ANWAR SADATH ESI PUDUVAL v. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHURAM; THE DEPUTY COMMISSIONER OF EXCISE, KOLLAM; SMT. SREEDEVI AMMA, PROPRIETRESS, HOTEL CENTRAL PARK, KADAPPAKKADA, KOLLAM

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN TUESDAY, THE 20TH DAY OF NOVEMBER 2012/29TH KARTHIKA 1934 WP(C).No. 10609 of 2012 (A) --------------------------- PETITIONER: ----------ANWAR SADATH ESI PUDUVAL, SREE KRISHNA NAGAR, ASRAMAM KOLLAM. BY ADVS.SRI.A.SUDHI VASUDEVAN SMT.K.PUSHPAVATHI RESPONDENTS: ------------ 1. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM-695 001. 2. THE DEPUTY COMMISSIONER OF EXCISE, KOLLAM-691 001. 3. SMT.SREEDEVI AMMA, PROPRIETRESS, HOTEL CENTRAL PARK, KADAPPAKKADA, KOLLAM-691 001. R3 BY ADV. SRI.M.G.KARTHIKEYAN R3 BY ADV. SRI.NIREESH MATHEW R1,R2 BY GOVERNMENT PLEADER SRI P.P.PADMALAYAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 10609 of 2012 (A) ## **A P P E N D I X** ## PETITIONER'S EXHIBITS EXT.P1 TRUE COPY OF IDENTITY CARD 24/1/2008 ISSUED BY THE ELECTION COMMISSION OF INDIA TO THE PETITIONER. EXT.P2 TRUE COPY OF THE PHOTOGRAPH OF THE GATE OF THE LITTLE FLOWER LOWER PRIMARY SCHOOL KOLLAM. EXT.P3 TRUE COPY OF PHOTOGRAPH OF THE OPENING MADE AFTER DEMOLISHING THE COMPOUND WALL OF THE SCHOOL. EXT.P4 TRUE COPY OF THE REGISTERED ASSIGNMENT DEED 12/4/2002 BEARING DOCUMENT NO.1464/2002 EXECUTED IN FAVOUR OF ST.THOMAS EVANGELICAL CHURCH. EXT.P5 TRUE COPY OF THE PHOTOGRAPH OF THE CHURCH BUILDING. EXT.P6 TRUE COPY OF THE REPRESENTATION DATED 27/3/2012 PRESENTED BY THE PETITIONER BEFORE THE IST RESPONDENT. EXT.P7 TRUE COPY OF THE LAST REPRESENTATION DATED 27/3/2012 PRESENTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P8 TRUE COPY OF ORDER DATED 29/3/2012 ISSUED BY THE IST RESPONDENT TO THE 3RD RESPONDENT. /TRUE COPY/ P.A TO JUDGE ## **K.SURENDRA MOHAN, J. ----------------------------------------------------W.P(c) No.10609 of 2012-A ---------------------------------------------------Dated this the 20[th] November, 2012** ## **J U D G M E N T** The petitioner, who claims to be a social activist, has filed this Writ Petition challenging Ext.P8 order of the 1[st] respondent granting an FL11 (Beer/Wine Parlour) Licence to the 3[rd] respondent. The 3[rd] respondent is conducting a hotel by name `Hotel Central Park' at Kadappakkada, Kollam. The allegation of the petitioner is that the hotel is situate within the prohibited distance stipulated by Rule 13(3) of the Foreign Liquor Rules. It is contended that the distance from the hotel to the gate of the Little Flower Lower Primary School is only 120 meters. The petitioner has another objection that the Evangelical Church of India is situate at a distance of less than 100 meters from the hotel. For the above reasons, it is contended that Exct.P8 is liable to be quashed. 2. Separate counter affidavits have been filed by the 2[nd] respondent as well as the 3[rd] respondent. According to the counter affidavit filed by the 2[nd] respondent on behalf of the 1[st] **W.P(c) No.10609 of 2012-A** 2 respondent also, it is contended that the 3[rd] respondent had submitted an application for the grant of an FL3 licence since the hotel possessed three star classification issued by the Government of India, Southern Regional Office, Chennai. As per the counter affidavit, the hotel is situate at an unobjectionable site. The Little Flower L.P School, Kadappakkada, is situate at a distance of 205 meters from the hotel. According to the counter affidavit, the Evangelical Church of India is not a Church at all, coming within the definition of the said expression as per Note 1 to Rule 13(3) of the Foreign Liquor Rules. In view of the objections, an enquiry was conducted through the Additional Excise Commissioner (Central Zone). He conducted an inspection of the objectionable building and found that the same was not a Church. Apart from the above, it is pointed out that an FL-1 shop No.02006 at Prathibha Junction of Kollam Range, licensed as 06/11-12 run by the Kerala State Beverages Corporation Ltd. is situate at a distance of 10 meters on the opposite side of the road. In spite of the existence of the said building of the Evangelical Church of India, it has been found that the site is an unobjectionable one. However, the petitioner has not been granted an FL3 licence for the reason that an **W.P(c) No.10609 of 2012-A** 3 amendment had been brought to the Foreign Liquor Rules in the meantime disentitling three star hotels from applying for FL3 licence. For the said reason that the 3[rd] respondent had applied for the grant of an FL11 licence. 