Mohammed P.K. v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **THURSDAY, THE 05TH DAY OF MARCH 2020 / 15TH PHALGUNA, 1941** ## **WP(C).No.2479 OF 2020(H)** ## **PETITIONER/S:** **MOHAMMED P.K. AGED 51 YEARS S/O.PARIKUTY, KALAVARA HOUSE, MALPETTA POST AND VILLAGE, VYTHIRI TALUK, WAYANAD SITRICT.** **BY ADVS. SRI.N.RAGHURAJ SHRI.ARJUN GOPAL P.** ## **RESPONDENT/S:** - **1 THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT, DEPARTMENT OF TAXES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001** - **2 THE COMMISSIONER OF EXCISE EXCISE COMMISSIONERATE, NANDAVANAM, THIRUVANANTHAPRUAM-695003** - **3 THE DEPUTY COMMISSIONER OF EXCISE, O/O.THE DEPUTY COMMISSIONER OF EXCISE, WAYANAD-673001** - **4 HOTEL INDRIYA WANANAD NEAR NEW BUS TERMINAL, MAIN ROAD, KALPETTA, WAYANAD KERALA-673121, REPRESENTED BY ITS MANAGING PARTNER, MR.KURIAKOSE** - **5 ADDL.R5-JIBI ABRAHAM AGED 45 YEARS S/O. ABRAHAM (LATE), ELAYADATHU HOUSE, THIRUVANIYOOR P.O., ERNAKULAM-682 308 - IS IMPLEADED AS ADDL.R5 AS PER ORDER DATED 18.02.2020 IN IA 2/2020 R4 BY ADV. SRI.ALEX.M.SCARIA R5 BY ADV. SARITHA THOMAS R5 BY ADV. SRI.GEORGE POONTHOTTAM (SR.) SRI. K. P HARISH; SRGP SRI. EMMANUEL STEPHENSON; ADVOVATE COMMISSIONER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.2479 OF 2020** **2** ## JUDGMENT The petitioner is stated to be a member and office bearer of the Committee of 'Masjid Mubarak', a prominent Mosque situated in Kalpetta Town near the new bus stand. It is his case in the writ petition that there is a Madrasa attached to the mosque, where religious education is imparted to more than 100 children belonging to the Muslim community. Apparently, there is a pathway between two tile-roofed buildings, which originally belonged to one 'Soofi Haji' who had permitted the public to use the said pathway, running through his property, to access the Mosque and Madrasa. It is stated that thereafter, the property changed ownership and is now under the ownership of one Mr.Virendra Kumar ,who closed the access to the pathway by putting up gates/slabs in front of the pathway, so as to prevent the public from accessing the Mosque and Madrasa. It is the case of the petitioner that if the said pathway is reckoned for the purposes of computing the prohibited distance under Rule 13(3) of the Foreign Liquor Rules, 1953, then the hotel run by the 4[th] respondent has to be seen as ineligible for obtaining an FL-3 licence, since the distance between the gate of the hotel and the pathway aforementioned is less than 40mtrs. The prayer in the writ petition is for a direction to the 2[nd] respondent to consider the representation preferred by the petitioner and not grant any FL-3 licence to the 4[th] respondent, in as much as issuing a license would amount to breaching the provisions of Rule 13(3) of the Foreign liquor Rules, 1953. **WP(C).No.2479 OF 2020** **3** 2.When the matter came up for admission before this Court on 29.1.2020, taking note of the averments in the writ petition as also the submission made on behalf of the writ petitioner, this Court granted an interim direction to the 1[st] and 2[nd] respondents not to grant the FL-3 licence to the 4[th] respondent, pending disposal of the writ petition. The said interim order continues to be in force even today. 3.A counter affidavit has since been filed by the 4[th] respondent wherein, materials, including photographs, have been produced to suggest that the pathway that the petitioner alleges to be in existence, is not actually a pathway that is generally used by the public and that, at any rate, the said pathway had been closed in view of its non user by the public over a period of time. It is in particular pointed out that the calculation of the prohibited distance, in terms of Foreign Liquor Rules, has to be between the gate of the 4[th] respondent Hotel, and the existing gate leading to the Mosque and Madrasa, and when the distance is so reckoned, it can be seen that the distance between the two gates is 103mtrs, which is well beyond the prohibited distance of 50mtrs. The counter affidavit of the 4[th] respondent also raises an issue with regard to the locus standi of the petitioner to maintain the writ petition in as much as, it is their stand that the petitioner has not been authorized by the Mosque to file the writ petition and that he is in fact an active real estate broker of the locality who has preferred the writ petition with ulterior motives. 