TaxTMI 
TaxTMI 
TaxTMI 
2017 (4) TMI 1039
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....aid recommendation was pending consideration before the State Government, the Foreign Liquor Rules came to be amended on 18th April, 2012. The amendment inter alia prescribes the minimum distance of 200 metres from an objectionable institution. The report submitted by the Deputy Commissioner of Excise records the distance between the gate of the hotel of the Respondent and the nearest objectionable institution (being Sree Bhagwati Ayappa Temple, Karuvannurthara) as 70 metres only. Consequent to the amendment to the Foreign Liquor Rules, the Government vide letter No. 8028/A2/2012/TD dated 26th April, 2012, called upon the Excise Commissioner, Thiruvananthapuram to examine the proposal of the Respondent. The Excise Commissioner, by a speaking order passed on 5th June, 2012, came to the conclusion that the application submitted by the Respondent deserved to be rejected and directed it to be returned to the Deputy Commissioner of Excise, Palakkad. 2. For answering the controversy at hand, we deem it apposite to reproduce the said communication in its entirety: "PROCEEDINGS OF THE EXCISE COMMISSIONER, KERALA THIRUVANANTHAPURAM (Present: Sri. A. Ajith Kumar IAS) Sub:- Excise- Ab....
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.... of hotels in private sector of above categories, thereby at present the distance limit to those hotels in private sector of above categories, thereby at present the distance limit of those hotels in private sector of all categories from the objectionable site is 200 meters. In the above circumstances and as reported by the Joint Excise Commissioner, Central Zone, Executive and Deputy Commissioner of Excise, Palakkad and since the nearest objectionable institution viz. the Sree Bhagavathy Ayyappa Temple, Kanvannurthara is located only 70 metres away from the gate of the hotel the application read as 4th above is hereby rejected and returned to the Deputy Commissioner of Excise, Palakkad. Sd/- Excise Commissioner" 3. Against this decision, the Respondent filed a writ petition before the High Court of Kerala, being Writ Petition (C) No.14220 of 2012 for the following reliefs: "i) call for the records leading to Ext. P7 and quash the same by issuing a writ of certiorari or other appropriate writ, order or direction; ii) declare that petitioner is entitled to get an FL-11 licence as per Ext. P-2 application. iii) Declare that Ext. P6 amendment to the extent it introduce di....
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....n is allowed. Ext. P7 is quashed and respondents 1 to 5 are directed to issue FL-11 licence to the petitioner under Rule 13(11) of the Foreign Liquor Rules, beer/wine parlour licence vide Ext. P2 application on the basis of rule/law prevailed on the date of Ext. P5, i.e., 28.03.2012. This exercise shall be completed within a period of three months from today." 5. Against this decision, the appellant filed a Writ Appeal being No.950 of 2014 before the Division Bench of the High Court. The same has been dismissed on 12th August, 2014, in the following terms: "1. Heard the learned Senior Government Pleader and the learned counsel appearing for the respondent/writ petitioner. 2. The impugned judgment has been rendered by a learned Single Judge relying on the decision of a Division Bench in Kallada Hotels and Resorts v. State of Kerala [2012(2) KLT 167]. That decision notwithstanding, the fact of the matter remains that even as per the later bench decision in State of Kerala and Others v. M. P. Shiju [2014(2) KHC 343 (DB)], the respondent/writ petitioner is entitled to succeed, in view of the fact that the law has been succinctly stated to the effect that the eligibility has to....
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....th the impugned judgment. The Special Leave Petition is, accordingly, dismissed. Question of law is kept open." Even the review petition filed by the State against the said decision, being Review Petition(C) No.1409 of 2012, came to be dismissed on 14th August, 2012. 10. What is relevant to note is that, in the case of Kallada Hotels & Resorts (supra), the Division Bench of the High Court had adverted to the decision of this Court in the case of State of Kerala & Anr. v. B.6 Holidays Resorts Pvt. Ltd. 2010 (5) SCC 186, wherein it has been held that an application for grant of liquor licence has to be considered with reference to the rules/law prevailing or in force on the date of consideration of application by the Excise Authorities and not with reference to the law as on the date of the application. After noticing the decision of this Court, the Division Bench on the facts of the case before it allowed the Writ Appeal. It will be useful to advert to the relevant portion of the Division Bench decision: "4. ...............................................................Going by the judgment of the Hon'ble Supreme Court the law applicable is the law that is in force when the E....
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....decision is taken by the competent authority, alone, would be the relevant date. The recommendation made by the subordinate authority, even if significant for taking a formal decision by the competent authority, will be of no avail. 12. In the present case, the learned Single Judge has assumed the date on which recommendation was made by the Excise Commissioner i.e. 28th March, 2012, as the relevant date. That assumption is untenable. For, that was not the date on which the final decision was taken by the competent authority. Whereas, before a final decision could be taken by the competent authority on the application submitted by the Respondent, the Foreign Liquor Rules were amended on 18th April, 2012. The application submitted by the Respondent for grant of licence, unquestionably, must be treated as pending and under consideration on this date. 13. A priori, no fault can be found with the State Authority for calling upon the Excise Commissioner to examine the proposal and submit his fresh recommendation keeping in mind the amended provisions of the Foreign Liquor Rules. In other words, the application for grant of FL-11 licence submitted by the Respondent was required to be c....