M/S Hotel Deliza Residency Wadakkancherry v State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNESDAY, THE 9TH DAY OF AUGUST 2017/18TH SRAVANA, 1939 WA.No. 1427 of 2017 IN WP(C).16847/2017 -------------------------------------------AGAINST THE JUDGMENT IN WP(C) 16847/2017 of HIGH COURT OF KERALA DATED 27-06-2017 ------- APPELLANT/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 ADVS.SRI.C.C.THOMAS (SR.) SRI.NIREESH MATHEW SRI.M.G.KARTHIKEYAN RESPONDENTS/RESPONDENTS: ----------------------------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY, TAXES (A) DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695001 2. THE EXCISE COMMISSIONER, - COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM-695033 3. THE DEPUTY COMMISSIONER OF EXCISE, - THRISSUR-680001. 4. THE CIRCLE INSPECTOR OF EXCISE, WADAKKANCHERRY, THRISSUR DISTRICT-680582. 5. THE JOINT EXCISE COMMISSIONER, - CENTRAL ZONE, KOCHI-682011. ## BY SR. GOVERNMENT PLEADER SRI.RENIL ANTO KANDAMKULATHY THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 09-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **ANTONY DOMINIC, & DAMA SESHADRI NAIDU, JJ.** ------------------------------------------------ W. A. No.1427 of 2017 -----------------------------------------------Dated this the 9[th] day of August, 2017 ## **JUDGMENT** ## **Antony Dominic, J.** The petitioner in W.P.(C) No.16847 of 2017 is the appellant, a partnership firm which has established a three-star hotel at Wadakkancherry. Till 31.03.2015, the hotel had an FL-3 licence and, thereafter, it was issued an FL-11 licence in accordance with Rule 13(11) of the Foreign Liquor Rules, 1953. The licence was renewed up to 31.03.2017. Later, the appellant applied for renewal of the licence for the year 2017-18. 2. But, in view of the Apex Court's judgment in State of Tamil Nadu and Others v. K. Balu and Another [2017 (1) KHC 26 (SC)], the Government W. A. No.1427 of 2017 -2- did not renew the licence. Again, the appellant submitted the Ext.P4 application, contending that on account of the alterations made, the distance from the National Highway is 503 metres. The appellant sought to substantiate that claim by relying on Ext.P8 report. However, the third respondent rejected the application through Ext.P10 order, stating that out of the 503 metres, 45 metres could not be considered, as it was not a pathway generally used by the public. Under these circumstances, the appellant filed the writ petition. 3. By the judgment under appeal, the learned single Judge upheld the order and further held that the parameters contained in Note-2 to Rule 13(1) of the Foreign Liquor Rules, 1953, were rightly applied to W. A. No.1427 of 2017 -3- measure the distance. Yet, the learned Single Judge quashed the Ext.P10 order and directed the third respondent to consider the appellant’s application afresh in the light of Ext.P7 plan. It is this judgment that is now under challenge before us. 4. The only issue that was raised and argued by the learned Senior Counsel for the appellant was that the learned single Judge erred in upholding the measurement of distance applying the parameters contained in Note-2 to Rule 13(1) of the Foreign Liquor Rules. According to him, Note-2 to Rule 13(1) of the Foreign Liquor Rules prescribes the method of measurement of distance for the purpose of ensuring that no liquor shop shall be located within the prohibited distance of 200 metres from any W. A. No.1427 of 2017 -4- educational institution, temple, church, mosque, etc. For determining the 200 metre distance so prescribed alone, Note-2 is relevant, because the Note provides the norms for calculating only that distance: to be measured from gate to gate, based on the shortest pathway/lane/street/road generally used by the public. 5. On the other hand, the learned Government Pleader contended that in Balu's case (supra), the Supreme Court had directed that no shop for the sale of liquor shall be situated within 500 metres from the outer edge of the national or state highway or of a service lane along the highway. He asserted that when 500 metres distance is to be determined, in the absence of any other yardstick prescribed, State is entitled to take recourse to Note-2 to Rule 13(1) of the -5- W. A. No.1427 of 2017 Foreign Liquor Rules. Therefore, according to him, the learned single Judge was fully justified in upholding the measurement applying Note-2 to Rule 13(1). 6. We have considered the submissions made. 7. In Balu's case (supra), the Apex Court had issued various directions to prevent location of liquor shops, within a prescribed distance, along the side of national and state highways. Insofar as it is relevant, in paragraph 24 of the judgment, it was inter alia ordered thus: “24. xxxxx (i)xxxxx (ii)xxxxx (iii)xxxxx (iv)xxxxx (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 -6- W. A. No.1427 of 2017 outer edge of the national or state highway or of a service lane along the highway.” 