M/S. HOTEL DELIZA RESIDENCY v. STATE OF KERALA & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 27TH DAY OF JUNE 2017/6TH ASHADHA, 1939** ## **WP(C).No. 16847 of 2017 (E)** **----------------------------** ## **PETITIONER :** **---------------------** **M/S. HOTEL DELIZA RESIDENCY, WADAKKANCHERRY, THRISSUR DISTRICT, REPRESENTED BY ITS MANAGING PARTNER, SRI.P.G. MOHAN, AGED 60 YEARS, S/O. GOPALAKRISHNAN.** **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, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM-695 033.** **3. THE DEPUTY COMMISSIONER OF EXCISE, THRISSUR-680 001** **4. THE CIRCLE INSPECTOR OF EXCISE, WADAKKANCHERRY, THRISSUR DISTRICT-680 582** **5. THE JOINT EXCISE COMMISSIONER, CENTRAL ZONE, KOCHI-682 011** ## **BY SR GOVERNMENT PLEADER SMT.C.S.SHEEJA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-06-2017, THE COURT ON 27-06-2017 DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 16847 of 2017 (E)** ## **-----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -------------------------------------** ## **EXHIBIT-P1 TRUE COPY OF THE APPROVED PLAN** - **EXHIBIT-P2 TRUE COPY OF THE FL-11 LICENSE NO. TSR-79 ISSUED TO THE PETITIONER** - **EXHIBIT-P3 TRUE COPY OF THE RENEWAL CERTIFICATE DATED 30/03/2017** - **EXHIBIT-P4 TRUE COPY OF THE APPLICATION DATED 14/04/2017 SUBMITTED TO THE 2ND RESPONDENT THROUGH PROPER CHANNEL** - **EXHIBIT-P5 TRUE COPY OF THE PLAN SUBMITTED ALONG WITH EXHIBIT-P4** - **EXHIBIT-P6 TRUE COPY OF THE APPLICATION DATED 27/04/2017 SUBMITTED TO THE 2ND RESPONDENT THROUGH PROPER CHANNEL** - **EXHIBIT-P7 TRUE COPY OF THE PLAN SUBMITTED ALONG WITH EXHIBIT-P6** - **EXHIBIT-P8 TRUE COPY OF THE LETTER DATED 10/05/2017 ISSUED BY THE 3RD RESPONDENT** - **EXHIBIT-P9 TRUE COPY OF THE APPLICATION DATED 15/05/2017 SENT TO THE 2ND RESPONDENT THROUGH THE 4TH RESPONDENT** - **EXHIBIT-P10 TRUE COPY OF THE ORDER NO. R2-4824/2017 DATED 26/04/2017 PASSED BY THE 3RD RESPONDENT** - **EXHIBIT-P11 TRUE COPY OF THE TWO DECISION REPORTED IN 2017 (1) KHC 26 (SC) STATE OF TAMILANDU AND OTHERS V. BALU AND ANOTHER** - **EXHIBIT-P12 TRUE COPY OF THE JUDGMENT DATED 17/11/2016 IN W.P(C) 23625/2016 PASSED BY THIS HON'BLE COURT** **RESPONDENT(S)' EXHIBITS: NIL -----------------------------------------** **/TRUE COPY/** **P.S.TO JUDGE** **sts** ## **CR** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.16847 of 2017 ----------------------------------------------Dated this the 27[th] day of June, 2017** ## **JUDGMENT** The challenge in this writ petition is against Ext.P10 order issued by the Deputy Commissioner of Excise, Thrissur, the 3[rd] respondent herein, dated 26.04.2017, whereby the renewal of license sought for by the petitioner in respect of FL-11 license under Foreign Liquor Rules for the year 2017-18 is rejected in accordance with the principles of law laid down by the apex court in ' _**State of Tamil Nadu and Others v. K. Balu and**_ _**Another'**_ [2017 (1) KHC 26 (SC)], and seeking other consequential reliefs. Necessary facts encapsulated for disposal of the writ petition are as follows: 2. Petitioner is a partnership firm conducting a three star classified hotel at Wadakkancherry, which originally obtained an FL-3 license, which was in force till 31.03.2015. Thereafter, petitioner was issued with Ext.P2 FL-11 license in accordance with Rule 13(11B) of the Foreign Liquor Rules introduced on 30.12.2014. The license was being renewed up to 31.03.2017. Thereafter, seeking renewal of Ext.P2 license 2 **W.P.(C) No.16847 of 2017** for the year 2017-18, an application was submitted, acknowledged by Ext.P3. However, the license was closed on 01.04.2017, stating that the hotel is situated within 500 metres from State Highway No.22, Wadakkancherry - Shornur sector. Thereupon, petitioner submitted Ext.P4 application by making certain alterations to the premises, and constructing a new road within the compound, and making the entry to the hotel, in a different manner. Therefore, according to the petitioner, thus it could secure a distance of 503 metres, evident from Ext.P8 report of the 3[rd] respondent. 3. However, the 3[rd] respondent is of the opinion that, out of 503 metres, 45 metres cannot be taken into account, since it is not a pathway generally used by the public, and accordingly, rejecting the renewal of license as per Ext.P10 order, served on the petitioner on 17.05.2017. 4. According to the petitioner, the stand of the 3[rd] respondent with respect to the measurement conducted is illegal, because there is no direction issued by the apex court in the judgment in ' _**State of Tamil Nadu and Others v. K. Balu and Another'**_ [2017 (1) KHC 26 (SC)], the particular manner by which the measurement is to be carried out to 3 **W.P.