State Of Kerala vs M/S. Back Water Ripples Pvt. Ltd

Kerala High Court

State Of Kerala vs M/S. Back Water Ripples Pvt. Ltd on 22 May, 2024

Author: Amit Rawal

Bench: Amit Rawal

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
            THE HONOURABLE MR. JUSTICE AMIT RAWAL
                              &
            THE HONOURABLE MR. JUSTICE EASWARAN S.
   WEDNESDAY, THE 22ND DAY OF MAY 2024 / 1ST JYAISHTA, 1946

                      WA NO. 677 OF 2024

AGAINST THE JUDGMENT DATED 25.01.2024 IN WP(C) NO.279 OF 2024
                   OF HIGH COURT OF KERALA

APPELLANT(S)/RESPONDENTS IN W.P.(C):


    1     STATE OF KERALA
          REPRESENTED BY SECRETARY, TAXES (A) DEPARTMENT,
          GOVT. SECRETARIAT, THIRUVANANTHAPURAM., PIN -
          695001

    2     THE EXCISE COMMISSIONER
          COMMISSIONERATE OF EXCISE, EXCISE HEAD QUARTERS,
          NANDAVANAM, THIRUVANANTHAPURAM., PIN - 695033

    3     THE DEPUTY COMMISSIONER OF EXCISE
          EXCISE DIVISION OFFICE, COLLECTORATE P.O,
          KOTTAYAM., PIN - 686002

    4     THE CIRCLE INSPECTOR OF EXCISE
          EXCISE CIRCLE OFFICE, MINI CIVIL STATION P.O,
          KOTTAYAM., PIN - 686001

          BY SRI.T.K. VIPIN DAS, SR. GOVERNMENT PLEADER



RESPONDENT(S)/PETITIONERS IN W.P.(C):


    1     M/S. BACK WATER RIPPLES PVT. LTD
          KUMARAKOM P.O, KOTTAYAM DISTRICT, PIN-686563
          REPRESENTED BY ITS MANAGING DIRECTOR, ALEX MATHEW
          VELLAPPALLY, AGED 30 YEARS, S/O.MATHEW ALEX
          VELLAPPALLY (LATE), RESIDING AT VELLAPPALLY HOUSE,
          PEROOR P.O, KOTTAYAM DISTRICT., PIN - 686637
 W.A. No.677 of 2024           2


    2     ALEX MATHEW VELLAPPALLY
          AGED 30 YEARS
          S/O.MATHEW ALEX VELLAPPALLY (LATE), MANAGING
          DIRECTOR, M/S. BACK WATER RIPPLES PVT. LTD.,
          KUMARAKOM P.O, KOTTAYAM DISTRICT, PIN-686563,
          RESIDING AT VELLAPPALLY HOUSE, PEROOR P.O, KOTTAYAM
          DISTRICT., PIN - 686637

     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
22.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A. No.677 of 2024              3



               AMIT RAWAL & EASWARAN S. , JJ.
                      -------------------------
                      W.A. No.677 of 2024
                 -----------------------------------
              Dated this the 22nd day of May 2024

                            JUDGMENT

AMIT RAWAL, J.

The present Writ Appeal is directed against the judgment of the Single Bench whereby the Writ Petition preferred by the respondent challenging Ext.P8 order dated 30.11.2023 rejecting the request to issue a fresh license with the changed constitution has been allowed by issuing directions to the excise people to consider the application afresh in accordance with law.

2. Owing to the fact that there is already an interim order dated 16.8.2023 in Writ Petition No.26868 of 2023, Mr. Vipin Das, the learned Government Pleader appearing on behalf of the appellant-respondent submitted that the respondent-petitioner company was holding FL-11 licence under Rule 13 (11) of the Foreign Liquor Rules dated 10.7.2014 which was issued on the strength of classification of restaurant by the Kerala Tourism Department.