8. A reading of the above direction issued by the Apex Court would show that no liquor shop 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 national or state highway or of a service lane along the highway. The purposes for which such directions were issued by the Apex Court are also explained in detail in the judgment. The Apex Court having issued the aforesaid directions, in exercise of its powers under Article 142 of the Constitution of India, the state and other authorities are bound to ensure compliance thereof. W. A. No.1427 of 2017 -7- 9. The question to be considered in this case is whether in measuring out the 500 metre distance indicated in the judgment of the Apex Court, the state is entitled to take recourse to Note-2 to Rule 13(1) of the Foreign Liquor Rules. Foreign Liquor Rules, 1953, are framed in exercise of the powers conferred by Section 10, 24 and 29 of the Cochin Abkari Act, 1 of 1077, as subsequently amended and continued in force by the Travancore-Cochin State Administration and Application of laws Act VI of 1125. The Rule 13 provides for licences for possession, use or sale of foreign liquor and the description and forms of such licences. Rule 13(1) provides for Foreign Liquor 1 licence. This rule inter alia provides that no such shop shall be located within 200 metres from any W. A. No.1427 of 2017 -8- educational institution, temple, church, mosque, burial ground or scheduled caste/scheduled tribe colony. Note-2 to this Rule provides as follows: “ _**Note.-**_ (2) In Calculating the distance the basis will be shortest pathway/lane/street/road generally used by the public and the same will be measured from gate to gate.” 10. Similar prescription is contained in Rule 13(3) providing for Foreign Liquor 3 Hotel (Restaurant) Licence. These prescriptions are also made applicable to Foreign Liquor 11 Beer/Wine Parlour Licence as well. It does not need much explanation to conceive that the purpose of providing 200 metres prohibited distance from the specified institutions/places, and the purpose of directing that no liquor shops shall be established within 500 metres of the outer edge of the national or W. A. No.1427 of 2017 -9- state highway or of a service lane along the highway, are totally different. While ensuring that sale of liquor does not take place within 200 metres from the specified institutions/places is the object of Note-2 to the provisions of Rule 13, the object of the prescription of 500 metres is clear from para 10 and 11 of the Apex Court's judgment itself, and therefore, are extracted for reference: “10. The figures which are available on the record indicate that the occurrence of a large number of road accidents is not a phenomenon confined to national highways nor is the prevalence of road accidents, including fatalities, confined only to the national highways. Both the national highways and state highways share a common experience of an unacceptably high number of road accidents, the prevalence injuries and fatalities; drunken driving being one of the major causes. Hence, the content of the advisories which have been issued by the Union government as well as their basis, rationale and foundation would equally apply to state highways. Human life is precious. As the road W. A. No.1427 of 2017 -10- network expands in India, road infrastructure being an integral part of economic development, accidents profoundly impact on the life of the common citizen. For a nation on the cusp of economic development, India can well avoid the tag of being the accident capital of the world. Our highways are expanding, as are the expressways. They provide seamless connectivity and unheralded opportunities for the growth of trade and industry and for the movement of goods, persons and capital. They are the backbone of the freedom of trade and commence guaranteed by Article 301 of the Constitution. Our highways are dotted with sign boards warning of the dangers of combining speed and alcohol. Together, they constitute a heady cocktail. The availability of liquor along the highways is an opportunity to consume. Easy access to liquor shops allows for drivers of vehicles to partake in alcohol, in callous disregard to their own safety and the safety of others. The advisories of the Union government to the states are founded on a logical and sound rationale. 