(C) No.16847 of 2017** ascertain the distance of 500 metres from the Highway to the entry of the hotel. Anyhow, petitioner submitted Ext.P6 application by closing the gate in controversy and making the entry from a Municipal road as per Ext.P7 plan. 5. It is the case of the petitioner that, as per Ext.P8 report, through the municipal road, the distance from the highway to the gate of the hotel in question is 505 metres, however, the same is declined, stating that there is objection from the residents of the housing colony by the side of the municipal road. Thereupon, petitioner submitted Ext.P9 application, requesting to consider either Ext.P4 or Ext.P6 application and to pass an order, since as per the application submitted by the petitioner, petitioner is entitled to get renewal of Ext.P2 license, however, no orders are passed thereunder. Other contentions are raised by the petitioner with respect to the illegality in conducting the measurement, and the non-consideration of the law laid down by the apex court in the afore-quoted judgment in its letter and spirit. Therefore, according to the petitioner, petitioner is entitled to get the license renewed since there is no violation of the distance rule prescribed by the apex court in the judgment in 4 **W.P.(C) No.16847 of 2017** ' _**K. Balu'**_ ( _supra_ ), by calculating the distance with the State highway in question. 6. Heard learned Senior Counsel for the petitioner and the learned Senior Government Pleader and perused the documents on record and the pleadings put forth by the petitioner. 7. The paramount contention advanced by Sri. C.C. Thomas, learned Senior Counsel for the petitioner is that, in order to carry out the measurement to identify the 500 metres distance prescribed by the apex court in its judgment in ' _**K. Balu'**_ ( _supra_ ), the parametres provided under the Foreign Liquor Rules need not be followed by the respondents. According to the learned Senior Counsel, the apex court had only stated that the license shall not be provided to conduct liquor vends within 500 metres of national and State Highways, and there is no prescription with respect to the manner by which, measurement is to be carried out, and therefore, the respondents went wrong in carrying out the measurement as per Note-(2) to Rule 13 of the Foreign Liquor Rules, 1953, wherein, such prescription is made only to find out the 200 metres distance from the objectionable site **W.P.(C) No.16847 of 2017** 5 provided in the second proviso thereto. It is also contended that the gate to gate distance is also provided for the purpose of identifying the 200 metres distance from the pathway/lane/street/road generally used by the public. 8. That apart, it is contended, as per clause (v) of paragraph 24 of the judgment in _**'K. Balu'**_ ( _supra_ ), the intention of the apex court is to avoid (i) the visibility of a liquor vend from a national or state highway; (ii) it should not be directly accessible from a national or state highway, and (iii) it shall not be 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. Therefore, it is the contention of the learned Senior Counsel that, Ext.P10 order passed, holding that 45 metres carved out within the compound to exclude from the 503 metres measured out from the outer edge of State Highway No.22 cannot be said to be legal or in compliance with the directives issued by the apex court in the judgment referred to supra. 9. So also, it is submitted, the access to the hotel from the aforesaid State highway as per Ext.P7 plan is not at all objectionable to the principles of law laid down by the apex 6 **W.P.(C) No.16847 of 2017** court in the afore-quoted judgment. There, the only objection made by the 3[rd] respondent is that the residents of the locality are objecting to the grant of license to the said pathway, which was a pathway generally used by the public and maintained by the Municipality concerned. 10. The learned Senior Government Pleader, on the other hand, submitted that, Ext.P10 order has no manner of illegality, since the same is in accordance with the directives issued by the apex court in the judgment in question. So also, it is submitted that by creating a road within the compound of the hotel in order to extend the distance of 45 metres to the entry of the hotel is only to defeat the judgment rendered by the apex court, which cannot be tolerated. It was taking into account the said factual circumstances, the 3[rd] respondent has declined renewal of license to the petitioner. So far as the municipal road is concerned, learned Senior Government Pleader submitted that the people residing by the side of the said road are making hue and cry against the renewal of license to the petitioner by measuring the distance through the municipal road. **W.P.