IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 WP(C).No. 20609 of 2011(A) -------------------------- PETITIONER: --------------- SAGARA BEACH RESORTS LIGHT HOUSE BEACH ROAD, KOVALAM, VIZHINJAM P.O.,THIRUVANANTHAPURAM-695523, REP.BY ITS MANAGING PARTNER, R.SISUPALAN, AGED 47 YEARS, S/O.K.RAVEENDRAN BY ADV. MR.C.C.THOMAS, SENIOR ADVOCATE MR.NIREESH MATHEW MR.M.G.KARTHIKEYAN RESPONDENTS: --------------- 1. STATE OF KERALA REP.BY SECRETARY, TAXES (A)DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM 2. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM 3. THE DEPUTY COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM 4. THE CIRCLE INSPECTOR OF EXCISE, NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT GOVERNMENT PLEADER FOR R1 TO R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 20609 of 2011(A) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: STAR CLASSIFICATION CERTIFICATE DTD. 14.6.2010 ISSUED BY THE INDIAN TOURISM DEPARTMENT,CHENNAI. EXT.P2: BUILDING PERMIT DTD. 24.5.2008 ISSUED BY THE VIZHINJAM GRAMA PANCHAYATH. EXT.P3: APPLICATION DTD. 9.7.2010 SUBMITTED BEFORE R2 THROUGH R4. EXT.P4: RECEIPT DTD. 9.3.2011 EVIDENCING THE PAYMENT OF THE LICENCE FEE. EXT.P5: CERTIFICATE DTD. 7.6.2007 ISSUED BY THE VIZHINJAM GRAMA PANCHAYATH. EXT.P6: DEMAND NOTICE ISSUED FOR PAYMENT OF BALANCE BUILDING TAX ISSUED BY THE TASILDAR, NEYYATTINKARA, DTD. NIL. EXT.P7: RECEIPT EVIDENCING THE PAYMENT OF PROPERTY TAX ISSUED BY THE CORPORATION OF THIRUVANANTHAPURAM NO.1330 DTD. 25.4.2011. EXT.P8: RECEIPT EVIDENCING PAYMENT OF PROPERTY TAX ISSUED BY THE CORPORATION OF THIRUVANANTHAPURAM NO.1331 DTD. 25.4.2011. EXT.P9: CERTIFICATE DTD. 10.6.2010 ISSUED BY THE CHIEF MANAGER, KERALA FINANCIAL CORPORATION. EXT.P10: ORDER G.O.(Rt)NO.5444/2004/GAD DTD. 28.7.2004 ISSUED BY THE GOVERNMENT. EXT.P11: JUDGMENT DTD. 30.5.2011 IN W.P.(C).NO.13744/2011 PASSED BY THIS COURT. EXT.P12: ORDER NO.2156/A2/2011/TD DTD. 19.7.2011 PASSED BY R1. RESPONDENTS' EXHIBITS: EXT.R1(a): LETTER DTD. 30.6.2011 ISSUED BY THE KERALA COASTAL ZONE MANAGEMENT AUTHORITY, SASTHRA BHAVAN, THIRUVANANTHAPURAM. ........ // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.20609 Of 2011 ---------------------- Dated this the 24th day of October, 2011. J U D G M E N T The writ petition is filed seeking to quash Ext.P12 order, to declare that the petitioner firm is entitled to FL-3 licence, bar licence under Rule 13(3) of the Foreign Liquor Rules as per Ext.P3 application and for a direction commanding the respondents to grant FL-3 licence, bar licence under Rule 13(3) of the Foreign Liquor Rules for conducting the hotel of the petitioner firm, Sagara Beach Resorts at Kovalam. 2. The petitioner firm constructed a three star hotel in Kovalam, which is a prime tourist spot in the State. The hotel is classified as three star hotel. Ext.P1 is the copy of the star classification certificate dated 14.6.2010 issued by the India Tourism Department, Chennai certifying three star classification for a period of 5 years with effect from 21.5.2010. The petitioner obtained Ext.P2 building permit dated 24.5.2008 issued by the Vizhinjam Grama Panchayath. Permission was granted for the construction of a hotel building in S.Nos.55/5-4 and 54/12 in Vizhinjam Village. Long before the construction of the new hotel building, the petitioner and his family members were running ::2:: W.P.(C).No.20609 Of 2011 hotels in the same premises in the old buildings situated one in the front side and the other on the backside. The petitioner applied for the issuance of FL-3 licence under Rule 13(3) of the Foreign Liquor Rules. The copy of the application is marked as Ext.P3. Ext.P3 is dated 9.7.2010. On 9.3.2011 the Corporation issued licence to run the hotel. Ext.P4 is the copy of the receipt issued for the payment of licence fee. Ext.P5 is the copy of the certificate dated 7.6.2007 issued by the Secretary, Vizhinjam Grama Panchayath certifying that the survey numbers in which the hotel is constructed is not under Coastal Regulation Zone Area. True copies of the receipts dated 25.4.2011 evidencing payment of property tax issued by the Corporation of Thiruvuananthapuram is marked as Exts.P7 & P8. 3. The petitioner submits that all the documents required for the issuance of FL-3 licence are produced along with Ext.P3 application. A list of enclosures attached to Ext.P3 application shows the documents produced along with Ext.P3 application. The petitioner pointed out that the petitioner's building was constructed by availing a loan of Rs.9 Crores from the Kerala Financial Corporation. Ext.P9 is the copy of the certificate dated ::3:: W.P.(C).No.20609 Of 2011 10.6.2010 issued by the Chief Manager, KFC certifying that the petitioner obtained building permit and clearance from the CRZ for the construction of the resort building and also certified that the KFC financed the petitioner after scrutiny of the permit by the technical officer. 