2008 PASSED BY THIS HON'BLE COURT. EXT.P10: PHOTOCOPY OF THE LETTER 27.2.2009 ISSUED BY THE DIRECTOR, DEPARTMENT OF TOURISM TOT HE MANAGING DIRECTOR OF THE PETITIONER COMPANY. EXT.P11: PHOTOCOPY OF THE ORDER GO(RT) NO.300/09/TD DT 24.3.2009 PASSED BY THE 1ST RESPONDENT. EXT.P12: PHOTOCOPY OF THE ONE STAR EXPORT HOUSE CERTIFICATE DT 21.6.2005 ISSUED BY THE GOVT. OF INDIA, MINISTRY OF COMMERCE AND INDUSTRY. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 12329 OF 2009 (I) ===================== Dated this the 24th day of February, 2010 J U D G M E N T The prayer sought in the writ petition is to quash Exts.P7 and P11 whereby an application made by the petitioner for an FL 11 licence under the Foreign Liquor Rules was rejected. 2. Petitioner is a Company incorporated under the provisions of the Companies Act. According to the Company, it owns 14 Acres of land at Chowara near Kovalam in Thiruvananthapuram District, where it has established a Resort Hotel of Three Star classifiction with swimming pools, health club, ayurveda spa, library, indoor games and such other facilities. Exts.P1 and P2 are the star classification orders issued by the Regional Director (South) India Tourism, Chennai, of the Government of India, who is also the Convenor of the Hotel and Restaurant Approval and Classification Committee. These orders show M/s Travancore Heritage, the resort established by the petitioner Company, has been classified as a Three Star Hotel by Ext.P1 and was reclassified as such by Ext.P2 order, for a period of five years from 29/1/2007. Ext.P3 is a certificate issued by the WPC 12329/09 :2 : Regional Director to the effect that the three star classification order issued by their office to Travancore Heritage as per Exts.P1 and P2 pertains to M/s Joy's The Beach Resort Pvt. Ltd, the Company which has established the resort. 3. Petitioner states that by Ext.P4 dated 20th of April, 2006, they made an application to the 2nd respondent for a FL 11 licence for wine and beer parlour and that by Ext.P5, the application was recommended by the 3rd respondent. Coming to know that the 2nd respondent had sought certain clarifications from the Deputy Excise Commissioner, including as to whether the Resort is a separate establishment or an extended part of the Company, the petitioner submitted Ext.P6 to the 2nd respondent clarifying that the petitioner Company owns Travancore Heritage and that M/s Travancore Heritage and itself are the same entity. They also placed reliance on Exts.P1 to P3. 4. While the matter was pending without any progress, petitioner submitted representations to the Government complaining of delay in allowing the application made by them. Accordingly, their application was considered and the 1st respondent issued Ext.P7 order rejecting the application stating WPC 12329/09 :3 : that “the resort does not have the requisite classification certificate required for granting FL-11 licence as per the existing rules”. 5. Ext.P7 order was challenged before this Court in WP(C) No.34765/08. In that writ petition, Ext.P8 statement was filed by the respondents justifying Ext.P7. By Ext.P9 judgment, the writ petition was disposed of directing the Government to take a fresh decision in the matter after affording an opportunity of being heard to the petitioner. Accordingly, the petitioner was heard, and on that occasion, petitioner produced Ext.P10, a letter issued by the 6th respondent on 27/2/2009 to them, which reads as under: With reference to your letter dated 23/2/2009 and the Classification order issued by Southern Regional Office, India Tourism, Chennai and also the Certificate issued by Regional Director of India Tourism, I may inform the following; There is a legal entity Joy's The Beach Resort Pvt. Ltd which also runs a resort by name Travancore Heritage. The resort Travancore Heritage is wholly owned by JOY'S, the Beach Resort Pvt. Ltd. And has been awarded 3 star category by Government of India vide reference: INDTOUR/CHENNAI/HRACC/2006(KER)/592 dated 17/1/2007. However it may be noted that Travancore Heritage is only the marketing name (Brand Name) used by M/s.JOY'S, The Beach Resort Pvt. Ltd. and this has been clarified by the Certificate No.Indtour/Chennai HRACC/2003(K1:R)/214 dated 16.3.2004 by the Regional Director (South), India tourism (Chennai) Southern Regional Office, 154, Anna Salai, Chennai WPC 12329/09 :4 : 600002. In other words Government of India has already clarified that JOY'S The Beach Resort Pvt. Ltd. and Travancore Heritage are the same property and the classification issued by them to Travancore Heritage is for the property