K.P. Karthikeyan v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC** ## **THURSDAY, THE 9TH DAY OF AUGUST 2012/18TH SRAVANA 1934** ## **WP(C).No. 17482 of 2011 (I)** **---------------------------** ## **PETITIONER :** **--------------------** **K.P.KARTHIKEYAN MANAGING DIRECTOR, HOTEL EAKACHAKRA RESIDENCY UDAYAMPEROOR PO, ERNAKULAM DISTRICT, PIN 682 307.** **BY ADVS.DR.K.P.SATHEESAN SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.MATHEW SUNNY SRI.ANOOP.V.NAIR** ## **RESPONDENT(S):** ## **--------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-1** ## **2. THE EXCISE COMMISSIONER** - **COMMISSIONERATE OF EXCISE,THIRUVANANTHAPURAM-33** **3. THE JOINT EXCISE COMMISSIONER CENTRAL ZONE, ERNAKULAM , KOCHI-18.** ## *** ADDL.R4 IMPLEADED** ***4. UDAYAMPEROOR OLD CHURCH (SUNNAHADOS CHURCH), UDAYAMPEROOR REPRESENTED BY ITS TRUSTEE, K.C.MATHEW** *** IS IMPLEADED AS ADDITIONAL 4TH RESPONDENT AS PER ORDER DATED 06.09.2011 IN IA.14676/2011.** **R1 TO R3 BY GOVT. PLEADER SMT. SEREENA GEORGE R4 BY ADVS. SRI.P.MARTIN JOSE** **SRI.P.PRIJITH SRI.ANEESH JAMES** **BY SRI.JAWAHAR JOSE, ADV. COMMISSIONER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...2/-** ## **WP(C).No. 17482 of 2011 (I)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** **EXT.P1 : COPY OF THE STAR CLASSIFICATION ORDER ISSUED TO THE PETITIONER'S HOTEL DATED 8-6-2010. EXT.P2 : COPY OF THE APPLICATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 20-10-2010. EXT.P3 : COPY OF THE ORDER NO. XC6-14572/11 DATED 27/6/2011 ISSUED BY THE 2ND RESPONDENT. EXT.P4 : COPY OF THE RELEVANT PAGES OF THE CODE OF CANNON LAW RELATING TO THE DEFINITION OF CHURCH. EXT.P5 : COPY OF THE RELEVANT PAGES OF THE POCKET CATHOLIC DICTIONARY EDITED BY JOHN A HARDON. EXT.P6 COPY OF THE ORDER OF THE HON'BLE SUPREME COURT DATED 7-9-2009 IN SPECIAL LEAVE TO APPEAL NO. 19796/2009. EXT.P7 COPY OF THE INVITATION LETTER IN RESPECT OF THE INAUGURATION OF THE HOTEL ON 14/9/2007. EXT.P8 COPY OF THE PHOTOGRAPH SHOWING THE LIGHTING OF THE LAMP BY THE PETITIONER'S MOTHER ON 14/9/2007. EXT.P8(a) COPY OF THE CONNECTED PHOTOGRAPHS OF INAUGURATION OF THE HOTEL ON 14/9/2007. EXT.P8(b) COPY OF THE CONNECTED PHOTOGRAPHS OF INAUGURATION OF THE HOTEL ON 14/9/2007. EXT.P9 COPY OF THE THANDAPER REGISTER OF MANAKUNNAM VILLAGE SHOWING THAT THE EXTENT OF 4 ARES 50 SQM. OF LAND WAS TRANSFERRED IN THE NAME OF THE KURISUPALLY ONLY ON 25/2/2009.** **(Contd...)** **WP(C).No. 17482 of 2011 (I)** **EXT.P10 COPY OF THE BASIC TAX REGISTER OF MANAKUNNAM VILLAGE. EXT.P11 COPY OF THE SKETCH IN RESPECT OF BLOCK NO. 19 FIELD SURVEY NO. 245. EXT.P12 COPY OF THE NOTICE ISSUED ON BEHALF OF THE KURISUPALLY SHOWING THAT THE INAUGURAL FUNCTION. EXT.P13 COPY OF THE RESURVEY SKETCH OF THE VILLAGE.** ## **RESPONDENT'S EXHIBITS : NIL** ## **ADVOCATE COMMISSIONER'S EXHIBITS :** **EXT-C1 : THE NOTICE OF INSPECTION DATED 16-8-2011. EXT-C2 THE NOTICE OF INSPECTION DATED 17-8-2011. EXT-C3 INVITATION LETTER FOR THE HOTELS INAUGURATION. EXT-C4 PHOTOGRAPH OF THE GRANITE ENGRAVE. EXT-C5 XEROX COPY OF THE BUILDING TAX REGISTER. EXT-C6 PHOTOGRAPHS OF THE CHURCH WITH FRONT ELEVATION. EXT-C7 PHOTOGRAPH OOF THE CHURCH WITH EASTERN SIDE ELEVATION. EXT-C8 XEROX COPY OF THE INFORMATION OBTAINED UNDER THE RIGHT TO INFORMATION ACT.** **(Contd...)** ## **WP(C).No. 17482 of 2011 (I)** |**EXT-C9**|**PHOTOGRAPH OF THE WORSHIP TIMINGS BOARD.**| |---|---| |**EXT-C10**|**PHOTOGRAPH OF THE BLESSED SACRAMENT AND CROSS.**| |**EXT-C11**|**PHOTOGRAPHS OF THE KURISHUPALLI'S INTERIOR.**| ||**//TRUE COPY//**| ||**P.S. TO JUDGE**| |**Mn**|| ## **ANTONY DOMINIC,J** ## **----------------------------------** ## **W.P.(C)No.17482 of 2011** ## **------------------------------------Dated this the 9[th ] day of August, 2012** ## **JUDGMENT** Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 to 3 and the learned senior counsel appearing for the additional 4[th] respondent. 2. Petitioner has filed this writ petition challenging Ext.P3 order passed by the 2[nd] respondent rejecting Ext.P2 application made by him for a licence in Form FL-3. 3. Facts of the case are that the petitioner is the Managing Partner of a firm which owns hotel Eakachakra Residency at Udayamperoor in Ernakulam District. Ext.P1 shows that the hotel has been classified as a three star hotel. By Ext.P2 dated 20/10/2010, petitioner made an application to the official respondents for a licence in form FL-3 under the Foreign Liquor Rules. That application was considered by the 2[nd] respondent and was rejected by Ext.P3 order dated 27/6/11. In Ext.P3, it is stated thus; **W.P.