VASANTHAKUMARAN v. THE COMMISSIONER OF EXCISE

..2.....WPC.NO.21245/2012 S*ADDL.R7 IMPLEADED:R7.LILLY KUTTY WILLIAM,W/O.MATHEW KUTTY,RESIDING AT DEEPTHI VILLA,MUNDAKKAL, KOLLAM.(*ADDL.R7 IS IMPLEADED AS PER ORDER DTD. 15/11/2012 IN I.A.NO.14040/2012) R1 TO R5 BY ADDL.ADVOCATE GENERAL SRI.P.C.IYPE BY SR.GOVERNMENT PLEADER SRI.SUJITH MATHEW JOSE ADDL R7 BY ADV. SRI.M.B.PRAJITH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-11-2012 ALONG WITH WPC. NO.25013/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:Kss WPC.NO.21245/2012 SAPPENDIXPETITIONER'S EXHIBITS:P1:COPY OF THE APPLICATION SUBMITTED BY THE 6TH RESPONDENT DATED 14/03/2012 OBTAINED UNDER THE RIGHT TO INFORMATION ACT.P2:COPY OF THE REPORT SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 3RD RESPONDENT DATED 22/03/2012 OBTAINED UNDER THE RIGHT TO INFORMATION ACT.P3:COPY OF THE REPORT DATED 01/08/2012 SUBMITTED BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT RECEIVED UNDER THE RIGHT TO INFORMATION ACT.P4:COPY OF THE SKETCH PREPARED BY THE 4TH RESPONDENT.P5:COPY OF THE COMMUNICATION DTD. 21/08/2012 SENT BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT RECEIVED UNDER THE RIGHT TO INFORMATION ACT.P6:COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER DTD.25/07/2012 SUBMITTED BEFORE THE 1ST RESPONDENT WITH COPY TO THE RESPONDENTS 2 TO 5.P6(A):TRUE TRANSLATION OF EXT.P6.P6(B):COPY OF THE POSTAL RECEIPTS.P7:COPY OF THE OBJECTIONI DTD. 20/08/2012 SUBMITTED BEFORE THE RESPONDENTS 1 TO 3 BY HAND.RESPONDENT'S ANNEXURES:ANNEX.R2(A):COPY OF THE PHOTOGRAPH HAVING ITS VIEW FROM THE N.H.ANNEX.R2(B): COPY OF THE PHOTOGRAPH WHICH SHOWS THAT THE EARLIER ENTRANCE FROM NH HAS BEEN PERMANENTLY CLOSED BY ERECTING CONCRETE WALL.ANNEX.R2(C): COPY OF THE PHOTOGRAPH HAVING THE VIEW OF THE HOTEL FROM THE SIDE ROAD EMERGING FROM NH.ANNEX.R2(D): COPY OF THE CLOSE-UP PHOTOGRAPH OF THE GATE FIXED ON THE SOUTH WESTERN SIDE OF THE COMPOUND OF THE HOTEL./TRUE COPY/P.A.TO JUDGE Kss PIUS C.KURIAKOSE & BABU MATHEW P.JOSEPH JJ.------------------------ W.P.(C) Nos. 21245 & 25013 OF 2012------------------------Dated this the 26th day of November, 2012JUDGMENTPius C.Kuriakose,JBoth these writ petitions are filed as public interestlitigation against what is described as the arbitrary,unreasonable and illegal steps taken by the official respondentsin W.P.(C) No.25013/2012, respondents 1 to 4 in W.P.(C)No.21245/2012 to grant FL-3/FL-11 licences to a hotel byname Royal Fort managed by the 6th respondent in both thesewrit petitions. It is submitted in both these writ petitions thatthe CSI Church is situated at any rate 141 meters from theHotel of the 6th respondent where the 6th respondent is proposingto start a bar as well as a beer parlor. It is pointed out in boththe writ petitions that the 5th respondent in W.P(C) W.P(C) Nos. 21245 & 25013/122No.25013/2012 - the Circle Inspector of Excise, Kollam in hisearlier report which is produced as Ext.P2 in both the writpetitions categorically found that the distance between the churchand the hotel is only 141 meters. But, in a subsequent reportdated 30/7/2012, it is seen reported that the distance is 212meters on the reason that the original gate fixed in thecompound wall of the hotel has now been removed and a newgate has been fixed by the 6th respondent on a private road fromwhere the prohibitory distance is now calculated . The 4threspondent – Deputy Commissioner of Excise has asked for theexplanation of the 5th respondent , the Circle Inspector ofExcise, Kollam for the shift in the stand of the 5th respondent inhis report dated 30/7/2012. The petitioners submit that thereare several other bar hotels very near to the hotel of the 6threspondent and there is also a retail outlet of the Kerala StateBeverages Corporation and therefore there is no local need tostart a new bar in the area where the hotel of the 6th respondentis situated. It is also submitted that granting of the newlicence to the 6th respondent by the Excise Authorities will gocontrary to the Abkari Policy declared by the Government. W.P(C) Nos. 21245 & 25013/123Granting licence to the 6th respondent will be totally againstpublic interest. Raising various grounds it is prayed in W.P.