11. We are conscious of the fact that the policy of the Union government to discontinue liquor vends on national highways may not eliminate drunken driving completely. A driver of a motor vehicle can acquire liquor even before the commencement of a journey or, during a journey at a place other than a national or state highway. The W. A. No.1427 of 2017 -11- law on preventing drunken driving also requires proper enforcement. Having said this, the Court must accept the policy of the Union government for more than one reason. First and foremost, it is trite law that in matters of policy, in this case a policy on safety, the Court will defer to and accept a considered view formed by an expert body. Second as we have seen, this view of the Union government is based on statistics and data which make out a consistent pattern year after year. Third the existence of liquor vends on highways presents a potent source for easy availability of alcohol. The existence of liquor vends; advertisements and sign boards drawing attention to the availability of liquor coupled with the arduous drives particularly in heavy vehicles makes it abundantly necessary to enforce the policy of the Union government to safeguard human life. In doing so, the Court does not fashion its own policy but enforces the right to life under Article 21 of the Constitution based on the considered view of expert bodies.” 11.To achieve the object that liquor is not sold only beyond the 200 metre prohibited distance from the specified places/institutions, it is necessary that the distance should be measured through the shortest W. A. No.1427 of 2017 -12- pathway/lane/street/road used by the general public and that the measurement shall be from gate to gate. But these yardsticks for measurement of distance are not of relevance in measuring the 500 metre distance prescribed by the Apex Court, for, the object that is sought to be achieved by such prescription is, totally different. If the purpose that is achieved by these two prescriptions are totally different, the prescriptions contained in Foreign Liquor Rules, 1953, cannot be imported when 500 metre specified in the judgment of the Apex Court is determined. 12. That apart, though sale of liquor is not a fundamental right of anyone, when the State is farming out the privilege of sale of liquor to citizens, the enjoyment of such a privilege is subject to restrictions. W. A. No.1427 of 2017 -13- These restrictions are contained in the Abkari Act and the Rules framed thereunder. In addition, the directions issued by the Apex Court in exercise of its powers under Article 142 of the Constitution also would have to be complied with. Neither in the Abkari Act nor in the Rules framed thereunder, is there any prescription that there shall not be liquor shops within 500 metres as ordered by the Apex Court. The Apex Court was conscious of it and therefore, it was clarified in the judgment itself that the directions were issued in exercise of powers under Article 142 of the Constitution of India. 13. The judgment, evidently, does not contain a direction that the 500 metre distance shall be determined applying Note-2 to Rule 13(3) or any other W. A. No.1427 of 2017 -14- rule framed by the state governments. The state also has not amended the Foreign Liquor Rules in any manner. On the other hand, if measurement of distance is to be made applying Note-2, that would lead to unforeseen and disastrous consequences. 14. Take an example: where a luxury hotel or a resort is established in 100 acres of land situated adjacent to a national or state highway. If distance is to be measured from the outer edge of the highway to the gate of the property, it would not possible to grant licence even if the shop or selling outlet is situated at the other end of the property. Similarly any access provided to the selling outlet within the property would not be a pathway/lane/ street/road generally used by the public. We have no doubt that Supreme Court W. A. No.1427 of 2017 -15- would not have intended such results when the directions were issued. Therefore, if the parameters of Note-2 are applied to measure the 500 metre distance prescribed by the Apex Court, that would result in ridiculous results and therefore should not be adopted. 15. To sum up, if the distance is measured from the edge of a highway, and if the liquor outlet or the vending point _per se_ is beyond 500 meters, it passes the judicial muster: it must be reckoned that the outlet is beyond the distance mandated by the Supreme Court. 16. Therefore, neither the state nor the authorities subordinate thereto, could have called in aid the provisions of Note-2 to Rule 13(1) while determining W. A. No.1427 of 2017 -16- the eligibility of an applicant for a licence under the Foreign Liquor Rules. Therefore, the judgment of the learned single Judge upholding the measurement of distance to the building of the appellant applying Notes-2 to Rule 13(1) cannot be sustained and is set aside to that extent. 17. This being the only issue raised for our consideration, the appeal is disposed of vacating the finding of the learned single Judge to the above extent. The appeal is disposed of accordingly. Sd/- **ANTONY DOMINIC JUDGE** Sd/- **DAMA SESHADRI NAIDU JUDGE** kns/- //TRUE COPY// P.S. TO JUDGE W. A. No.1427 of 2017 -17-