IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 7TH APRIL 2011 / 17TH CHAITHRA 1933 WP(C).No. 10787 of 2011(W) ----------------------------------------- PETITIONER(S): ----------------------- M/S.CHERAKULAM TOWER, PUDUKKAD, THRISSUR REPRESENTED BY ITS MANAGING PARTNER SRI.JOSEPH JOSEPH. BY SRI.RAJU JOSEPH, SENIOR ADVOCATE BY ADV.SRI.J.JULIAN XAVIER RESPONDENT(S): --------------------------- 1. THE COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM - 695 001. 2. THE DEPUTY COMMISSIONER OF EXCISE, EXCISE DIVISION OFFICE, THRISSUR - 680 001. 3. K.T.MATHEW, KATTIVETTIL HOUSE, KEEZHOOR, CHAVASSERY, IRITTY - 670 703. R1 & R2 BY GOVERNMENT PLEADER SRI.K.R.DEEPA R3 BY ADV. SRI.A.MOHAMED MUSTAQUE SRI.K.R.AVINASH (KUNNATH) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/04/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts C.T.RAVIKUMAR, J. - - - - - - - - - - - - - - - - - - - - - - - W.P(C) No. 10787 of 2011 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of April, 2011 J U D G M E N T The petitioner is a partnership firm by name 'Cherukulam Tower'. The firm has been issued with Ext.P2 FL-3 licence. The said FL-3 licence was renewed from time to time and it was valid till 31.3.2011. Prior to the expiry of its validity, the petitioner filed an application for renewal of Ext.P2 licence before the 3rd respondent. The said application along with the Demand Draft and other enclosures were returned to the petitioner as per Ext.P6. It is aggrieved by the said action and challenging Ext.P6 order, that this writ petition has been filed. A perusal of Ext.P6 would reveal that they were so returned relying on the proviso to Rule 13(B) of the Foreign Liquor Rules. According to the third respondent, there occurred a reconstitution of the firm without the prior sanction of the Excise Commissioner and, therefore, in the light of Rule 13(B)(3) of the Foreign Liquor Rules, he is incompetent to renew the licence. It was the said circumstances that the application along with Demand Draft and other enclosures were returned. The petitioner has raised various contentions to assail the said action on the part of the third W.P.(C) No.10787 of 2011 -2- respondent and also Ext.P6. 2. When this matter is taken up for consideration today, the learned senior counsel appearing for the petitioner has brought to my attention Ext.R3(a). Ext.R3(a) is a settlement arrived between the petitioner and also the 3rd respondent. It is obvious from Ext.R3(a) that the dispute between the petitioner and the third respondent regarding the partnership and management of the Company Board has been settled and the third respondent has denounced his claim and right over the firm as partner of the firm. In otherwords, the 3rd respondent has relinquished his entire claim staked as a partner of the firm. 3. Evidently, during the proceedings before the authorities and also at the time of filing this writ petition, the petitioner and the third respondent were at loggerheads. However, Ext.R3(a) would reveal that now, they have come to a settlement. In the said context, it is also relevant to note that the specific case of the petitioner is that at no point of time, Ext.P2 FL-3 licence was transferred after it got transferred in the name of the Managing Partner of the firm as per Boards Order No.XC6-20298/95/K Dis dated 13.09.1995 of the W.P.(C) No.10787 of 2011 -3- erstwhile Board of Revenue. Though an agreement for reconstitution was prepared in the year 2006, it had never materialized and actually, at no point of time, the partnership was reconstituted with the 3rd respondent as a partner. It was being renewed from time to time in the name of the Managing Partner of the firm. The application which was returned as per Ext.P6 also was submitted for the purpose of getting Ext.P2 licence renewed in the name of the Managing Partner. Therefore, it is the contention of the petitioner that in view of the fact that there occurred no change in the constitution of the firm and in the light of Ext.R3(a), the 2nd respondent is bound to consider the application submitted by the petitioner for renewal of FL-3 licence. 4. I have heard the learned senior counsel for the petitioner, learned Government Pleader and also the learned counsel for the third respondent. Admittedly, the hotel in question is classified as '2 star'. Ext.P2 licence has been issued in the name of the Managing Partner of the firm i.e. in the name of the petitioner. The contention is that the petitioner is still continuing as its Managing Partner. Ext.P2 has been renewed from time to time in the name of the petitioner, in his capacity as a Managing Partner of the firm. The constitution of the firm W.P.(C) No.10787 of 2011 -4- has not been changed, ever since, the transfer of Ext.P2 licence in the name of the Managing Partner of the firm on13.09.1995.. There is no change in the constitution of the partnership firm, ever since, the licence was so transferred in the name of the Managing Partner of the partnership firm. 5. Evidently, as per Ext.P6, the application along with the Demand Draft and other enclosures were returned to the petitioner holding that on account of violation of Rule 19(1) of the Foreign Liquor Rules, the second respondent is incompetent to renew the licence in terms of Rule 13B of the Foreign Liquor Rules. The learned counsel for the petitioner and also the learned counsel for the third respondent submitted that in the light of Ext.R3(a) it cannot be contended anymore that there was violation of Rule 19(1). The licence in question was not sold, transferred or sub-rented by the partnership firm, and in fact it was not actually reconstituted at any time with the third respondent as its partner. At any rate, in the light of Ext.R3(a), the issue needs reconsideration at the hands of the second respondent. In view of the said submissions made on behalf of the petitioner and also the 3rd respondent and on perusing Ext.R3(a), I am of the W.P.(C) No.10787 of 2011 -5- view that the second respondent who refused to consider the application for renewal of FL-3 licence and returned the same along with the Demand Draft and other enclosures to the petitioner as per Ext.P6 holding that he is incompetent to renew the licence, has to consider the question of renewal, in accordance with law, especially, taking into account the specific contention of the petitioner and also the third respondent and Ext.P3(a). To enable the second respondent to consider the application for renewal, the petitioner shall resubmit the application along with Demand Draft and other enclosures, which were returned as per Ext.P6 letter. On receipt of the application the Demand Draft and other enclosures, the second respondent shall consider the application, submitted by the petitioner for renewal of FL- 3 licence, in accordance with the above directions. This shall be done expeditiously, at any rate within a period of 10 days from the date of receipt of a copy of this judgment. Accordingly this writ petition is disposed of as above. Sd/- C.T.RAVIKUMAR, JUDGE //TRUE COPY// P.A. TO JUDGE KRK