3. A counter affidavit has been filed by the 3[rd] respondent supporting the contentions of respondents 1 and 2. According to the 3[rd] respondent, the above Writ Petition itself is filed at the instance of a rival licence holder, the owner of one `Xavier's Residency', a three star classified hotel with a Bar licence. The owner of the said hotel, according to the 3[rd] respondent, is conducting 5 to 6 Bar hotels at Kollam itself besides other hotels outside Kollam. It is alleged that it is the said person who has caused the above Writ Petition to be instituted through the petitioner, who is one of his proxies. According to the 3[rd] respondent, the site of the hotel is an unobjectionable one and the institutions that are pointed out by the petitioner are outside the prohibited distance. For the above reasons, it is contended that the Writ Petition is only liable to be dismissed. 4. According to Advocate Sri Sudhi Vasudevan, who appears for the petitioner, Ext.P2 photograph shows the main 4 **W.P(c) No.10609 of 2012-A** gate of the Little Flower L.P.School. Measured from the said gate, the 3[rd] respondent's hotel is within the prohibited distance, it is contended. However, at the influence of the 3[rd] respondent, the main gate has been closed down and an opening has been made in the compound wall of the school so as to enable the 3[rd] respondent's hotel to obtain a Bar licence. Measured from the present entrance, the 3[rd] respondent's hotel would be outside the prohibited distance. Therefore, it is contended that the distance from the main gate should be taken into account while deciding whether the 3[rd] respondent's hotel is within the prohibited distance or not. 5. The learned counsel also places reliance on Ext.P4 sale deed by which the Evangelical Church of India has purchased their property. Reference is made to Ext.P5 photograph which shows the board that has been displayed on the said building. It reads `St.Thomas Evangelical Church of India, Kollam' (when translated in the English). On the same board, it has been stated that time of worship : Sunday 8 AM - 10 AM, Sunday School time: Sunday 10 AM – 10.30 AM. Another photograph has been produced along with the reply affidavit filed by the petitioner, where a cross is also visible. On the basis **W.P(c) No.10609 of 2012-A** 5 of the above, it is contended that, the building in question is a Church answering the definition thereof contained in Note 1 to Rule 13(3) of the Foreign Liquor Rules. 6. The learned counsel for the 3[rd] respondent on the other hand refutes the contentions of the learned counsel for the petitioner pointing out that the above aspects have been considered by the 1[st] respondent. An inspection was conducted by no less a person than the Additional Excise Commissioner (Administration), who has found that the structure pointed out by the petitioner was not a Church at all. It is pointed out that, no evidence or material has been produced by the petitioner to justify a conclusion that the said finding is erroneous or liable to be set aside. It is also contended that the petitioner is only the name lender of a rival bar licencee. Therefore, it is contended that this Writ Petition is liable to be dismissed. 7. I have heard the learned counsel appearing for the contesting parties. I have also considered the rival contentions anxiously. 8. As per Ext.P8, the 1[st] respondent has found that the 3[rd] respondent is entitled to be granted an FL11 licence to conduct a Beer/Wine Parlour in her hotel. It is the very same 6 **W.P(c) No.10609 of 2012-A** criteria that are applicable for the grant of an FL3 bar licence also. It has been found by the Additional Excise Commissioner (Administration) who conducted an inspection of the site that the structure pointed out by the petitioner as Church is not actually a Church. Note 1 to Rule 13(3) of the Foreign Liquor Rules defines Church to be a public place where prayer is offered by Christians. The photograph Ext.P5 and the photograph produced along with the reply affidavit (wrongly marked as Ext.P6) do not show that the building in question is a Church. In fact, the board that is visible in Ext.P5 does not claim that the building is a Church. The board only shows `St.Thomas Evangelical Church of India, Kollam', which is only one of the smaller sects within Christianity. The rest of the inscriptions on the board only discloses the time of worship and the time of Sunday Class. According to the counter affidavit filed by the 2[nd] respondent, the Additional Excise Commissioner (Administration) has conducted an inspection and has made inquiries with the local people. He has reported that the said structure remains closed during week days and that `on certain Sundays some people come there between 8 AM and 10 AM. No activity takes place thereafter in the building and no one is **W.P(c) No.10609 of 2012-A** 7 residing in the building'. Therefore he has concluded that the building is not a Church. No material or evidence is placed before me to find that the said conclusion is wrong or without any justification. 