IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 30TH JANUARY 2008 / 10TH MAGHA 1929 WP(C).No. 29186 of 2007(Y) -------------------------- PETITIONER: -------------- K.V.SADANANDAN, MANAGING PARTNER, M/S. HOTEL ELITE DRIVE INN, KODUNGALLORE, THRISSUR DISTRICT. BY ADV. SRI.T.A.SHAJI RESPONDENTS: ----------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, THIRUVANANTHAPURAM. 2. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SMT.M.K.PUSHPALATHA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ALONG WITH WP(C).3396/2008 ON 30/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.29186/2007 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - TRUE COPY OF THE APPLICATION DATED 12-3-2007 SUBMITTED BY THE PETITIONER AND OTHER PARTNERS BEFORE THE 2ND RESPONDENT. EXT.P2 - TRUE COPY OF THE JUDGMENT DATED 10-9-2007 IN WP(C). NO.26845/2007 OF THIS COURT. EXT.P3 - TRUE COPY OF THE ORDER NO.XC6-7671/2007 DATED 25-9-2007 ISSUED BY THE 2ND RESPONDENT. EXT.P4 - TRUE COPY OF THE G.O.(P).NO.44/07/TD DATED 13-3-2007 ISSUED BY THE GOVERNMENT OF KERALA. RESPONDENTS' EXHIBITS: NIL. TRUE COPY P.S.TO JUDGE. THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = WP(C).Nos.29186/2007-Y & 3396/2008-D = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 30th day of January, 2008. JUDGMENT 1.The petitioner in WP(C).3396/2008 and the petitioner in WP(C).29186/2007 are members of a partnership. An FL3 licence originally issued to the petitioner in WP(C).3396/2008 was transferred to the petitioner in WP(C).29186/2007. He is operating that licence and the bar hotel is carried on by a firm, of which the aforesaid two persons are among the partners. 2.Going by the counter affidavit placed by the first respondent in WP(C).29186/2007, an application dated 12-3-2007 was received on 19-3- 2007 requesting for the deletion of the petitioner in WP(C).3396/2008 from the partnership. However, the respondents take the WP(C)29186/07 & 3396/08 -: 2 :- stand that by virtue of the second proviso occurring after Rule 19(iv) of the Foreign Liquor Rules, re-constitution of partnership deed cannot be allowed in the case in hand because, the hotel does not have a Two Star Classification Certificate issued by the Ministry of Tourism, Government of India. 3.The second proviso occurring after Rule 19(iv) in the Foreign Liquor Rules was inserted as per SRO.223/2007 published in the Gazette dated 13-3- 2007. But, that Government Order specifically provides that it shall come into force only with effect from 1-4-2007. Therefore, the embargo, if any created by the proviso noted above will apply only on and from 1-4-2007. The application of the petitioners is only for retirement. That application was admittedly received on 19-3-2007. If it amounts to re-constitution, any amendment that came into force on 1-4-2007 as per GO(P). No.44/2007/TD dated 13-3-2007, cannot have any effect. So much so, the application of the WP(C)29186/07 & 3396/08 -: 3 :- petitioners in these cases for permission to the petitioner in WP(C).3396/2008 to retire from the firm, has to be considered on the basis of the rule that prevailed on 19-3-2007, the date on which the said application has been received. It is so declared and it is directed that the case shall be considered in the light of what is stated above and orders issued finally within a period of three weeks from the date of receipt of a copy of this judgment. The impugned order having been issued only on the basis that the proviso inserted with effect from 1-4-2007 applies, the same is quashed and it is directed that the application of the petitioner in WP(C). 3396/2008, as referred to above, shall stand allowed. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/