(C) No.16847 of 2017** 7 11. Summarizing the fact situations and reckoning the law involved in the subject matter, the question to be considered is, whether the 3[rd] respondent was right in stating that 45 metre road created within the compound of the hotel cannot be taken into account for measuring 500 metres distance from the outer edge of the State highway. The discussion made above clearly shows that the 3[rd] respondent has declined renewal of license to the petitioner apparently by relying upon the judgment of the apex court in _**'K. Balu'**_ ( _supra_ ). It is true, the manner in which the measurement is to be made from the State highway or national highway to the liquor vends is not specified. From a reading of Ext.P10, it is clear that the 3[rd] respondent was bearing in mind the rule contained under Note-(2) to Rule 13 of the Foreign Liquor Rules, to carry out the measurement, by which the distance is to be reckoned from the shortest pathway/lane/street/road generally used by the public, and it shall be done from gate to gate. On a reading of the judgment of the apex court in ' _**K. Balu'**_ , and subsequent clarification issued thereto, reported in ' _**2017 (2) KHC 360 (SC),**_ it is clear that the intention behind laying down the law under Article 142 of the Constitution of 8 **W.P.(C) No.16847 of 2017** India is to ensure prohibition of sale of liquor on national and State highways, and thereby to avoid drunken driving and accidents thereto. That apart, the judgment was rendered based on statistics made available with respect to the accidents occurred on the State and national highways consequent to drunken driving, and the serious injuries and death occurred to innocent people. 12. Therefore, going by the intention of the apex court, a distance of 500 metres was provided to have the liquor vends from the outer edge of the national or State highways or the service road, so as to avoid accessibility and eliminate any manner of temptation to the drivers. By stipulating such a distance, apex court felt that the mischief can be avoided. Intention of the apex court being that, by making a road within the private property of the hotel in question cannot be justified. Such a road is created within the private compound to overreach the distance rule provided by the apex court. Moreover, the intention is very clear, that is to protect the interest of the innocent public from accidents caused by drunken driving. Moreover, when a rule is prescribed under a statute to issue liquor license by adopting a parameter with 9 **W.P.(C) No.16847 of 2017** respect to calculation of distance to an objectionable site, it is apposite on the part of the statutory authority to follow such rule in measuring out the distance in order to identify the objectionable site as per the judgment of the apex court in _**'K. Balu'**_ ( _supra_ ). Which thus means, the authority has exercised the power conferred on him to effectuate the purpose, and object, and translate and convey the intention of the law laid down by the apex court under Article 142 of the Constitution of India. In sum and substance, so long as the said law declared survives, it is the law of the land, and the Courts and authorities are bound to follow the same. Therefore, in my considered opinion, it cannot be said that the methodology adopted by the 3[rd] respondent to calculate the distance of 500 metres, by relying upon a rule provided under the Foreign Liquor Rules, for issuing licenses to vend liquor, is in any manner illegal, illogical, arbitrary or unfair. 13. Therefore, there is no reason for me to interfere in Ext.P10 order, declining renewal of license to the petitioner by excluding the 45 metres within the compound of the petitioner. 10 **W.P.(C) No.16847 of 2017** 14. However, petitioner has also a case that so far as the entry from the State highway through the municipal road provided in Ext.P7 plan is more than 500 metres, declining license by calculating the distance through that road, in the guise of public agitation, cannot be sustained. Merely because an agitation is created by a section of the public, the statutory authority cannot decline license if the entry to the hotel through the said public road is in accordance with the prescriptions of the Foreign Liquor Rules, and 500 metres distance rule provided by the apex court in the judgment in ' _**K. Balu'**_ ( _supra_ ). I find force in the contention advanced by learned Senior Counsel for the petitioner in that regard. 15. Therefore, I quash Ext.P10 order to the said extent, and direct the 3[rd] respondent to consider the license application of the petitioner, taking into account the directives contained above, and pass appropriate orders in accordance with law, at the earliest and at any rate, within two weeks from the date of receipt of a copy of this judgment. 11 **W.P.(C) No.16847 of 2017** The writ petition is disposed of accordingly. Sd/- **SHAJI P. CHALY JUDGE** //true copy// P.S. to Judge St/20.06.2017