(C) NO.25013/2012 as follows; i). Issue a writ of certiorari or otherappropriate writ, order or direction to quashExhibit-P8 order issued by the 5th respondentand Exhibit-P4 order issued by the 7threspondent.ii). Issue a writ of mandamus or otherappropriate writ order or direction restrainingrespondents 1 to 5 from granting FL-3/FL-11licences to the Hotel Fort Hotel at KundaraQuilon managed by the 6th respondent. Iii). Issue a writ of mandamus or otherappropriate writ order or direction directingthe 1st respondent to consider and passappropriate orders on Exhibit.P10 representationsubmitted by the petitioner and to keep inabeyance all further proceedings initiated byrespondents 2 to 5 to grant FL-3/FL-11 licences tothe Royal Fort Hotel of the 6th respondent till afinal decision is taken on Exhibit-P5 after affordingto the petitioner an opportunity of being heard. 2. The prayers in W.P.(C) No.21245/2012 are the following:i).issue a writ of Mandamus or any appropriatewrit, order or direction, directing the respondentNos. 1 to 5 not to grant Fl 3 and Fl 11 license, ifit violates the distance Rule as reported by the4th respondent in Ext.P2 report:ii).Issue a writ of Mandamus or any otherappropriate writ, order or direction, directingrespondents 1 to 5 to consider and passappropriate orders on Exts.P6 and P7 objections W.P(C) Nos. 21245 & 25013/124forthwith, before sanctioning FL11 and FL 3 licenseto the 6th respondent or within a time frame fixedby this Hon'ble Court. Iii). Issue a writ of Mandamus or any otherappropriate writ, order or direction, directingrespondents 1 to 5 to keep in abeyance the grantingof FL11 and Fl3 license to the 6th respondent till adecision is taken by them in Exts.P6 and P7objections. 3. The 6th respondent has filed a detailed counter affidavit inW.P.(C) No.25013/2012. In that writ petition Sri.KoshyPanicker, who is the owner of the building where the hotel isbeing conducted, has filed I.A. No.15015/2012 seeking hisimpleadment in that case as an additional 8th respondent. InW.P.(C) No.21245/2012 the 2nd respondent (the DeputyCommissioner of Excise, Kollam) has filed a detailed statementalong with which Annexures R2(a) to R2(d) are produced. Thisstatement is filed pursuant to the direction issued by this court.In that case I.A. No.14040/2012 has been filed by a lady byname Lilly Kutty William, who claims to be worshiper in CSIChurch, Kundra. She prays that she may be impleaded asadditional 7th respondent in that writ petition, so that she cansupport the writ petitioner. The impleadment application in W.P(C) Nos. 21245 & 25013/125W.P.(C) No.25013/2012 was allowed and accordingly,additional 8th respondent Sri.Koshy Panicker, the landlord wasimpleaded as additional 8th respondent in that case. Theimpleadment application in W.P.(C) No.21245/2012 wasallowed and we heard the impleadment petitioner's counselalso. 4. The contention raised by the 6th respondent hotel owner inW.P.(C) No.25013/2012 in his counter affidavit is that the writpetitioner is not espousing any public interest in filing the writpetition. He is actually financed by the two rival licencesconducting bar attached hotels very near to the hotel of the 6threspondent. Modern Hotel situated near to the hotel of the6th respondent has no star classification. The said hotel isconducted as a retail liquor shop and another similar hotelconducting another bar hotel are behind the petitioner. Thepetitioner has filed petitions before the local authorities andalso before the Ministry of Tourism against the numbering of thehotel and classification of the hotel respectively. The rival hotelowners are filing anonymous petitions before all the authoritiesand their only intention is to deny license to the 6th respondent. W.P(C) Nos. 21245 & 25013/126Reliance is placed on the various decisions of the SupremeCourt including decision in Kushum Lata v Union of India &others (2006)6 SCC 180) for contending that the writ petitionis not maintainable as it is not genuine public interest which isbeing espoused. It is pointed out that the petitioner has nogrievance about 700 other bar hotels which are functioning inthe State. It is then submitted that the writ petition ispremature/infructuous and amounts the violation of thedirections of the Hon'ble Supreme court in SLP (C)No.27170/2012. It is pointed out that when the application ofthe 6th respondent for issuance of FL-3 license was pending, subrule 3E was introduced with effect from 27/3/2012 disqualifyingthe hotels from getting bar license, if the hotel is located withinthree k.m. of another bar in the Panchayat areas and 1 k.m.From another bar in Municipal areas. Writ petitions were filedby the 6th respondent and similarly placed parties challengingthe validity of the order. W.P.