IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 28TH JANUARY 2008 / 8TH MAGHA 1929 WP(C).No. 2708 of 2007(V) ------------------------- PETITIONER: ------------ M/S.KANDATH DISTILLERIES, S.N.BUILDING, G.B.ROAD, PALAKKAD, REPRESENTED BY ITS MANAGING PARTNER K.S.KRISHNADAS. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENTS: ----------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY TO GOVERNMENT, TAXES (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE COMMISSIONER OF EXCISE, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM. 4. THE JOINT COMMISSIONER OF EXCISE, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM. R1 TO R4 BY GOVERNMENT PLEADER SRI.P.K.RAVIKRISHNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No.2708/2007 2 APPENDIX PETITIONERS EXHIBITS: EXT.P1: COPY OF THE APPLICATION GIVEN BY THE PETITIONER DATED 12.1.1987. EXT.P2: COPY OF THE COMMUNICATION NO.XC 3-32739/93/L.DIS DATED 28.6.1994. EXT.P3: COPY OF THE JUDGMENT OF THE SUPREME COURT IN W.P.(C). No.322 OF 1996. EXT.P4: COPY OF THE G.O.(RT) No.479/98/TD DATED 18.8.1998. EXT.P5: COPY OF THE G.O.(RT)No.291/98/TD DATED 20.5.1998. EXT.P6: COPY OF THE G.O.(RT).No.547/98/TD DATED 20.9.1998. EXT.P7: COPY OF THE G.O.(RT) No. 448/98/TD DATED 6.8.1998. EXT.P8: COPY OF THE REPRESENTATION GIVEN BY THE PETITIONER TO THE MINISTER FOR EXCISE ON 21.11.1998. EXT.P9: COPY OF THE COMMUNICATION NO.XC3-21101/99 DATED 11.11.1999. EXT.P10: COPY OF THE G.O.(RT) No.689/99/TD DATED 29.9.1999. EXT.P11: COPY OF THE JUDGMENT IN O.P.No.7727/2000 DATED 23.6.2004. EXT.P12: COPY OF THE COMMUNICATION NO.XC3-25994/04 DATED 8.12.2004. EXT.P13: COPY OF THE REPRESENTATION GIVEN BY THE PETITIONER TO THE MINISTER FOR EXCISE DATED 20.2.2005. EXT.P14: COPY OF THE COMMUNICATION NO.4493/G3/2005/TD DATED 1.9.2005. EXT.P15: COPY OF THE JUDGMENT IN W.P.(C).No.29092/2005 DATED 25.1.2006. EXT.P16: COPY OF THE G.O.(RT) NO.158/06/TD DATED 16.3.2006. EXT.P17: COPY OF THE ORDER IN COC No.521/06 DATED 29.6.2006. W.P.(C).No.2708/2007 3 EXT.P18: COPY OF THE AFFIDAVIT FILED IN COC No.521/2006 ON 18.7.2006. EXT.P19: COPY OF THE G.O.(Rt.) No.435/06/TD DATED 17.7.2006. EXT.P20: COPY OF THE JUDGMENT IN COC No.521/2006 DATED 12.9.2006. EXT.P21: COPY OF THE G.O.(Rt.) No.608/06/TD DATED 11.10.2006. EXT.P22: COPY OF THE JUDGMENT IN COC No.1385/2006 DATED 5.1.2007. TRUE COPY P.A.TO JUDGE THOTTATHIL B.RADHAKRISHNAN,J ======================= W.P.(C).No.2708 of 2007 =========================== Dated this the 28th day of January, 2008 JUDGMENT The question whether the petitioner's application for grant of licence of a blending unit under the Foreign Liquor (Compounding, Blending and Bottling) Rules, 1975, fell for consideration repeatedly before this Court, and by the judgments issued, the parties are concluded on the issue that the petitioner's application has to be considered complying the law and policy and conditions that prevailed in 1998. Following Ext.P11 judgment, Ext.P15 was issued setting aside the subsequent decision of the Government. Different procedures were carried out before this Court including under the Contempt of Courts Act, which ultimately lead to the impugned decision Ext.P21, the Government taking the stand that in terms of some provisions of the partnership deed of the petitioner, the application put in on 12.11.1987 cannot be treated as on by the firm since, according to the Government, by virtue of clause 3 of the partnership deed, the firm came into existence only on 10.4.1991. W.P.(C).No.2708/2007 2 2. The genesis of a firm, constitution and other matters may call for adjudication. It may also have to be considered as to who represents the firm at the particular point of time. Repeated judgments of this Court directed consideration of licence of running M/s. Kandath Distillery complying the law, policy and conditions that prevailed in 1998. No question as to whether there was an application as on that date would continue to survive for further consideration or dispute. This Court issued the directions on the basis that appropriate application was available and it was such application that was directed to be disposed of. This means that the Government are not entitled to raise any question as the sustainability of the application for permit. That could cause disobedience of the directions to take the application of consideration applying the conditions, policy and law that prevailed in 1998. For this reason, the impugned Ext.P21 is not sustainable. 3. No reason other than the constitution of the firm and date of its effect is stated in Ext.P21 for refusing the licence. This means that there is no other ground found by the W.P.(C).No.2708/2007 3 Government to refuse licence. Hence, petitioner is entitled to licence on the basis of Ext.P1 application. 4. In the result, Ext.P21 is quashed and it is directed that the petitioner shall be granted licence acting on Ext.P1, in terms of the conditions, policy and law that prevailed in 1998. Necessary action shall be taken within an outer limit of two months from the date of receipt of a copy of this judgment. The writ petition is allowed. THOTTATHIL B.RADHAKRISHNAN, JUDGE dvs