Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE THURSDAY, THE 31ST DAY OF JANUARY 2013 11TH MAGHA 193 WP(C).No. 23398 of 2012 (Y) --------------------------- PETITIONER: -------------------- P.J.JOHN,AGED 5 YEARS, S/O.P.M.JOHN, PROPRIETOR, J.JOHNS HOTELS(CLASSIK FORT), POONITHURA, ERNAKULAM DISTRICT, PIN-682 038. BY SRI. C.C.THOMAS, SENIOR ADVOCATE BY ADVS.SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, TAXES (A) DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM-695 001.
3. THE DEPUTY COMMISSIONER OF EXCISE, ERNAKULAM -682 018.
4. THE CIRCLE INSPECTOR OF EXCISE, THRIPUNITHURA, ERNAKULAM ”
301. R1 TO R4 BY SR.GOVERNMENT PLEADER SRI.VIJU ABRAHAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.23398/2012 Y APPENDIX PETITIONER'S EXHIBITS: EXT.P1 PHOTOCOPY OF THE STAR CLASSIFICATION CERTIFICATE DATED 14 2/2012 ISSUED BY THE INDIA TOURISM DEPARTMENT, CHENNAI. EXT.P2 PHOTOCOPY OF THE ORDER DATED 19 9/2012 IN SLP(C)NOS 26241.26243/2012 PASSED BY THE HON'BLE SUPREME COURT. EXT.P3 PHOTOCOPY OF THE APPLICATION DATED 7 3/2012 SUBMITTED BEFORE THE 2ND RESPONDENT. EXT.P4 PHOTOCOPY OF THE JUDGMENT DATED 26 3/2012 IN WP(C) NO.6314/2012 PASSED BY THIS HON'BLE COURT. EXT.P5 PHOTOCOPY OF THE ORDER NO.XC6-6701/12 DATED 15 5/2012 PASSED BY THE 2ND RESPONDENT. EXT.P6 PHOTOCOPY OF THE LETTER DATED 20 6.2012 SENT TO THE 2ND RESPONDENT. EXT.P7 PHOTOCOPY OF THE ORDER DATED 17 9/2012 IN CONT.CASE(C) NO.1328/2012 PASSED BY THIS HON'BLE COURT. EXT.P8 PHOTOCOPY OF THE ORDER NO.XC6-6701/12 DATED 20 9/2012 PASSED BY THE 2ND RESPONDENT. EXT.P9 PHOTOCOPY OF THE JUDGMENT DATED 1 2.2002 IN O.P.NO.24368/2001 PASSED BY THIS HON'BLE COURT. EXT.P10 PHOTOCOPY OF THE JUDGMENT DATED 21 2.2002 IN W.P.(C) NO.19489/2010 PASSED BY THIS HON'BLE COURT. EXT.P11 PHOTOCOPY OF THE LETTER DATED 28 7/2012 ISSUED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT. EXT.P12 PHOTOCOPY OF THE LETTER DATED 3 8/2012 SENT BY THE JOINT EXCISE COMMISSIONER TO THE 2ND RESPONDENT. EXT.P13 PHOTOCOPY OF THE LETTER DATED 17 8/2012 SENT BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT. EXT.P14 PHOTOCOPY OF THE LETTER DATED 3 9/2012 SENT BY THE JOINT EXCISE COMMISSIONER TO THE 2ND RESPONDENT. Kss ..2/- ..2.... WPC.NO.23398/2012 Y RESPONDENT'S EXHIBITS: R2(A): COPY OF THE REPRESENTATION DTD. 15/07/2011 SUBMITTED BY THE RESIDENTS OF GANDHI SQUARE. R2(B): COPY OF THE ORDER DTD. 19/08/2011 OF THE SUPREME COURT. /TRUE COPY/ P.A.TO JUDGE Kss A.M. SHAFFIQUE, J --------------------------------------- W.P. (C) NO. 23398 OF 201.---------------------------------------- Dated this the 31st day of January, 2013 JUDGMENT The petitioner challenges Ext. P8 by which he is denied FL- 3 and FL-11 license on the ground that the Hotel in which he intend to start operations was situated in front of Mahatma Gandhi statue.