(C) No.8840/2012 was filed bythe 6th respondent. A Division Bench of this court allowed all thewrit petitions and struck down both the rules including sub rule3E by the judgment which is reported in Surendra Das B. v. W.P(C) Nos. 21245 & 25013/127State of Kerala & others ( 2012 (3) KHC 653 (DB) . The Statefiled Special Leave Petitions before the Hon'ble Supreme Courtchallenging the above common judgment. The Supreme Courtdid not grant any interim stay of operation of the abovejudgment. But after admitting the SLPs, the Hon'ble SupremeCourt has passed a common order directing the Government toconsider the application within eight weeks and issue license ifthe application are otherwise eligible. Ext.R6(a) is the copy ofthe above common interim order issued by the Supreme Courton 19/9/2012. Pursuant to that on 22/9/2012, the 6threspondent submitted a letter before the Secretary, Taxes (A)Department, Government of Kerala as well as before the ExciseCommissioner, Kerala, producing Ext.R6(a). Ext.R6(b) is thecopy of that letter. It is submitted that interim order passedby this court in the writ petition runs counter to Ext.R6(a)order issued by the Supreme Court. It is then contended thatExts.P7 and P8 in W.P.(C) No. 25013/2012 which has sought tobe cancelled are clearly not maintainable. Exts.P7 and P8 arethe reports submitted by the Deputy Excise Commissioner,Kollam and the Circle Inspector of Excise, Kollam for W.P(C) Nos. 21245 & 25013/128consideration of the application submitted by the 6th respondentfor a bar licence. Whether the rule introducing 200 meterswith effect from 18/4/2012 is applicable to the case of the 6threspondent is also to be considered by the Excise Commissionerand the Joint Excise Commissioner while considering the barlicense application submitted by the the respondent pursuant tothe directions in Ext.R6(a) order of the Supreme Court. Anyinterference by this court at this juncture will not be proper.The Excise Commissioner and the Joint Excise Commissioner arethe fact finding authorities. What exactly is the distance fromthe gate of the hotel to the gate of the church is a disputedquestion of fact. 5. We have heard the submissions of Sri.N.NandakumaraMenon learned senior counsel for the writ petitioner in W.P.(C)No.25013/2012 and Smt.K.V.Rashmi learned counsel for the writpetitioner in W.P.(C) NO.21245/2012. We have heard thesubmissions of Sri.C.C.Thomas learned senior counsel for theadditional 8th respondent in W.P.(C) NO.25013/2012 and we havealso heard the submissions of Sri. Gopinatha Menon learnedcounsel for the 6th respondent in both the writ petitions. We have W.P(C) Nos. 21245 & 25013/129heard all the submissions of the learned counsel for theimpleadment petitioners in the writ petitions. 6. The submission of Sri.Nandakumara Menon learnedsenior counsel was that CSI Church is situated within theprohibitory distance of 200 meters from the gate of the hotel.According to Mr.Menon, it was so clearly reported in Ext.P2report submitted by the 5th respondent to the 4th respondentthat the Church, which is situated on the eastern side of theHotel, is situated 141 meters away from the main gate of thehotel. Therefore, the steps taken by the authorities to grant FL-3/FL-11 licences to the hotel of the 6th respondent are violativeof Rule 13(3) and 13 (11) of the Foreign Liquor Rules. It wasthen submitted that after Ext.P2 report was submitted by the5th respondent to the 4th respondent, the 6th respondent haschanged the lie of the property by changing the location of theexisting main gate of the Hotel by constructing a new gate in the12 ½ cents of property belonging to the 6th respondent which waslet out to the owner of the Royal Fort Hotel on rent for thepurpose of parking cars. It was submitted that main gate of theHotel was closed by the 6th respondent in order to artificially W.P(C) Nos. 21245 & 25013/1210increase the distance of 200 meters between the CSI Church andthe Hotel to facilitate the consideration of their secondapplication for licence. But the fact remains that the Church issituated within a distance of 120 meters from the Hotel. Thenew pathway has been constructed through the private propertyonly and it is not a public pathway or road. Mr.Nandakumarwould draw our attention to the judgment of this court in Josephv. Excise Commissioner ( 1988 (2) KLT 913) in support of hisarguments. 