owned by JOY's The Beach Resort. Department of Tourism also endorses this position. Further in the opinion of Department of Tourism the application of M/s JOY's The Beach Resort Pvt. Ltd for FL-11 licence to be enjoyed by the property Travancore Heritage is recommended as the above is a premium Tourism property of the State. (emphasis supplied) 6. The matter was considered and Ext.P11 order was issued by the Government rejecting the application, the relevant portion of which reads as under: The Commissioner of Excise, Thiruvananthapuram, in his letter read as 2nd paper above, has reported that M/s.Joy's, the Beach Resort Pvt. Ltd, is located in an unobjectionable site. He has also reported that even though the Travancore Heritage and M/s.Joy's, The Beach Resort Pvt. Ltd, are owned by the same company, both are different units functioning in separate buildings. Travancore Heritage is functioning in building No.PK-VII/803 to 843 of Kottukal Grama Panchayat,and had three star classification and located in an objectionable site as there is a colony of SC/ST people, within 30 meters from this building. Joy's The Beach Resort is functioning in building No.PK-VI/1578 of Kottukal Grama Panchayat. The validity of the classification certificate issued in favour of Travancore Heritage expired on 29/1/2007. Both the units are separated by Chowara-Adimalathura Panchayat Road. M/s Joy's The Beach Resort Pvt. Ltd is situated in an unobjectionable site but it does not have star classification certificate for being eligible for FL-3/FL-11 licence. At present both the units are ineligible for FL-3/FL-11 licenses. Government have examined the arguments put WPC 12329/09 :5 : forward by the petitioner, at the time of the hearing, with regard to the report of the Excise Commissioner. It is found that even though M/s. Joy's, The Beach Resort Pvt. Ltd, the petitioner company, is situated in an unobjectionable site, it does not have valid star classification certificate of Government of India, which is mandatory for issuing FL-11 licence. Hence the request of the petitioner company, for FL-11 licence cannot be conceded to, and the same is, therefore, rejected by Government. (emphasis supplied) 7. It is on receipt of Ext.P11, this writ petition has been filed challenging Exts.P7 and P11. The contention raised by the counsel for the petitioner is that Joy's, The Beach Resort Private Ltd, is a Company incorporated under the provisions of the Companies Act, 1956, which has established resorts at different places. According to them, Travancore Heritage is one of the resorts established by the Company, and therefore, the authorities have misdirected themselves in proceeding on the basis that M/s Travancore Heritage and M/s Joy's, The Beach Resorts Private Ltd., are two different establishments. It is stated that Travancore Heritage is only a brand name adopted by the petitioner Company. On this basis, it is contended that since Travancore Heritage has been classified as a Three Star Hotel, they are entitled to have the FL-11 licence issued. 8. The respondents have filed a counter affidavit. The WPC 12329/09 :6 : thrust of the averments as contained in para 3 of the counter affidavit is that the petitioner Company has established two resorts, viz., the Travancore Heritage and M/s Joy's, The Beach Resorts Private Ltd. It is stated that both these establishments are separated by a public road, both have separate entries, that the building numbers are different and that the buildings were constructed on the basis of separate building permits issued by the Panchayat. It is stated that initially the Company had established Travancore Heritage in Building No.KP VIII/803 to 843 of Kottukal Grama Panchayat and it was this resort, which subsequently obtained three star classification. However, Travancore Heritage is situated in an objectionable site as a scheduled castes/scheduled tribes colony is located within 30 meters of the Resort. It is stated that on account of that reason, the application submitted by the petitioner for getting FL-11 licence was rejected. According to them, after the rejection of its application for FL-11 licence, petitioner constructed a new building and the resort functioning in this building is known as Joy's, The Beach Resort Pvt. Ltd and that though this Resort is situated in an unobjectionable site, it does not have Three Star WPC 12329/09 :7 : classification, and therefore, is ineligible for FL-11 licence. 