Hotel Madathil Regency, Kottiyam, Kollam District v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 3RD DAY OF NOVEMBER 2017/12TH KARTHIKA, 1939** ## **WP(C).No. 31676 of 2017 (H)** **----------------------------** **PETITIONER : ---------------------** **HOTEL MADATHIL REGENCY, KOTTIYAM, KOLLAM DISTRICT, REPRESENTED BY ITS MANAGING PARTNER, MRS.JAYASREE REGHU, AGED 53 YEARS, W/O.REGHU.** **BY SRI.C.C.THOMAS,SENIOR ADVOCATE 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-695 033.** **3. THE DEPUTY COMMISSIONER OF EXCISE, KOLLAM-691 001.** ## **R1 TO R3 BY STATE ATTORNEY SRI.K.V.SOHAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30-10-2017, ALONG WITH WPC.NO. 31689/2017 AND CONNECTED CASES, THE COURT ON 03-11-2017 DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 31676 of 2017 (H)** ## **----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -------------------------------------** - **EXHIBIT P1 PHOTOCOPY OF THE FL-11 LICENSE NO.KLM-11 ISSUED BY THE 3RD RESPONDENT DATED 25-9-2013.** - **EXHIBIT P2 PHOTOCOPY OF THE FL-11 LICENSE RENEWAL CERTIFICATE DATED 31-3-2017 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P3 PHOTOCOPY OF THE ORDER DATED 11-7-2017 IN SLP(C) NO.10243/2017 PASSED BY THE HON'BLE SUPREME COURT.** - **EXHIBIT P4 PHOTOCOPY OF THE LETTER DATED 25-8-2017 SENT BY THE CHIEF SECRETARY TO THE EXCISE COMMISSIONER.** - **EXHIBIT P5 PHOTOCOPY OF THE LETTER DATED 25-8-2017 SENT BY THE 2ND RESPONDENT TO ALL ZONAL JOINT COMMISSIONER OF EXCISE/DEPUTY COMMISSIONER OF EXCISE.** - **EXHIBIT P6 PHOTOCOPY OF THE APPLICATION DATED 14-9-2017 SENT TO THE RESPONDENTS.** - **EXHIBIT P7 PHOTOCOPY OF THE ORDER DATED 24-8-2017 ISSUED BY THE EXCISE COMMISSIONER, KARNATAKA.** - **EXHIBIT P7(A) ENGLISH TRANSLATION OF EXT.P7.** ## **EXHIBIT P8 PHOTOCOPY OF THE NEWS ITEM PUBLISHED IN THE TIME OF INDIA.** **RESPONDENT(S)' EXHIBITS:** **NIL** **-----------------------------------------** **/TRUE COPY/** **P.S.TO JUDGE** **sts** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) Nos.31676, 31689, 31701, 31783, 31801, 34638, 34697, 34730, & 34733 of 2017 ----------------------------------------------Dated this the 3[rd] day of November, 2017** ## **JUDGMENT** The above captioned writ petitions are filed by the petitioners who were FL-11 licensees under the Foreign Liquor Rules, 1953, however, the licences in favour of the petitioners as per Ext.P2 and online applications with fees etc. etc. were not renewed from 01.04.2017, alleging that the Hotels are located within 500 metres from various national/state Highways, in accordance with the stipulations contained in the judgment rendered by the apex court in _**'State of Tamil Nadu and Others v. K. Balu and Another'**_ [2017 (1) KHC 26 (SC)]. According to the petitioners, in view of the clarification of the apex court as per Ext.P3 order dated 11.07.2017, petitioners are entitled to get renewal of the licences. It is submitted, in view of the clarification made by the apex court, even though Ext.P6 representation were submitted in all the writ petitions before the respective respondents, no action was initiated to consider the same in terms of Ext.P3 clarificatory order made **W.P.(C) No.31676/17 & con. cases** 2 by the apex court. It is also contended by the petitioners that, evident from Ext.P7 dated 24.08.2017, the Government of Karnataka has excluded the Municipal areas by issuing appropriate notifications. According to learned Senior Counsel, 'municipal areas' denoted in the clarificatory order will take in the Panchayats having the nature and characteristics of municipal areas, especially the ones having high tourist potential. Therefore, according to the petitioners, petitioners are entitled to get benefit of Ext.P3 clarificatory order passed by the apex court. 2. I have heard Sri. C.C. Thomas, learned Senior Counsel for the petitioners, and Sri. K.V. Sohan, learned State Attorney, appearing for the respondents. Perused the documents on record and the pleadings put forth by the petitioners. 3. The sole question to be considered is, in the light of Ext.P3 clarificatory order passed by the apex court, whether the petitioners are entitled to secure licences in accordance with the provisions of the Foreign Liquor Rules, 1953, as amended periodically. Before considering the issue, the directives issued by the apex court in its judgment dated **W.P.(C) No.31676/17 & con. cases** 3 ## 15.12.2016 in ' _**K.Balu**_ ' ( _supra_ ) are relevant to be noted: _“(i) All states and Union Territories shall forthwith cease and desist from granting licences for the sale of liquor along national and state highways;_ _(ii) The prohibition contained in (i) above shall extendto and include stretches of such highways which fall within the limits of a municipal corporation, city, town or local authority;_ _(iii) The existing licences which have already been renewed prior to the date of this order shall continue until the term of the licence expires but no later than 1 April, 2017;_ _(iv) All signages and advertisements of the availability of liquor shall be prohibited and existing ones removed forthwith both on national and state highways;_ _(v) No shop for the sale of liquor shall be (i) visible from a national or state highway; (ii) directly accessible from a national or state highway and (iii) situated within a distance of 500 metres of the outer edge of the national or state highway or of a service lane along the highway._ _(vi) All States and Union Territories are mandated to strictly enforce the above directions. The Chief Secretaries and Directors General of Police shall within one month chalk out a plan for enforcement in consultation with the state revenue and home departments. Responsibility shall be assigned inter alia to District Collectors and Superintendents of Police and other competent authorities. Compliance shall be strictly monitored by calling for fortnightly reports on action taken._ _(vii) These directions issue under Article 142 of the Constitution.”