2. The facts as disclosed from the records will reveal that the petitioner applied for FL-3 and FL-11 licence which had to be recommended by the Excise authorities. But in the recommendations the authorities had indicated that the hotel is situated just 10 meters away from the statue of Mahatma Gandhi and the junction itself is known as Gandhi Square. The main contention urged by the petitioner is that there is no prohibition under any of the Abkari Rules for grant of FL-3 or FL-11 license in such an area as the hotel is constructed complying with all the conditions for operating it as a Bar Hotel and unless FL-3 or FL- 11 license is granted it will amount denying the petitioner the right to carry on Bar Hotel business.
3. The learned Senior Counsel for the petitioner submits W.P. (C) NO. 23398 OF 201.2 that in so far as there is no prohibition under the Act to have a Bar Hotel or beer/wine parlour functioning near Mahatma Gandhi statue, such restrictions cannot be imposed. Still further it is contended that several Bar Hotels are situated in the nearby locality which is 1 km away and there is an outlet of Beverages Corporation which is not so far from the statue. If a prohibition is made by the Excise authorities the same Rule should apply to other outlets also and in so far as such activities are permitted by the Excise Department, the fact that there is a Mahatma Gandhi statue near the petitioner's hotel should not be a reason to deny the said benefit.
4. The second respondent has filed a counter affidavit stating that opening a bar hotel or beer/wine parlour near the statue of Mahatma Gandhi is against public interest and in that view of the matter in terms of Rule 39 of the Foreign Liquor Rules, it is open for the Department to refuse the license.
5. Heard the learned Senior Counsel Sri. C.C. Thomas and the Senior Government Pleader Sri. Viju Abraham.
6. The short question to be considered is whether Rule 39 permits the Department to refuse the FL-3 or FL-11 license to W.P. (C) NO. 23398 OF 201.3 the petitioner for the reason that it is nearby the statue of Mahatma Gandhi. It is not in dispute that the criteria to be followed by the hotels to have FL-3 or FL-11 license has been followed by the petitioner and it is also not in dispute that he would have constructed the hotel taking into consideration the fact that he is entitled for either FL-3 or FL-11 license and especially on account of the fact that other Bar Hotels and an outlet are situated nearby the said property.
7. But the question to be considered is whether Rule 39 can be invoked for the reason that there is a statue of Mahatma Gandhi 10 meters away from the petitioner's hotel. The Rule 39 reads as under:- "No license will be issued for a shop which is situated or which is intended to be opened in a place where on grounds of public interest or expediency, it is objectionable to permit any traffic in liquor".
8. The authorities have clearly indicated in Ext. P8 that the license had been refused on the ground that the hotel is near to the statue of Mahatma Gandhi and therefore in public interest it is not advisable to have a liquor shop in that place. It cannot be disputed that all the citizens of the nation will have to respect W.P. (C) NO. 23398 OF 201.4 our Mahatma and if the authorities have found that the existence of the Mahatma Gandhi statue hardly 10 meters away can be a reason for rejecting the FL-3/FL-11 license, I do not think that this Court can take a different view in the matter.
9. The learned counsel for the petitioner relied upon the judgment of learned single judge of this Court in Bhargavan v. Thankappan [1989(1) KLT 719.to indicate that the statue of Sree Narayana Guru is not a temple within the meaning of the Abkari Rules. I do not think that this judgment will have any application to the factual circumstances involved in this case. In this case the question involved is whether FL-3 or FL-11 license can be issued to a hotel situated only 10 meters from the statue of Mahatma Gandhi which had been there for the last several years. The learned Senior Counsel for the petitioner further submits that at least FL-11 license ought to have been issued as the conditions for vending beer/wine is very stringent and that the same will be consumed only inside the premises of the hotel and to cater the requirements of occupants who come for lodging. W.P. (C) NO. 23398 OF 201.5 10. But the fact remains that when beer/wine parlours function, the hotel definitely exhibits advertisement or hoarding to indicate that there exists a beer or wine parlour. To exhibit such boards in front of the Mahatma statue, will definitely have an adverse impact on any citizen who loves the great soul. If the Excise authorities have considered that in public interest, such a beer/wine parlour or bar should not be permitted I do not think that there is any justification on the part of this Court to interfere with the orders passed by the Excise Authority. In the result the writ petition is dismissed. sd/- A.M. SHAFFIQUE JUDGE DCS