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2012 Supreme(Ker) 479

High Court of Kerala
P.N. RAVINDRAN, J.
M/s. Hotel Malika Residency
Versus
State of Kerala & Others
W.P. (C) Nos.6494 & 8414 of 2012 & W.P. (C) No.32515 of 2011
Decided on: 28-06-2012

Advocates Appeared:
For the Petitioner:C.C. Thomas, Senior Advocate, Nireesh Mathew, M.G. Karthikeyan, Advocates.
For the Respondent:R1 to R4, Sujith Mathew Jose, Government Pleader, R5, P.S. Biju, R6 to R8, N. Raghuraj, Smt. K. Amminikutty Advocates.

Headnote:Foreign Liquor Rules, 1953, Rule 19(1) - Transfer of license don't include the transfer of ownership - Bar license is not prohibited as per the rule 19.

Judgment:

A common question arises in these writ petitions. The parties are also the same. They were therefore heard together and are being disposed of by this common judgment. W.P.(C)No.6494 of 2012 is treated as the main case and unless otherwise mentioned, the parties and documents referred to, are with reference to the said writ petition. The brief facts of the case are as follows:

2. "M/s. Hotel Malika Residency", the petitioner in W.P.(C) No.6494 of 2012 is a partnership firm. It is running a hotel at Ettumanoor under the name and style "Hotel Malika Residency". Ext.P1 licence in form FL-3 was issued to the Managing Partner of the petitioner firm under rule 13(3) of the Foreign Liquor Rules, 1972 (hereinafter referred to as "the rules" for short) on 8.8.2006. The licence which was initially valid till 31.3.2007, was being periodically renewed and the last of the renewals was valid till 31.3.2012. After the FL-3 licence was renewed for the year 2010-2011, the partners of the petitioner firm transferred the land and the building where "Hotel Malika Residency" is situate, to respondents 5 to 8, who are partners of yet another firm M/s. Bee Bees Palace, as per Ext.P2 sale deed dated 13.4.2010, that was registered on the same day. The petitioner states that on the very same day, the purchaser firm M/s. Bee Bees Palace, leased back the property conveyed to it as per Ext.P2 sale deed, to the petitioner firm as per Ext.P3 lease deed dated 13.4.2010 for a period of five years, with effect from 13.4.2010 with the obligation to pay the sum of Rs.2,50,000/- per mensem as rent. It is stipulated therein that the petitioner firm will be at liberty to use the entire hotel building and the premises and can obtain hotel, lodging licence, etc., for running the bar attached hotel named "Hotel Malika Residency." Though the fifth respondent later raised a dispute and also filed a complaint in the Court of the Judicial Magistrate of the First Class, Ettumanoor alleging that Ext.P3 is a forgery and the court below forwarded the complaint to the Ettumanoor Police for investigation under section 156(3) of the Code of Criminal Procedure and the Ettumanoor Police registered Crime No.1263 of 2011 on 28.11.2011, it is not in dispute that Ext.P1 licence was renewed for the year 2011- 2012 also, without any objection being raised to the renewal either by the department or by respondents 5 to 8. When Ext.P1 licence was issued for the first time to the petitioner firm, the hotel had a three star classification which was required for the grant of a fresh FL-3 licence at the relevant time. Rule 13(3) of the rules was amended with effect from 9.12.2011 and thereafter, an FL-3 licence can be issued only to hotels which have obtained four star, five star, five star deluxe, heritage, heritage grant or heritage classic, classification from the Ministry of Tourism of the Government of India.

3. Long after Ext.P2 sale deed was executed, the fifth respondent filed Ext.P5 complaint dated 2.12.2011 produced in W.P. (C) No.32515 of 2011 before the Commissioner of Excise, Kerala, the Deputy Commissioner of Excise, Kottayam and the Circle Inspector of Excise, Ettumanoor alleging that Ext.P3 lease deed is a forgery and that he has objection to the FL-3 licence in the name of the petitioner firm being renewed. The fifth respondent thereafter filed W.P.(C) No.32515 of 2011 in this Court for an order directing the Commissioner of Excise, Thiruvananthapuram and the Deputy Excise Commissioner, Kottayam to enquire into Ext.P5 complaint filed by him and to take action to cancel or suspend the licence issued to the Managing Partner of the petitioner firm. He also sought an order directing them not to permit the Managing Partner of the petitioner firm to run the bar attached hotel on the strength of Ext.P1 licence. The Managing Partner of the petitioner firm thereafter moved the third respondent for renewal of Ext.P1 licence for the year 2012-2013. The third respondent then took






























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