Indian Medical Association, Cochin Branch and Dr. N. Dinesh v. State of Kerala, Excision Commissioner and Kerala Bar Hotel Association

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **THURSDAY, THE 19TH DAY OF JUNE 2014/29TH JYAISHTA, 1936** ## **WP(C).No. 23235 of 2013 (S)** **----------------------------** ## **PETITIONERS:** **---------------------** ## **1. INDIAN MEDICAL ASSOCIATION, COCHIN BRANCH,** - **REPRESENTED BY ITS SECRETARY DR.JUNAID RAHMAN. M.I., IMA HOUSE, BEHIND JAWAHARLAL NEHRU INTERNATIONAL STADIUM, PALARIVATTOM P.O., COCHIN - 682 025.** ## **2. DR.N. DINESH,** **(PROFESSOR, DEPARTMENT OF PSYCHIATRY, AMRITA INSTITUTE OF MEDICAL SCIENCES, KOCHI), ILLIKATTU HOUSE, PUTHUPALLIPURAM, EDAPALLY, COCHIN - 682 024.** **BY ADVS.SRI.JACOB P.ALEX, SRI.THOMAS J.ANAKKALLUNKAL, SRI.JOSEPH P.ALEX.** **RESPONDENTS:** **------------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, NANDAVANAM, THIRUVANANTHAPURAM - 695 001.** ## **3. KERALA BAR HOTEL ASSOCIATION,** - **REPRESENTED BY ITS GENERAL SECRETARY, 35/1697, SOUTH JANATHA ROAD, PALARIVATTOM, ERNAKULAM, KERALA - 682 025.** **R1 & R2 BY SPL. GOVT. PLEADER MR.SUJITH MATHEW JOSE.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** ## **WP(C).No. 23235 of 2013 (S)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXHIBIT P1. TRUE COPY OF THE RELEVANT PAGES OF THE GLOBAL STATUS REPORT ON ALCOHOL AND HEALTH (2011) PREPARED BY THE WORLD HEALTH ORGANIZATION.** - **EXHIBIT P2. TRUE COPY OF THE 'GLOBAL STRATEGY ON THE HARMFUL USE OF ALCOHOL' OF WORLD HEALTH ORGANISATION.** - **EXHIBIT P3. TRUE COPY OF THE REPRESENTATION DATED 19.08.2013 SUBMITTED BY THE 1ST PETITIONER.** ## **RESPONDENT'S EXHIBITS:-** **EXT.R1A COPY OF THE FL4- A LICENCE ISSUED TO THE PETITIONER'S ASSOCIATION.** **EXT.R1B COPY OF THE APPLICATION SUBMITTED TO THE EXCISE COMMISSIONER BY VARIOUS ORGANISATION OF DOCTORS.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** **rs.** ## **Manjula Chellur, C.J. & P.R. Ramachandra Menon, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 23235 OF 2013 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19[th] day of June, 2014 ## **JUDGMENT** ## **Manjula Chellur, C.J.** Petitioners have approached this Court as a public interest litigant to redress the problems faced, especially by the stakeholders pertaining to health establishments like Doctors, Hospitals, Staff, patients etc., due to unrestricted entry of persons under the influence of alcohol in hospital premises. While indicating the instances which are of violent in nature, petitioners have also pointed out the root cause for the problem i.e., easy availability of liquor within near vicinity of the hospital and due to unrestricted entry of persons under the influence of alcohol in hospital premises, problems are faced by the stakeholders. 2. According to them, in State of Kerala there are 708 Bar Hotels and 384 state-owned retail outlets. Many of them are situated within close proximity of hospitals across the State and in the absence of any rule prohibiting establishment or functioning of liquor shops within a particular distance from hospitals on similar WP(C) No. 23235 of 2013 -:2:- lines with educational institutions and religious places, problems faced by general public will not come to an end. While contending that the right to life guaranteed under Article 21 of the Constitution of India includes medical treatment and better health conditions, they have referred to various decisions on the issue and so far as right to carry on trade or business in potable liquor, they have also referred to the judgment in **Khoday Distilleries Ltd. v. State of Karnataka** [(1995) 1 SCC 574]. 3. Then coming to the issue in question, they have pointed out that though Kerala is a State having highest literacy rate, so far as consumption of alcohol, as it being the higher consuming State, there has to be proper restrictions, within which distance from hospital, vending of liquor can be allowed. Petitioners refer to Global Status report on alcohol and health prepared by World Health Organization (WHO) wherein the comprehensive perspective on the global, regional and country consumption of alcohol indicating patterns of drinking, health consequences and policy responses in its member States are indicated. According to the said report, the harmful use of alcohol is the world's third WP(C) No. 23235 of 2013 -:3:- largest risk factor for disease and disability, especially in middle income countries, it is the greatest risk. As per the report, the reported deaths worldwide are attributable to alcohol consumption, which is higher than the number of deaths caused by HIV/AIDS, violence or tuberculosis. They refer to principles laid down in the said report of WHO at Ext.P1 and also copy of 'Global Strategy on the harmful use of alcohol' produced as Ext.P2. 4. At paragraph 15 of the writ petition, Rules relating to establishment of liquor shops/Bar Hotels in other neighbouring and Northern States of the country are enumerated which includes, Uttar Pradesh, Karnataka, Andra Pradesh, Rajasthan, West Bengal and Sikkim. The rules under respective State Excise Rules provide some restriction on the distance within which shops/Bar Hotels could be established. With reference to hospital and other institutions, apparently there is no reference to proximity between hospital and establishment of Bar Hotels/liquor shops, so far as State of Kerala Excise Rules are concerned. Therefore, according to petitioners, there has to be WP(C) No. 23235 of 2013 -:4:- such a distance so far as hospitals are concerned, as establishment of Bar Hotels or Liquor Shops within the close proximity of hospital would lead to several problems which would aggravate problems already faced by patients in the hospitals. 