(C)No.17482 of 2011 2** _“It is reported that the hotel is situated in an objectionable site as per the distance rules and the nearest objectionable institution is the 'Thykkattu Kurushupally' owned by a Church, is situated within 90 metres from the hotel. It is also reported that Holy Mass is being conducted on all Saturdays and Sundays and daily prayer is being conducted between 2.30 PM to 5.30 PM and a minimum of 300 devotees are assembling there on each Holly mass. Further it is reported that the above Kurishupally is a part of Udayamperoor “Sunnahadoss Church'._ _Rule 13(3) of Foreign Liquor Rules stipulates that no FL-3 licence shall be issued to hotels which are located within 200 metres from an Educational institution, Temple, Church, Mosque or burial grounds. As per Rule 13(3) Note (1), Church means “a public place where prayer is offered by Christians”._ 4. Thereafter the Commissioner found that the hotel is situated at an objectionable site as per the distance rules and therefore the grant of FL-3 licence to the hotel was held to be against Rule 13(3) of the Foreign Liquor Rules. On that basis, the application was rejected. In this writ petition, petitioner challenges this order of the Commissioner. **W.P.(C)No.17482 of 2011 3** 5. The contention raised by the petitioner is that as found by the Commissioner himself, the structure in question is only a kurishupalli and not a church as defined in Note I to Rule 13(3). According to him, in respect of a chapal or a kurishupalli, the prescription of the prohibitted distance as contained in the Rule is inapplicable and in support thereof, counsel placed reliance on the Division Bench judgment of this Court in _**Abdul Hameed v. Asst. Excise Commissioner**_ (1992(1) KLT 774). To substantiate that it is only a kurishupalli, counsel also placed considerable reliance on the findings contained in the report submitted by the Advocate Commissioner appointed by this Court. 6. On behalf of the additional 4[th] respondent, the Udayamperoor Old Church (Sunahados church) represented by its Trustee, the contention of the petitioner that it is only a kurishupalli is disputed. According to them, the church has a history of more than 500 years and was reconstructed in 1903 and again in 1996 and 2010. They therefore contend that the **W.P.(C)No.17482 of 2011 4** hotel in question is situated within 90 metres from the church and therefore is situated within the prohibited distance as prescribed in Rule 13(3) of the Foreign Liquor Rules. 7. Learned senior counsel also relied on the judgment of this Court in _**Divakaran v. Commissioner of Excise**_ (2010 (1) KLT 19), where it was held that the prayer hall of the pentecostal church is also a church within the meaning of Note I to Rule 13(3) of the Foreign Liquor Rules. The learned Government Pleader appearing for respondents 1 to 3 also argued in support of Ext.P3 order. 8. Rule 13(3) of the Foreign Liquor Rules prescribes, the distance from institutions including Church. Note (1) to the Rule defines Church as a public place where prayer is offered by Christians. There is a proviso to this note, which says that any structure on the roadside, pavement or in a compound of a private building with or without deity shall not be considered as a Temple, Church or Mosque. Therefore, the distance Rule is applicable only if the structure in question is a **W.P.(C)No.17482 of 2011 5** Church as defined in the Rule. The applicability of the Rule in the context of a Chapel was considered by a Division Bench of this Court in the context of the Abkari Shops(Disposal in Auction) Rules, in the judgment in **Abdul Hameed v. Asst. Excise Commissioner (1992(1) KLT 774).** In that judgment, the Division Bench held thus: _“6. The next point relates to the distance from the’chapel’. We shall assume for the purpose of this argument that the ‘chapel’ is within 200 metres from the bar. The contention is that a’chapel’ is a church. The relevant rule which was relied upon by the appellant relates to the distance between the ‘church’ and the bar and the prohibited distance. The learned counsel for the appellant says that a chapel is also a church and in as much as the chapel in the instant case is within 200 metres from the bar, the prohibition is attracted._ _7. Under the Abkari Shops (Disposal in Auction) Rules (which rules are relied upon by the appellant), a ‘church’ is defined under R.2(ea). The definition says that a ‘church’ means “a_ **W.P.