4. The petitioner alleged that Ext.P3 application was not considered for a long time due to influence extracted on the authorities by the rival licensees of the area and therefore, the petitioner firm was constrained to file W.P(C).No.13744/2011 for a direction to respondents 1 & 2 to consider and pass orders within a stipulated time. This Court by Ext.P11 judgment dated 30.5.2011 directed the respondents 1 & 2 therein to pass orders on the application for licence within a period of six weeks from the date of receipt of a copy of the judgment. It is pointed out that since no orders are passed within the time limit prescribed by this Court, the petitioner filed C.O.C.No.781/11 against respondents 1 & 2 and that during the pendency of the contempt case, Ext.P12 order was passed rejecting the application on the ground that the hotel is constructed in violation of the provisions of the CRZ notifications. Ext.P12 is dated 19.7.2011. ::4:: W.P.(C).No.20609 Of 2011 5. The requirement for the grant of a FL-3 licence as per Rule 13(3) are the possession/ownership of a three star classified hotel functioning outside the objectionable institutions and that the partners are qualified to hold the licence. The relevant portion of Rule 13(3) of the Foreign Liquor Rules reads as follows. “ Rule 13 (3): Foreign Liquor 3 Star Hotel (Restaurant) Licence: Licence in this form may be issued by the Excise Commissioner under orders of Government, in the interest of promotion of tourism in the State, to hotels which have obtained three star, four star, five star, five star deluxe, heritage, heritage grand or heritage classic classification from Ministry of Tourism, Government of India, where the privilege of sale of foreign liquor in such hotels have been purchased on payment of an annual rental of Rs.22,00,000/- (Rupees Twenty-Two lakhs only). But no such license shall be issued to hotels which are located within 200 (two hundred) metres from an educational institution, temple, church, mosque or burial ground. ..................” 6. It is not disputed that the hotel was constructed as per the permit and approved plan issued by the local authority. Subsequently, the hotel was numbered by the local authority, tax is being paid and it is certified by the local authority that the construction is not in violation of the CRZ notifications. Neither ::5:: W.P.(C).No.20609 Of 2011 the local authority nor the Coastal Reserve Zone Management authorities have initiated any step against the petitioner firm for violating the Building Rules or for violation of the provisions of the CRZ notifications. 7. The first respondent in paragraph 8 of the counter affidavit admitted that the petitioner resort satisfied the conditions stipulated in Rule 13(3) of the Foreign Liquor Rules. The only case of the 1st respondent is that the construction of the petitioner resort is in violation of the provisions of the CRZ notifications and therefore the petitioner is not eligible to get FL- 3 licence to hotel Sagara Beach Resort. If the petitioner's application satisfies the conditions stipulated in Rule 13(3) of the Foreign Liquor Rules, the respondents are duty bound to issue licence. So long as the respondents have no case that the petitioner's resort does not satisfy the conditions as stipulated under rule 13(3) of the Foreign Liquor Rules, the only course open to the respondents is to issue licence under the Rules. The question as to whether the construction of the petitioner resort is violative of the provisions of the CRZ notifications is not a matter to be considered while disposing of an application for FL-3 ::6:: W.P.(C).No.20609 Of 2011 licence. Ext.P5 certificate issued by the Vizhinjam Grama Panchayath certifying that re-survey numbers mentioned therein of Vizhinjam Village is not under CRZ area would shows that the construction was made and completed under valid permit. 8. The petitioner availed Rs.9 Crores from the KFC. This is evident from Ext.P9 certificate. The petitioner submits that the petitioner firm has to remit Rs.20 Lakhs per month towards instalments. It is submitted that the tourists prefer hotel with bar facility. It is a fact that Kovalam is a prime tourist centre attracting large number of tourists especially foreigners. It is a fact that the foreign tourists prefer hotels with bar facility as contended by the petitioner. It is pointed out that due to the non-availability of a bar licence to the petitioner's firm, the petitioner is suffering huge loss in the business. 9. Rule 13(3) of the Foreign Liquor Rules specifically authorises the Government to grant licence for retail sale of liquor in hotels with star classification of 3 and above and which is for the purpose of tourism promotion. It is for the State to provide all modern facilities for the tourist in prime tourist centres. Availability of liquor in star hotels is required for tourism ::7:: W.P.(C).No.20609 Of 2011 promotion. Going by the Rules referred above, if the applicant satisfies the condition laid down in the Rules including the payment of annual rent, it is the duty of the respondents 1 & 2 to issue licenceTherefore, there should be an objective consideration of the request of the petitioner who intends to provide bar facility to the customers. 10. Taking into consideration Rule 13(3) of the Foreign Liquor Rules and the facts and circumstances discussed above, this Court is of the view that Ext.P12 order does not stand to reason. Therefore, Ext.P12 order is quashed. A direction is issued to the Commissioner of Excise to consider and pass appropriate orders on Ext.P3 application for licence, as expeditiously as possible, at any rate, within a period of three weeks from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. HARUN-UL-RASHID, Judge. bkn/-