7. Per contra, the main submission of Sri.C.C.Thomaslearned senior counsel was that the issue as to what exact is thedistance between the hotel and the Church is an issue of fact tobe decided by the statutory authorities first. The statutoryauthorities have been directed by the Hon'ble Supreme Court totake a decision on licence application in accordance with law. Mr.Thomas would place reliance on the judgment of this court inSurendra Das B.v. State of Kerala (2012 (3) KHC 653 (DB) . Thelearned counsel drew our attention to the relevant rules. 8. Smt.Rashmi in her submissions would supportMr.Nandakumara Menon, where as Gopinatha Menon the learned W.P(C) Nos. 21245 & 25013/1211counsel for the 6th respondent would strongly support thesubmissions of Sri.C.C.Thomas learned senior counsel.Mr.Menon highlighted that the writ petitions will have to bethrown out as they have not been instituted in a genuine publicinterest.9. Having given our anxious consideration to the rivalsubmissions addressed at the Bar, we are of the view that it istoo early for this court to decide the question as to whetherthe proposed Bar is located within the prohibited distance fromCSI Church. Whether the proposed Bar is located within theprohibited distance as per the amended rule and whether theamended rule is applicable in the present case is a matter to bedecided by respondents 2 or 3 as the case may be. Some ofthe submissions addressed before us by Mr.Nandakumara Menonand Smt.Rashmi regarding the artificiality of the latest reportsubmitted by the Circle Inspector of Excise were certainlyattractive. Equally attractive was the submission of GopinathaMenon regarding the locus standi of the writ petitioners whoappear to have grievances only against the Bar proposed to bestarted by the 6th respondent. The argument that, Ext.R6(a) W.P(C) Nos. 21245 & 25013/1212order of the Hon'ble Supreme Court produced by the 6threspondent in W.P.(C) No.25013/2012 cannot have anyapplication in these cases, does not appeal to us. It may be truethat the writ petitioners are not parties to that order. But, theabove order was passed by the Hon'ble Supreme Court in SpecialLeave Petitions (Civil) filed by the State of Kerala against thejudgment of this court in the writ petitions filed by the 6threspondent and others striking down rules including Sub Rule3E. Significantly, the Hon'ble Supreme Court did not grant stayof operation of the judgment of this court which is reported inSurendra Das B.v.State of Kerala ( cited supra). Ext.R6(a) waspassed as a common interim order directing the Government toconsider of all the applications for licences within eight weeks andissue license to the applicants or otherwise eligible. According tous, the only relief, which the writ petitioners can legitimatelyaspire for, is a right of hearing pursuant to Ext.R6(a) whenhearing is conducted by the authorities regarding the licenceapplication submitted by the 6th respondent. 10. The result of the above discussion therefore is asfollows; W.P(C) Nos. 21245 & 25013/1213 Both these writ petitions are disposed of with the followingdirections;i). Interim order issued by this court is vacated. ii). The Excise Commissioner or the Joint ExciseCommissioner, whichever authority is conducting hearingpursuant to Ext.R6(a) order of the Hon'ble Supreme Court, isdirected to afford opportunity of hearing to the writ petitionersalso. iii). The writ petitioners are given the liberty of urging alltheir objections against the grant of licence to the 6th respondentincluding the objections which they have highlighted in thesewrit petitions in the context of distance rule. Sd/- PIUS C.KURIAKOSE,JUDGESd/- BABU MATHEW P.JOSEPH,JUDGE. dpk/True copy/P.A to Judge. W.P(C) Nos. 21245 & 25013/1214 W.P(C) Nos. 21245 & 25013/1215 W.P(C) Nos. 21245 & 25013/1216