TMI Blog2017 (4) TMI 1039X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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 considered by the competent authority keeping in mind the amended provisions which came into force w.e.f. 18th April, 2012. That is precisely what has been done by the Excise Commissioner, as can be discerned from his speaking order dated 5th June, 2012, for invoking the restriction of distance of 200 metres from the objectionable site. Since the learned Single Judge of the High Court proceeded to decide the writ petition filed by the Respondent merely by referring to the pronouncement of the Division Bench of the same High Court in the case of Kallada Hotels and Resorts (2012 (2) TMI 611 - KERALA HIGH COURT) coupled with the fact that the Respondent had asked for a wider rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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- Abkari-Application for FL-11 licence to Palkkad Heritage Hotels, Koduvayoor, Palakkad rejected orders issued. Read:- (1) Govt. Letter No. 8028/A2/2012/TD dated 26/04/2012 (2) Letter No. CZ3-577/12 dated 19.03.2012 of the Joint Excise Commissioner, Central Zone, Ernakulam. (3) Letter No. P-6-1611/12 dated 16/03/12 21/03/2012 of Deputy Commissioner of Excise, Palakkad. (4) Application dated 01/03/2012 of Sri. M.J. Thomas (5) GO (Ms) No. 107/11/TD dated 17/08/11 (6) GO (P) No. 72/2012/TD dated 18/04/12 ORDER NO. XC6-7476/12/K. Dis Dated 05.06.2012 The Joint Excise Commissioner, Central Zone, Ernakulam has forwarded, vide letter read as 1st above, an application submitted by Sri. M. J. Thomas, Managing Partner, M/s Palakad Heritage Hotels, Eroor P.O. Ernakulam requesting sanction for FL-11 licence in his name to the Palakkad Heritage Hotels, Koduvayoor, Palakkad having a valid heritage basic category c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 distance of 200 meters from objectionable institutions for getting FL-11 license is discriminatory and without any basis; iv) Declare that if the hotels located within 200 meters from objectionable institutions are permitted to conduct the licenses, the petitioner is also entitled to get license as per Ext. P2 application; v) Issue a writ of mandamus or other appropriate writ, order or direction commanding the respondent 1 to 5 to issue an FL-11 license under Rule 13 (11) of the Foreign Liquor Rules, beer/wine parlour license, vide Ext. P-2 application on the basis of the rule/law prevailed on the date of Ext. P-5 (28.3.2012); vi) Issue a writ of mandamus or other appropriate writ, order or direction commanding the respondents 1 to 5 not to renew FL-3 and FL-11 licenses, which are conducting within 200 meters from the objectionable institutions, if the petitioner is denie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... la [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 be considered applying the law as on the date of consideration of the matter by the Excise Commissioner. This being, pointedly, the legal issue involved in this writ appeal, the question raised has, necessarily, to be answered against the State. This appeal, therefore, fails. In the result, this writ appeal is dismissed. No costs. 6. The later decision adverted to by the Division Bench in the case of M.P. Shiju (supra), was challenged by the State Government before this Court by way of SLP(C) No.25780 of 2014. The same was disposed of on 22nd July, 2016 in the following terms: ORDER Learned counsel for the parties are agreed that this petition has become infructuous in view of the position rendered to this Court in Civil Appeal No. 4157 of 2015 titled as The Kerala bar Hotels Association Anr. V. State of K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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 Excise authorities at various levels consider an application for FL3 licence, as is evidenced by the records produced in this case, the application submitted before the Excise Commissioner goes for enquiry to the Deputy Commissioner who make his recommendations which in turn is endorsed by the Joint Commissioner of Excise. Thereafter the application goes to Government and with the permission of the Government the Excise Commissioner issues the licence. In this case the initial denial of licence to the appellant was on account of the mistake about the distance from the temple which was wrongly reported as within the prohibited distance. It is seen that within one month of issuance of the first report namely Ext. P6 dated 25/08/2011 the Joint Excise Commissioner corrected the mistake on 22/09/2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 considered by the competent authority keeping in mind the amended provisions which came into force w.e.f. 18th April, 2012. That is precisely what has been done by the Excise Commissioner, as can be discerned from his speaking order dated 5th June, 2012, for invoking the restriction of distance of 200 metres from the objectionable site. 14. Since the learned Single Judge of the High Court proceeded to decide the writ petition filed by the Respondent merely by referring to the pronouncement of the Division Bench of the same High Court in the case of Kallada Hotels and Resorts (supra), coupled with the fact that the Respondent had asked for a wider relief to declare the amendment of 18th April, 2012 as void to the extent it has introduced the restriction of distance of 200 meters from o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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