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.
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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
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
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
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