4.Through a reply affidavit filed by the petitioner, the averments in the **WP(C).No.2479 OF 2020** **4** counter affidavit have been refuted and it is maintained that the pathway described in the writ petition does in fact exist as one that is generally used by the public. 5.When the matter came up for hearing on the last occasion, this Court, taking note of the factual dispute raised with regard to the existence of the pathway, deemed it appropriate to appoint an Advocate Commissioner to visit the locality and submit a report before this Court as regards the existence or otherwise of the disputed pathway. Through a report filed before this Court by the Advocate Commissioner, it is pointed out that the alleged disputed pathway is non-existent as of now, and the presence of cement tiling under the soil and shrubs in Mr. Virendra Kumar’s property and other evidence pointed out by the petitioner would indicate that such a pathway could have existed in the past through the private property of Mr. Virendra Kumar. In the opinion of the Advocate Commissioner, it is unlikely that the pathway was used by general public to access the Mosque and Madrasa. As regards the distance between the gate of the Hotel and gate of Mosque which is generally used by the public, it is the finding of the Advocate Commissioner that the said distance is 102mtrs. 6.The petitioner has filed an objection to the report of the Advocate Commissioner, pointing out certain defects in the said report, particularly, with regard to the finding of the Advocate Commissioner as regards the walls/gates put up in the property through which the alleged pathway runs. It is the case of the petitioner that these structures where put up recently and **WP(C).No.2479 OF 2020** **5** with a view to defeating the claims of the petitioner regarding the existence of the pathway through the property in question. 7.I have heard Sri. N Raghuraj, the learned counsel appearing for the petitioner, the learned Government Pleader appearing on behalf of the official respondents of the State and the learned Senior Counsel Sri. George Poonthottam on behalf of respondents 4 and 5. 8.On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I find from a perusal of Rule 13(3) of the Foreign Liquor Rules 1953, that in connection with the grant of FL-3 licences, there is a restriction provided under the statute with regard to the distance to be maintained between Hotels having Four star, Five star, Five star deluxe and Heritage classification and Educational institutions, Temples, Churches, Mosques, Burial grounds,Scheduled Caste/Scheduled Tribe colonies. The Hotels aforementioned are to maintain a minimum distance of 50mtrs from any of the educational institutions, temples etc; mentioned in the provision. Note (2) to the said provision clarifies that while calculating the distance of 50mtrs, the basis has to be the shortest pathway/lane/street/road; generally used by the public and the measurement has to be done from gate to gate. The question that arises in the instant case is whether the 4[th] and 5[th] respondent have breached the distance requirement while applying for the FL-3 licence for their Hotel. It is not in dispute that if the measurement is to be reckoned from the disputed pathway, then the distance criteria would be breached. If on the other hand, the measurement is to be made from the ## **WP(C).No.2479 OF 2020** **6** existing gate of the Mosque and Madrasa, then the distance requirement would not be breached. This Court must therefore look into the issue as to whether the disputed pathway can be seen as one that is generally used by the public for, only in that event can the distance to the said pathway, from the gate of the hotel, be seen as breaching the provisions of the Foreign Liquor Rules. In this connection, I must note the decision of a Division Bench of this Court in 1993 KHC 133; Ravindran v. George which interprets the term “generally used by the public” as referring to a general use by the public as of right and not a use by implied permission. On the facts of the instant case, it is evident that the disputed pathway is one that runs through the private property of Mr. Virendra Kumar, and that the permissive use of the pathway, to members of the public, was by the erstwhile owner of the property, Soofi Haji. In my view, even assuming that there was a permissive use granted to public by Soofi Haji, and the said permissive use could be relied upon by the public for claiming a similar right through the property now owned by Mr. Virendra Kumar, the said pathway cannot be seen as one that is contemplated for reckoning the prohibited distance to be maintained by the 4[th] and 5[th] respondents, in the context of the Foreign Liquor Rules. The decision of the Division Bench referred above clearly states that the phrase 'generally used by the public' must refer to 'use by the public as of right' and not a permissive use at the instance of the land owner. 