3. On 9.3.2017 there was a reconstitution of the Board of Directors, which according to the department, was done without the sanction. The licence already issued was renewed up to 31.3.2020 and thereafter was not renewed on account of COVID-19 pandemic and also due to the illness of the managing director. When the respondent -petitioner approached the department for renewing the FL11 license due to death of the father on 2.7.2022 they were advised to file fresh application as there was a change of constitution of the Board of Directors. In the meantime, vide order dated 1.8.2023, the department had imposed a penalty of Rs.23 Lakhs upon the previous licensee on the ground of not seeking prior permission - from the excise department. The said order has been assailed by the respondent -petitioner in this Court by Writ Petition No.26868 of 2023 and vide interim order dated 16.8.2023 there has been a stay and the matter is pending consideration. However, the respondent - petitioner had filed an application for issuance of a fresh license after the change in the constitution was rejected vide order dated 30.11.2023. The said order was challenged in a separate writ petition bearing No.279 of 2024.

4. The learned Single Judge, vide impugned judgment issued directions to the department to consider the application afresh with W.A. No.677 of 2024 5 a condition that there will be no impediment for the department to consider the request, in view of the stay of the demand of the penalty in the pending writ petition. In fact the second writ petition should have been tagged along with the writ petition and decided together in order to avoid different versions and different meanings.

5. Issue notice before admission. Sri. M.G.Karthikeyan, the learned counsel, who was present in court accepts the notice.

6. It is submitted that both the matters are different and have no connection for.

7. Sri. Vipin Das, the learned Senior Government Pleader points out that in a similar case, the learned Single Judge, by order dated 09.09.2021 in W.P.(C) No.18183 of 2021, had declined to grant the interim order, wherein, the excise authorities imposed fine on the petitioner for reconstituting the firm without their sanction. The said order was assailed before the Division Bench, which refused to interfere in the matter and later, the matter was taken up before the Honourable Supreme Court and the S.L.P. was also dismissed.

8. On the contrary, Sri. Karthikeyan, the learned counsel appearing for the respondents submitted that in so far as this case W.A. No.677 of 2024 6 is concerned, the learned Single Judge, vide Ext.P5 order, had granted interim relief which is still in force, and, therefore, his client cannot be treated as defaulters. It is also pointed out that several writ petitions are pending before this Court with regard to the issuance of the license owing to the change of constitution and on merit, there is no adjudication so far. The order of the Single Bench is perfect, legal and justifies as no harm and prejudice would be caused to the department to consider the application for issuance of license and it would be subject to the outcome of the pending Writ Petition No.26868 of 2023.

9. We have heard the learned counsel for the parties in detail.

10. The order dated 01.8.2023 imposing the penalty has been stayed and the writ petition is pending. However, the learned Single Judge interfered with the subsequent orders Exts.P8 dated 30.11.2023 and Ext.P9 dated 11.12.2023 rejecting the application of the licensee for issuance of a fresh licence with the changed constitution. In our considered view this would lead to a total ambiguity. It is yet to be decided whether the demand of the excise department imposing the penalty for reconstituting the Board without obtaining the sanction would be justified or not. In other W.A. No.677 of 2024 7 words, in case the order under challenge is upheld the pending writ petition would be rendered infructuous. Thus, we are of the further view that the subsequent writ petition should have been tagged with the pending Writ Petition No.26868 of 2023. Accordingly, the impugned order is set aside. Writ Petition is No.279 of 2024 is ordered to restored to file and tagged along with the pending Writ Petition No.26868 of 2023.

11. At this stage Sri.Karthikeyan, the learned counsel has informed that the State has filed the counter yesterday and it would take a long time.

We are sanguine of the fact that in case the counsel representing the respondents/petitioner makes an earnest effort for the hearing of the writ petition, it would be decided expeditiously.

Sd/-

AMIT RAWAL, JUDGE Sd/-

EASWARAN S., JUDGE NS