_ 4. Direction No.(ii) quoted above is relevant, which deals with the prohibition contained in direction No.(i) above, **W.P.(C) No.31676/17 & con. cases** 4 which extend to and includes stretches of such highways, which fall within the limits of a municipal corporation, city, town or local authority. However, the thrust of the contention advanced by learned Senior Counsel for the petitioners is in accordance with paragraph 7 of Ext.P3 clarificatory order passed by the apex court, which read thus: _“7. The purpose of the directions contained in the order dated 15 December 2016 is to deal with the sale of liquor along and in proximity of highways properly understood, which provide connectivity between cities, towns and villages. The order does not prohibit licensed establishments within municipal areas. This clarification shall govern other municipal areas as well. We have considered it appropriate to issue this clarification to set at rest any ambiguity and to obviate repeated recourse to IAs, before the Court.”_ 5. The prime contention advanced by learned Senior Counsel is that, the highways passing through the Panchayat area also is entitled to get the benefit of the relaxation made in respect of the establishments functioning within the municipal areas, however, in my considered opinion, so far as the first sentence of paragraph 7 of the clarificatory order is concerned, it is only a nutshell of the directions contained in the judgment, in respect of proximity of highways. However, in the second sentence of paragraph 7, it is clearly stated by the apex court that the order does not prohibit licenced establishments within **W.P.(C) No.31676/17 & con. cases** 5 the municipal areas. According to learned Senior Counsel, by stating “municipal areas” in paragraph 7, the apex court meant the same to include areas which are having the nature and characteristics of municipalities irrespective of the area of any Municipality. Therefore, according to the learned Senior Counsel, petitioners are conducting Hotels even though in Panchayats, they are situated in well-developed areas, also with high tourist potential, and therefore, they come within the stipulations clarified by the apex court in its order dated 11.07.2017. 6. Learned State Attorney has invited my attention to Article 243P of the Constitution of India, which define Municipalities, and as per clause (d) 'Municipal area' means the territorial area of a Municipality as is notified by the Governor. Article 243Q deals with constitution of Municipalities, and clause (b) therein, states that there shall be constituted in every State, a Municipal Council for a smaller urban area. Moreover, 'Panchayat' is defined in clause (f) of Article 243P to mean, a Panchayat constituted under Article 243B. Article 243 (d) defines 'Panchayat' to mean an institution (by whatever name called) of self-government constituted under Article **W.P.(C) No.31676/17 & con. cases** 6 243B, for the rural areas. Clause (e) therein defines 'Panchayat area' to mean territorial area of a Panchayat. Therefore, it is contended that the contention advanced by the petitioners that the Municipal areas mentioned by the apex court in paragraph 7 of the clarificatory order will not take in, the Panchayats. It is an admitted fact, the writ petitioner hotels are situated within 500 metres of the respective national/state highways. 7. Having evaluated the respective submissions made across the Bar, I am of the considered opinion that the rigor contained under direction No.(ii) of the judgment of the apex court in _**'K. Balu'**_ ( _supra_ ) is not watered down as per paragraph 7 of Ext.P3 clarificatory order dated 11.07.2017, except the municipal areas. That apart, the “Panchayat and Panchayat area” is a class apart from “Municipality and Municipal areas”, and have clear and distinct areas of operation, and therefore, unless and until a clarification is made in that regard in the judgment in _**'K. Balu'**_ , the contentions raised so, cannot be sustained under law. In that view of the matter, the reliefs sought for, seeking direction to the respondents to renew the licences cannot be sustained **W.P.(C) No.31676/17 & con. cases** 7 under law, especially due to the fact that, there is no dispute with respect to the location of the petitioner hotels within the distance rule stipulated by the apex court in _**'K. Balu'**_ ( _supra_ ). Resultantly, writ petitions fail, accordingly, they are dismissed. Sd/- **SHAJI P. CHALY JUDGE** St/31.10.2017