(C)No.17482 of 2011 6** _public place where prayer is offered by Christians provided that any structure on the road side, pavement or in a compound of a private building with or without diety shall not be considered as a church”. The learned counsel wanted to contend that a chapel will also come within the definition of ‘church’._ _8. In our view, there can be no dispute that a ‘chapel’ is a place where prayer is offered by the Christians. But that by itself is not sufficient to bring the place of worship within the definition of ‘church’ in the Rules inasmuch as the proviso excludes from the definition any structure on the road side, pavement or in a compound of a private building with or without deity. In the present case before us it is not in dispute that the ‘chapel’ is just by the side of the road which is a very small structure. During the course of arguments it was almost accepted that people who go by the side of the road stop there for a little while, pray and then move on. It is not as if there is sufficient space in a ’chapel’ for the people to go inside and worship as in a church. In Concise Oxford Dictionary a ‘church’ is described as a building for public Christian worship,_ **W.P.(C)No.17482 of 2011 7** _especially according to established religion of country. A ‘chapel’ on the other hand is described as a place of Christian worship other than parish church or cathedral._ _9. In the common parlance a ‘chapel’ is not equated with the ‘church’. The legislative policy appears to be to prohibit the distance of a bar or a shop from a ‘church’ in the stricter sense. The prohibition is not to be attracted in a case where there are small structures on the road side, pavement or in a compound of a private building with or without deity. Such small structures are not to be equated with a ‘church’. On a consideration of the meaning of the above words in the common parlance, we are of the view that the ‘chapel’, though it is a place of worship is not equated with a ‘church’ in R.2(ea) of the Abkari Shops (Disposal in Auction) Rules.”_ 9. A reading of this judgment shows that according to the Division Bench, although a chapel is also a place of worship but that by itself is not sufficient to bring, such a place of worship within the definition of Church in the Rules. A reading **W.P.(C)No.17482 of 2011 8** of the impugned order shows that the respondents have proceeded on the basis that the institution in question is Thykkattamma Kurishupalli. If it is only a Kurishupalli or a Chapel, the principles laid down by the Division Bench in the aforesaid judgment, will apply and if so, the conclusions in Ext.P3 may not be sustainable. 10. However, argument raised by the additional respondent is that the institution in question is a full pledged church and not a Kurishupalli or a Chapel. Various materials have been relied on to substantiate this contention. It is stated that 'Holy Mass' is performed every Saturday and Sunday in addition to Gospel preaching and Faith healing on every 2[nd] Saturday followed by Holy Mass and Novena. It is also stated that there is Adoration of the Blessed Sacrament and Blessed Cross on everyday between 2.30 pm and 5.30 pm. Photographs of the church have been produced and reference is also made to the history of the Church, It is on this basis that the learned Senior Counsel for the party respondents **W.P.(C)No.17482 of 2011 9** contended that this is a Church and not a Kurishupalli. 11. As already noticed by me, the basis on which the Commissioner has proceeded is that it is a Kurishupalli. Even according to the additional 4[th] respondent, this is not merely a Kurishupalli but a Church. Therefore, even according to the fourth respondent, the premise on which the claim of the petitioner was considered is not fully correct. In such a case, what is required is that an enquiry should be conducted to ascertain whether the institution in question qualifies to be a church as defined in note 1 to Rule 13(3) of the Foreign Liquor Rules. Such an enquiry shall be conducted by the Excise Commissioner, if necessary, after a personal verification and at any rate, with notice to the petitioner and the additional fourth respondent and also referring to the commission report and other material in this case and adverting to the principles laid down by this Court in the judgment in **Abdul Hameed v. Asst. Excise Commissioner (1992(1) KLT 774)** and **Divakaran v. Commissioner of Excise (2010(1) KLT 19).** **W.P.(C)No.17482 of 2011 10** 11. In order to reconsider the matter as above, I set aside Ext.P3 order passed by the Commissioner. The enquiry as above, shall be conducted as expeditiously as possible and orders shall be passed at any rate, within eight weeks of receipt of a copy of this judgment. Writ Petition is disposed of as above. ## **ANTONY DOMINIC, JUDGE** ln