5. So far as addiction to alcohol, paragraph 12 of the Writ Petition enumerates various problems faced by society. With these averments petitioners sought for following reliefs: “i. Declare that the sale of liquor within 200 meters to hospitals in the State of Kerala is violative of Article 21 of the Constitution of India; ii. Issue a writ in the nature of mandamus or any other writ, order or direction commanding respondents 1 & 2 not to issue licenses or renew the licenses to Foreign Liquor Outlets (FL1) and bar hotels/Restaurants (FL3) within a distance of 200 meters and that of toddy shops within a distance of 400 meters from hospitals in the State of Kerala; iii. Issue a direction banning liquor consumption and entry of persons under the influence of alcohol in hospitals within the State of Kerala. iv. Issue such other relief as this Hon'ble Court deems fit in the facts and circumstances of the case.” 6. In response to this writ petition, a detailed counter affidavit is filed by Deputy Secretary (Taxes Department). WP(C) No. 23235 of 2013 -:5:- Denying the concern of petitioners, as grave, respondent State has pointed out that various organizations of Doctors who are members of petitioners' association are applying for permission to serve liquor to its members in connection with various conferences organized by them, therefore they contend that petitioners have no _locus standi_ to file Public Interest Litigation of this nature. According to respondents, irrespective of distance factor, problems faced by hospitals and its staff due to alcohol cannot be put an end to, as people can drink from long distance and come to the hospital as well. This has to be controlled by hospital authorities. He also refers to Apex Court judgment regarding fundamental right to carry on trade or business in potable liquor. It is also pointed out that if Government is allowing trade in liquor in the State, the citizen shall not be discriminated. However, at paragraph 9 they contend that the law relating to liquor being a state subject, State has freedom to formulate its own policy regarding liquor. According to them, none of the grounds raised are tenable. Several rules in Abkari Act prevent consumption of liquor in public places which includes hospital also. WP(C) No. 23235 of 2013 -:6:- 7. Section 15(c) of the Act points out prohibiting consumption of liquor in public places. So far as entry of persons to hospital under influence of alcohol, rules have to be framed and this is a matter of policy decision to include or not the hospitals in the category of places of worship, educational institutions, burial grounds, SC/ST colony etc. They have also placed on record Ext.R1(a) in order to indicate that licence was given to one Dr.Sachidananda Kamath, member of 1[st] petitioner association. They also produced copies of some of the applications submitted by various organizations of doctors to contend that licences were given to certain members of the petitioners' association. According to them, if people under the influence of alcohol are creating problem in hospitals, a proper measure has to be taken to put an end to such menace and establishment of a liquor shop beyond 200 meters will not have any impact on such persons. They have also brought on record that if State is allowing the trade in liquor in the State, as indicated by Apex Court, there cannot be discrimination so far as the citizen is concerned and hence total prohibition of liquor WP(C) No. 23235 of 2013 -:7:- cannot be implemented as part of their policy decision. So far as their policy is concerned, paragraph 6 they have enumerated in detail what is the progressive policy decision taken by them which reads as under: “It is submitted that the Government is taking several loudable steps to make aware about the menace of liquor consumption and several progressive policy decision have been taken to control this menace. As a policy decision, in order to reduce liquor consumption, Government introduced a provision in the distance rule regarding bar to bar distance for granting fresh FL3 licenses. A minimum of 3 kilometer distance is necessary in Panchayat area and one kilometer in Municipality/Corporation areas. Government declared Good Friday as a dry day over and above the other days already declared as dry day. In order to reduce liquor consumption in the youth, Government enhanced the age limit from 18 to 21 for consuming or trading liquor. Government reduced the working hours of the bar hotels and limited it as 8.00 am to 11.00 pm. As a part of tourism promotion, Government is granting FL3 licenses to hotels having at least 4 Star and above classification. Meantime, Government appointed a One Man Commission to recommend comprehensive changes in the prevailing Abkari Policy. Government have also taken a conscious policy decision not to grant any more FL3 license till such WP(C) No. 23235 of 2013 -:8:- time a report is placed by the Commission. For implementing the above decision, the Government amended Foreign Liquor Rules accordingly. Government is taking every possible steps to reduce the consumption of liquor.” 