9.The learned counsel for the petitioner would next rely on a recent judgment dated 14.2.2020 of a single Judge of this Court in W.P(C).25901 of 2018 where, in the context of legality of establishing Toddy shops in **WP(C).No.2479 OF 2020** **7** residential areas, it was found that Toddy Shops could not be located in residential areas, by infringing the right of privacy of the individual to have respect for his private and family life, his home and his correspondence as referred in Article 8 of European Convention on Human Rights. In the said case, the learned judge applied the test of threshold severity, as adopted by the European Convention on Human Rights, and found that the establishment of toddy shops in a residential area breached the said test and, consequently, the right of the individual to live with dignity in the residential building. The reliance by learned counsel for the petitioner on the said decision, is for the purpose of contending that, notwithstanding the distance rule prescribed in the Foreign Liquor Rules, the petitioner has a fundamental right to insist on the 4[th] and 5[th] respondents not conducting a Bar hotel in the vicinity of the Mosque/Madrasa. I am afraid, I cannot accept the said contention of the petitioner for, to do so, would amount to ignoring the important aspect that the privacy right of an individual is not absolute and must, in the absence of any patent infringement of it, co-exist with rights that have been granted to others in Society. At any rate, in the instant case, there is no material produced that would suggest that the conduct of the Bar hotel in any way interferes with the privacy rights of the Mosque/Madrasa or the believers/ students who frequent the said institutions. I therefore, do not find any reason to grant the relief sought for in the writ petition on the basis of the said decision relied upon by the learned counsel for the petitioner. 10. In the result, the writ petition fails and is accordingly dismissed. **WP(C).No.2479 OF 2020** Before parting with this case, this Court would like to record its appreciation for the services rendered by Adv. Emmanual Stephenson, the learned Advocate Commissioner appointed by this Court, in visiting the locality and preparing a report and submitting the same before this Court within the time limit specified therefor. Sd/- ## A.K.JAYASANKARAN NAMBIAR JUDGE SJ **WP(C).No.2479 OF 2020** **9** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE PHOTOCOPY OF PLAIN IN O.S.NO.113/2019 EXHIBIT P1(A) TRUE PHOTOCOPY OF THE IN I.A.NO.721/2019 IN O.S.NO.113/2019** **EXHIBIT P2 TRUE PHOTOCOPY OF THE COMMISSION REPORT** - **EXHIBIT P2 (A) TRUE PHOTOCOPY OF THE ROUGH SKETCH EXHIBIT P3 TRUE PHOTOCOPY OF THE WRITTEN STATEMENT FILED BY THE 2ND DEFENDANT IN O.S.NO.113/2019** **EXHIBIT P4 TRUE PHOTOCOPY OF THE REPRESENTATION/COMPLAINT DATED 13.01.2020 EXHIBIT P5 TRUE PHOTOCOPY OF THE LETTER DATED 20.01.2019 ISSUED BY THE PRESIDENT OF THE MASJID COMMITTEE. EXHIBIT P6 TRUE PHOTOCOPIES OF THE PHOTOGRAPHS SHOWING THE SUBJECT PATHWAY. EXHIBIT P7 TRUE PHOTOCOPY OF THE COMPLAINT DATED 24.10.2019.** **EXHIBIT P8 TRUE PHOTOCOPY OF THE COMMUNICATION BEARING NO.E2-18862/19 DATED 29.01.2020.** **EXHIBIT P9 TRUE PHOTOCOPY OF THE WORK MEMO BEFORE THE ADVOCATE COMMISSIONER EXHIBIT P10 TRUE PHOTOCOPY OF THE ACKNOWLEDGMENT EXHIBIT P11 TRUE PHOTOCOPIES OF THE PHOTOGRAPHS IN THE PATHWAY. RESPONDENT'S/S EXHIBITS: EXHIBIT R4(a) THE SKETCH PREPARED ALONG WITH THE COMMISSION REPORT IN O.S MO.37/2020 OF MUNSIFFS COURT KALPETTA.** **WP(C).No.2479 OF 2020** **10** **EXHIBIT R4(b) A PHOTOGRAPH EVIDENCING THE FRONT PORTION OF THE BUILDING.** **EXHIBIT R4(c) A PHOTOGRAPH EVIDENCING REAR SIDE OF THE SAID BUILDING.** **EXHIBIT R4(d) TRUE COPY OF THE PHOTOGRAPHS EVIDENCING THE SAID PATHWAY. EXHIBIT R4(e) A TRUE COPY OF THE SKETCH PREPARED AND GIVEN TO THE APPLICANT FOR FL-3 LICENSE WHILE SUBMITTING THE APPLICATION.**