Back
1999 Supreme(Mad) 1443
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE R. JAYASIMHA BABU & THE HONOURABLE MR.
JUSTICE P. SATHASIVAM
M/s.Hotel Picnic (P) Ltd., represented by its Director, Rajendra Gupta and another
Versus
The Special Commissioner and Commissioner of Prohibition and Excise, Chepauk, Chennai and another
Writ Appeal No.2254 of 1999
Decided On : 30-11-1999
Sathish Parasaran for R.Parthasarathy, for Appellants. Patti B.Jaganathan,
Special Government Pleader (Writs), for Respondents.
The interpretation of the Tamil Nadu Liquor (Licence and Permit) Rules, 1981, particularly with regard to the service of liquor to citizens of India who do not stay in the hotel, is a matter for the appellate authority to determine.
Headnote:
LIQUOR LICENCE - SUSPENSION - APPEAL - STATUTORY APPELLATE AUTHORITY - JURISDICTION - STAY OF OPERATION OF IMPUGNED ORDER - RULES RELATING TO GRANT OF LICENCES - CONDITIONS - SERVICE OF LIQUOR TO CITIZENS OF INDIA WHO DO NOT STAY IN THE HOTEL - CONSTRUCTION OF RULES - DISTINCTION BETWEEN BAR AND IMFL SHOP - PUBLIC POLICY.
Fact of the Case:
The appellants, holding an F.L.3 license for their star hotel, were served with an order suspending their license for alleged violations of the Tamil Nadu Liquor (Licence and Permit) Rules, 1981. The appellants challenged the suspension order, arguing that the Commissioner of Prohibition and Excise erred in interpreting the Rules and that the service of liquor to citizens of India who did not stay in the hotel was not prohibited.
Finding of the Court:
The court held that the Commissioner had jurisdiction to pass the suspension order and that the appellants had an adequate remedy by way of appeal to the Government under the Tamil Nadu Prohibition Appeal and Revision Rules, 1983. The court also noted that the appellants could seek a stay of the impugned order from the appellate authority.
Issues: 1. Whether the Commissioner of Prohibition and Excise had jurisdiction to pass the suspension order? 2. Whether the appellants had an adequate remedy by way of appeal to the Government? 3. Whether the service of liquor to citizens of India who did not stay in the hotel was prohibited under the Tamil Nadu Liquor (Licence and Permit) Rules, 1981?
Ratio Decidendi: 1. The court held that the Commissioner had jurisdiction to pass the suspension order as the impugned order was an original order passed by the Commissioner in the discharge of his functions as a Collector. 2. The court held that the appellants had an adequate remedy by way of appeal to the Government under the Tamil Nadu Prohibition Appeal and Revision Rules, 1983. 3. The court declined to decide the issue of whether the service of liquor to citizens of India who did not stay in the hotel was prohibited under the Rules, as it was a matter for the appellate authority to determine.
Final Decision: The court dismissed the appeal, holding that the appellants had an adequate remedy by way of appeal to the Government and that the appellate authority would be free to adopt the construction which it considered proper with regard to the service of liquor to citizens who availed the services of the bar in a Star Hotel.
R. Jayasimha Babu, J.
The writ petition of the appellants was directed against the order made by the Commissioner of Prohibition and Excise on 20.9.1999 suspending the F.L.3 licence No.2/82-83. The reasons for suspension were furnished to the petitioners subsequently by the Commissioner on 29. 1999.
2. Theorder of suspension is one against which an appeal lies to the Government under Rule 2 of the Tamil Nadu Prohibition Appeal and Revision Rules, 1983. Rule 2(5) provides that an appeal shall lie to the Government from an original order passed by the Commissioner of Prohibition and Excise and against the original order passed by the Commissioner in the discharge of his functions as a Collector.
3. Since the impugned order has been passed by the Commissioner of Prohibition, that order being an original order, the appellate authority would be the Government. It is stated at the bar that the petitioner in fact has filed an appeal to the Government and that such appeal is pending. It is appropriate that the statutory appellate authority exercise its powers in relation to that appeal and render its decision, without that proceeding being rendered futile by any order of this Court at this
stage. It is not the case of the petitioner that the Commissioner has no jurisdiction at all in this matter. The objection is regarding the justification for the exercise of the jurisdiction a matter which can be agitated in the appellate forum.
4. The appellate authority under Rule 4 of the same Rules also has the power to stay the orders under appeal. Rule 4(1) provides that the authorities in whom appellate or revisional powers are vested by these rules, may order stay of operation of the orders appealed against to sought to be revised. It is open to the appellant to move the authority before whom the appeal is pending for stay of the impugned order.
5. It was, however, contended by learned counsel for the appellant that the reasons given for the suspension disclose a wholly erroneous understanding of the Rules. Counsel invited our attention to paragraph 2 of the order dated 29. 1999, wherein, it is stated, inter alia, that the flying squad had found 86 persons who were not staying in the hotel (outsiders) were consuming the liquor in the bar (violation of Rule 17(a), Rule 17(b)(iii) read with Rule 35(2) of the Tamil Nadu Liquor (Licence and Permit) Rules, 1981). Counsel contended that a proper reading of those Rules would clearly show that those Rules do not prevent the serving of liquor to persons whom do not stay in the hotel, as the provisions for personal permits which had existed earlier had been deleted, and after such deletion, it was open to any one to avail of the facility of the bar in the hotel, so long as the liquor was consumed inside the bar. The only prohibition, it was submitted, was the one against removing of the liquor in bottles from the the bar for consumption elsewhere, if the person did not stay in the hotel. For those stayed in the hotel, that prohibition did not operate, as the Rules referred to in the order of the Commissioner specifically permits persons staying in the hotel to remove liquor in bottles to the rooms in the hotel where they stay and in which the bar is operated.
6. Counsel invited our attention to Chapter IV of the Tamil Nadu Liquor (Licence and Permit) Rules which deals with Rules relating to the grant of licences. F.L.3 licence being the one relevant in case of star hotel. A “Star Hotel” is defined in Sec.2(xvi) of the Act. The conditions which are required to be satisfied are set out in Sub-clause (a) to (g) thereof. The nature of the licence is briefly described in Rule 17(a)(A) of the Rules in the following terms:
“Licence for possession of liquor by Star Hotels for supply to foreign tourists and foreigners resident in India holding personal permits and also citizens of India holding personal permits for consumption within the licensed room of the Hotel or for removal to their private
