Asokan Vasu vs State of Kerala, Excise Commissioner, Assistant Excise Commissioner and Circle Inspector of Excise

Antony Dominic, J.—The issue raised in this writ petition is the claim of the petitioner to allow sale of Foreign Made Foreign Liquor in the restaurant attached to his hotel.

The petitioner submits that he has established a hotel by name Asliyya Grande at Navaikulam in Thiruvananthapuram District. It is stated that by Ext.P1, the Tourism Department of the Government of India, have given three star classification to the hotel. The petitioner submits that on an application made by him, the respondents have issued licence in the form FL-3 under Rule 13(3) of the Foreign Liquor Rules, enabling him to sell the liquor within the licensed premises in accordance with the provisions contained in the Abkari Act and the Rules.

According to the petitioner, subsequently, as per Exts.P3 & P5, the petitioner has also obtained sanction under Rule 13(3A) of the Foreign Liquor Rules for the purchase of Foreign Made Foreign Liquor directly from the Customs Department, subject to payment of additional annual rental. It is stated that thereafter he made Ext.P4 application to permit him to sell such Foreign Made Foreign Liquor in the restaurant and that orders were not passed by the respondents. It is in these circumstances, the writ petition is filed.

The stand of the respondents, as reflected in the statement filed by the 4th respondent, is that as per the approved plan, the hotel is having only one restaurant in the first floor, which is earmarked as a family restaurant. It is stated that in terms of the conditions of the licence, and the provisions of the Foreign Liquor Rules, the hotel should have an exclusive family restaurant for the use of families and others, where liquor shall not be served. It is also stated that a bar counter has already been sanctioned inside the bar hotel, and that there is no provision in the Foreign Liquor Rules to allow setting up of one more counter in the licensed premises.

The provisions of Rule 13(3) and the conditions of Ext.P2 licence show that the respondents are justified in their contention. In terms of the above, liquor can be sold and served to residents of the hotel in the rooms, wherein they reside and in the restaurant where they partake food. It is further provided that hotels can serve liquor by the side of swimming pools, lawns or roof gardens on obtaining special annual permit from the Excise Commissioner. Similarly, to serve liquor in the restaurant also, additional payment is provided. However, the Rule provides that such hotels should have an exclusive restaurant for the families and others, where no liquor shall be served.

Therefore, in so far as this case is concerned, going by the plan approved by the respondents, there is only one restaurant and if that be so, that restaurant has to be an exclusive family restaurant, where no liquor shall be served.

However, the petitioner, along with I.A. No. 8706/2008 filed for amending the writ petition, filed an affidavit, where it is stated that there are three restaurants in the hotel. If, as a matter of fact, going by the approved plan, there are more restaurants than one, in terms of the provisions contained in the Rules, permission can be obtained for sale of liquor in one of the restaurants, of course providing family restaurant as required under the Rules. Therefore, it is for the respondents to consider the correctness of this averment in the light of the plan approved by them.

Therefore, it is directed that it will be open to the petitioner to approach the 3rd respondent with an appropriate representation, and the approved plan, and thereupon, the 3rd respondent shall examine as to whether, in terms of the approved plan, there are more restaurant than one, and if so, the petitioner will be permitted to sell liquor in such additional restaurant, subject to other provisions contained in the Rules.

The petitioner may make an application in this behalf within two weeks from today, in which event, the matter shall be examined, and orders passed as above, as expeditiously as possible, at any rate, within four weeks thereafter.

The writ petition is disposed of as above.