9. The second objection of the petitioner is that the distance from the Little Flower Lower Primary School to the gate of the 3[rd] respondent's hotel is 120 meters. However, the petitioner himself states that the school has made a different opening, which is being used as the means of ingress and egress by the school authorities. Though it is stated that the said entrance has been made under the influence of the 3[rd] respondent, there is no evidence to support the said contention. From the averments made, it is evident that the distance to the 3[rd] respondent's hotel calculated from the alleged new entrance that has been made is beyond the distance limit stipulated by Section 13(3) of the Rules. It is also worth noticing that neither the Church authorities nor the school authorities have any complaint. 10. The above being the factual situation, I do not find any infirmity with the impugned order Ext.P8. The learned counsel for the petitioner has placed reliance on the decision in 8 **W.P(c) No.10609 of 2012-A** **Divakaran v. Commissioner of Excise** [2010(1) KLT 19] where it has been held that a prayer hall used by Christians belonging to Pentecostal denomination occasionally, comes within the definition of a Church. In the said case, it is worth noticing that the Commissioner of Excise had found that there is a prayer hall and a parsonage situate in an extent of 65 cents and that 200 family members attend the prayers and service there. It is also reported that service is conducted on all days except Tuesdays and Thursdays. It was on the basis of the said factual material that the said place was held to be an unobjectionable one. However, in the present case, there is no evidence to show that any service is being conducted in the site pointed out by the petitioner. 11. The learned counsel has also placed reliance on the decision of this Court in **Thilakan v. Commissioner of Excise** [2009(3) KLT 229], where it has been held that a Thycavu and a Niskarapally are also structures coming within the definition of a Mosque. This Court has held that public places where prayers are offered by Muslims would be treated as a Mosque. It is pointed out that the very same definition is adopted in the case of a Church also. However, the definition requires that the place 9 **W.P(c) No.10609 of 2012-A** should be a public place where prayers are offered by the Christians. There is no evidence or material to justify a conclusion that the structure pointed out by the petitioner is a public place where prayers are offered by the Christians. For the above reason, I am not satisfied that the above decisions are of any help to the petitioner's case. 12. The learned counsel for the petitioner has pointed out that though Exts.P6 and P7 representations had been submitted to the 1[st] respondent in March, 2012, no action has been taken thereon by either the 1[st] respondent or the 2[nd] respondent. The learned counsel seeks the issue of a direction to consider and pass orders on Exts.P6 and P7 since no order rejecting the said representations have been produced by the respondents. Since neither the 1[st] respondent nor the 2[nd] respondent has a case that the representations of the petitioner have been considered and rejected, I am satisfied that the said relief can be granted. For the above reasons while declining to quash Ext.P8, there shall be a direction to the 1[st] respondent to consider Exts.P6 and P7 representations submitted by the petitioner in accordance with law, as expeditiously as possible and at any rate within a period of two months of the date of receipt of a copy of 10 ## **W.P(c) No.10609 of 2012-A** this judgment, after affording an opportunity of being heard to the petitioner as well as the 3[rd] respondent also. It shall be open to the petitioner to produce any fresh material before the 1[st] respondent in support of his claim. ## _**(K.SURENDRA MOHAN, JUDGE)**_ rtr/