8. During the course of argument learned counsel for petitioners pointed out two decisions; **State of Uttar Pradesh and others v. Manoj Kumar Dwivedi and others** [(2008) 4 SCC 111] and also **Pijush Kanti Das v. State of W.B.** [2003 (1) CHN 111] on the file of High Court of Calcutta. Paragraphs 10 and 11 of (2008) 4 SCC 111 are relevant which read as under: “10. Be that as it may, it appears that proper care was not taken while opening shops in the close proximity of a place of public resort, school, hospital, place of worship or factory, or to the entrance to a bazar or a residential colony and that is how sub-rule (4) of Rule 5 came up for interpretation before the High Court. The High Court has after taking into consideration the overall view of the matter opined that 100 meters or 300 ft. (approx.) would be a just measure where the shop should not be opened in the close proximity of a place of public resort, school, hospital, place of worship or factory, or to the entrance to a bazar or a residential colony. WP(C) No. 23235 of 2013 ## -:9:- 11. We fully agree with the view taken by the High Court and we are also of the view that 100 meters or 300 ft. (approx.) should be the right criteria where the Excise Commissioner shall not give any licence to a shop under the Excise Act. We hope and trust that the Excise Commissioner of the State shall take into consideration sub-rule (4) of Rule 5 of the U.P. Excise Rules and see that no shops or sub-shops are opened within radius of 100 meters or 300 ft. (approx.) of a place of public resort, school, hospital, place of worship or factory, or to the entrance to a bazar or a residential colony. The interpretation of the word "close proximity" was vague therefore it was misused by the authorities. But, now the matter has been placed beyond any vagueness. Therefore, with the interpretation of the expression "close proximity" by the High Court, the matter has been put in the right perspective and the doubt has been cleared. Therefore, taking into consideration all the facts and circumstances of the case, we affirm the view taken by the High Court insofar as fixing the distance of 100 meters or 300ft. (approx.) from a place of public resort, school, hospital, place of worship or factory, or to the entrance to a bazar or a residential colony where no shop or sub-shop shall be opened under the U. P. Excise Act and Rules framed thereunder.” 9. On going through the above pleadings and arguments we also take into consideration the fact that One Man Commission (Justice M.Ramachandran) was appointed by State WP(C) No. 23235 of 2013 -:10:- Government to enquire into the entire issue to evolve a fair policy so far as liquor business is concerned. It was open to every citizen of this State including the petitioners' association to represent before said Commission pointing out their concern over the matter. Several representations were received by Commission and hearing was also granted before submitting its report to the Government. After holding a detailed enquiry, by travelling all over the country, i.e. through State of Kerala and also different States, Commission has submitted its report which is also pending before Government so that they can evolve a fair policy in the matter. We fail to understand why petitioners' association did not choose to appear before said Commission. If they had appeared, we do not understand what was the necessity to file this Public Interest Litigation. 10. Even otherwise, we cannot brush-aside the concern of petitioners as irrelevant or ignorable. State also has to take into consideration the health problems of its subjects. Whether petitioners or other members have taken licence to vend liquor, may not come in the way of considering the concern raised by WP(C) No. 23235 of 2013 -:11:- them. The fact remains, while evolving fair policy especially when other neighbouring states and northern states in the country have such policy keeping in mind the proximity of liquor shops/Bar Hotels and hospitals, no harm would be caused if such consideration is made by our policy makers. Whether a person enters hospital premises under the influence of alcohol and creates problem or not, we are not concerned with that aspect of the matter. One has to keep in mind like religious places, educational institutions, hospitals and also other important institutions where health of the subjects of the State is being taken care of. Even if prohibition is made to consume alcohol in public places including hospital, the complaint is not that, patients are consuming liquor in public places. The petitioners have pointed out the problems faced by stakeholders of a health organization especially in the Government Hospital having regard to the close proximity of liquor vending shops. 11. While evolving fair policy by State, it is their duty to see that the concern expressed by persons from different walks of life has to be taken into consideration. When One Man WP(C) No. 23235 of 2013 **==> picture [30 x 10] intentionally omitted <==** Commission has made such an exercise to assist the State policy makers to evolve a proper and fair policy on the controversial issue before us, it is just and proper for the State to consider the representation made by petitioners, which is at Ext.P3, while deciding the issue. With the above observations and directions, the Writ Petition is disposed of. **Manjula Chellur, Chief Justice.** **P.R. Ramachandra Menon, Judge.** ttb/23/06