Kerala High Court
Hotel Highway vs State Of Kerala on 4 April, 2024
Author: P Gopinath
Bench: P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 4TH DAY OF APRIL 2024 / 15TH CHAITHRA, 1946
WP(C) NO. 31478 OF 2015
PETITIONER/S:
HOTEL HIGHWAY
KAIPPAMANGALAM, THRISSUR DISTRICT, REPRESENTED BY ITS
MANAGING PARTNER, SRI.T.P.UNNIKRISHNAN, AGED 49 YEARS,
S/O.PUSHPANGADHAN (LATE), RESIDING AT THASHNATH HOUSE,
CHANTRAPPINNI.P.O., THRISSUR DISTRICT-680 687.
BY ADVS.
SRI.M.G.KARTHIKEYAN
SRI.NIREESH MATHEW
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, TAXES(A)DEPARTMENT,
GOVT.SECRETARIAT, THIRUVANANTHAPURAM.695 001.
2 THE EXCISE COMMISSIONER
COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM.695 033.
3 THE DEPUTY COMMISSIONER OF EXCISE
THRISSUR-680 001.
BY ADVS.
GOVERNMENT PLEADER
OTHER PRESENT:
SRI. BINOY DAVIS (GP)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P (C) No.31478/2015 -2-
JUDGMENT
The petitioner is a partnership firm in which one T.P. Salim was also a
partner till 29-01-2002. The firm was holding an FL-3 licence and following
permission obtained under Rule 19 of the Foreign Liquor Rules, the firm was
reconstituted and Sri. T.P. Salim retired from the partnership. The
reconstituted partnership continued the FL-3 licence for the years 2002-03,
2003-04, 2004-05. The licence also renewed for the year 2005-06. However
by Ext.P2 order dated 14-09-2004 the Government revoked Ext.P1 order
sanctioning the retirement of Sri. T.P. Salim, as a result of which the
petitioner had to stop its business. Challenge to Ext.P2 was repelled by the
learned Single Judge by Ext.P3 judgment and a Division Bench of this Court
by Ext.P5 judgment. The petitioner thereafter approached the authorities for
the price of the liquor that was in-stock at the time of closure and also for a
refund of licence fee for the period that it was not permitted to operate for the
year 2005-06. This court by Ext.P7 judgment directed the authorities to pay
the value of the stock. However, the claim for refund of proportionate licence
fee for the period the petitioner did not operate was left open, since SLP (C)
No.14375/2005 filed against Ext.P3 and P5 judgments of this court was
pending consideration of the Supreme Court. By Ext.P8 order the Supreme
Court disposed of Civil Appeal No.652/2006 leaving it open to the petitioner
to pursue its claim for refund of proportionate licence fee. It is the case of the
petitioner that the claim for refund of proportionate licence fee is supported
by the judgment of the Supreme Court in Chitra v. State of Kerala; 2015
(3) KLT 956. The petitioner has preferred Ext.P9 application before
respondents 1 and 2. It is submitted that Ext.P9 may be directed to be
considered keeping in mind the law laid down by the Supreme Court in
Chitra (supra).
2. The learned Government Pleader submits that the stand taken in
the counter affidavit is that the law laid down by the Supreme Court in
Chitra (supra) may not apply as this is not a case where the petitioner was
prevented from operating no fault of his. It is submitted that the default
committed by the partner of the firm namely Sri. T.P. Salim was the reason
which led to Ext.P8 and therefore it cannot be said that the law laid down in
Chitra (supra) will entitle to the petitioner to claim refund of the licence fee.
However, it is submitted that there is no objection in a direction being issued
to the 1st respondent to consider Ext.P9 also keeping in mind the law laid
down by the Supreme Court in Chitra (supra). It is also pointed out by the
learned Government Pleader that if 50% of arrears of the aforesaid Sri. T.P.
Salim was paid, the petitioner could have continued with its business.
3. Having heard the learned counsel for the petitioner and the
learned Government Pleader and having regard to the facts and
circumstances of the case, this writ petition will stand disposed of directing
the 1st respondent to consider Ext.P9 in accordance with the law and keeping
in mind the law laid down by the Supreme Court in Chitra (supra) after
affording an opportunity of hearing to the petitioner. The decision in the
matter shall be taken by the 1 st respondent as directed above within a period
of 3 months from the date of receipt of a certified copy of this judgment.
I make it clear that I have not expressed any opinion on the merits of
the matter and it is open to the 1 st respondent to decide the matter in
accordance with the law.
Sd/-
GOPINATH P.
JUDGE
AMG
APPENDIX OF WP(C) 31478/2015
PETITIONER EXHIBITS
EXT.P1- PHOTOCOPY OF THE ORDER NO.XC6-937/2002/R.DIS DATED
29.1.2002 PASSED BY THE 2ND RESPONDENT.
EXT.P2- PHOTOCOPY OF THE ORDER NO.GO(RT.)NO.666/04/TD DATED
14.9.2004 PASSED BY THE 1ST RESPONDENT.
EXT.P3- PHOTOCOPY OF THE JUDGMENT DATED 1.6.2005 IN
WP[C]NO.27393/2004 PASSED BY THIS HON'BLE COURT.
EXT.P4- PHOTOCOPY OF THE LETTER DATED 14.6.2005 SENT TO THE ASST.
EXCISE COMMISSIONER, THRISSUR.
EXT.P5- PHOTOCOPY OF THE JUDGMENT DATED 24.6.2005 IN
W.A.NO.1151/2005 PASSED BY THIS HON'BLE COURT.
EXT.P6- PHOTOCOPY OF THE ORDER NO.XC6-11484/04 DATED 3.9.2005
PASSED BY THE 2ND RESPONDENT.
EXT.P7- PHOTOCOPY OF THE JUDGMENT DATED 3.2.2012 IN
WP[C]NO.23037/2005 PASSED BY THIS HON'BLE COURT.
EXT.P8- PHOTOCOPY OF THE ORDER DATED 11.8.2015 IN CIVIL APPEAL
NO.652/2006 PASSED BY THE HON'BLE SUPREME COURT.
EXT.P9- PHOTOCOPY OF THE REPRESENTATION DATED 4.9.2015 SENT TO THE
RESPONDENTS.
EXT.P10- PHOTOCOPY OF THE CITATION REPORTED IN 2015(3) KLT 956(SC)
CHITRA VS. STATE OF KERALA.