9. From the facts as pleaded, it can be seen that while the petitioner Company contends that the establishment viz., Travancore Heritage is a Resort owned and established by it, according to the respondents, these are two units viz., the Travancore Heritage and M/s. Joy's, The Beach Resort Private Ltd. It is on this basis the impugned order was issued and resolution of this controversy will determine the fate of this writ petition. 10. Having considered the submissions made by the learned counsel for the petitioner and the learned Government Pleader for the respondents, I am inclined to think that the view taken by the respondents is erroneous. The petitioner Company has established the resort Travancore Heritage in its property at Chowara near Kovalam in Trivandrum District. Exts.P1, P2 and P3 show that the Travancore Heritage, the resort is owned by the petitioner and that it is this resort which has been classified as a three star hotel and that the classification is valid till 28/1/2012. The fact that it is the Company which has established the resort and that the whole establishment is one single unit is reaffirmed by the petitioner in Ext.P6. In Ext.P10 certificate issued by the 6th WPC 12329/09 :8 : respondent, an Officer of the State of Kerala itself, the plea raised by the petitioner that there is only one entity and the classification and other certification obtained by M/s Travancore Heritage pertains to the resort established by the petitioner is certified and the eligibility of the petitioner to obtain FL-11 licence is also recommended. 11. The whole argument of the respondents that there are two resorts as reflected in the counter affidavit is raised on the basis that at different points of time, different building permits were obtained by the petitioner Company from the Panchayat. In para 3 of the counter affidavit, it is stated that initially the petitioner Company started its Resort, Travancore Heritage, in Building Number KP VIII/803-843 of Kottukal Grama Panchayat. Even going by the counter filed, the building permit for constructing the building where the resort is functioning was obtained by Joy's, The Beach Resort Private Ltd., and therefore the resort was obviously established by the Company itself. Further averments in paragraph 3 of the counter affidavit itself show that the subsequent building permit was also obtained by the petitioner Company itself and it is the building constructed on WPC 12329/09 :9 : the strength of this permit, which is described as the Resort, Joy's, The Beach Resort Ltd. Apart from the contention that on both occassions, separate permits were obtained by the petitioner company, respondents have no case that the Company has obtained separate licences or other permits in different names viz., Travancore Heritage and Joy's, The Beach Resort Private Ltd from any of the authorities, which is a mandatory requirement for a running establishment. In my view, the facts pleaded in the counter affidavit itself abundantly prove that it is the petitioner company which has established the resort Travancore Heritage and there is no other resort or establishment as asserted by the respondents. Further, in the light of Exts.P1 and P2, the conclusion that the Three Star classification expired in 2007 is also incorrect. It may be true that a single establishment consists of separate buildings, which may even be separated by a road but that does not alter the singular character of the establishment. Therefore, the resort, Travancore Heritage is the resort established by the petitioner Company and the reasoning adopted in Ext.P11 that there are two establishments cannot be sustained. 12. Another objection raised by the respondents is that the WPC 12329/09 :10 : resort is situated within the prohibited distance from SC/ST colony. This certainly requires assessment of the factual details, which cannot, in the absence of sufficient materials, be undertaken in this proceedings, and is a matter for the respondents to verify in terms of the provisions contained in Rule 13 of the Foreign Liquor Rules and pass appropriate orders in the matter. 13. Therefore, I quash Exts.P7 and P11. Respondents are directed to reconsider Ext.P4 application made by the petitioner for the issue of FL-11 licence treating the resort, Travancore Heritage established by the petitioner company as a single unit. It is clarified that it will be open to the respondents to assess whether the resort in question meets the standards including the distance rule, laid down for the grant of FL-11 licence under the Foreign Liquor Rules. Orders as above, shall be passed, as expeditiously as possible, at any rate within 6 weeks of production of a copy of this judgment. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp