## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY**
**WEDNESDAY, THE 29TH DAY OF NOVEMBER 2017/8TH AGRAHAYANA, 1939**
**WP(C).No. 33285 of 2017 (I) ----------------------------**
**PETITIONER: ----------**
**M/S. HOTEL MONAD, KP 1/738B, KARANTHUR P.O., KOZHIKODE- 673 571, REPRESENTED BY ITS MANAGING PARTNER RAGHURAM R.**
**BY ADVS.SRI.HARISH R. MENON SRI.K.T.SHYAMKUMAR SRI.A.G.PRASANTH**
**RESPONDENTS:**
**-----------**
**1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, EXCISE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 685 001.**
**2. THE COMMISSIONER OF EXCISE,**
**OFFICE OF THE COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM - 695 001.**
**3. THE DEPUTY COMMISSIONER OF EXCISE, KOZHIKODE - 673 001.**
**BY ADV. SRI.K.V.SOHAN, STATE ATTORNEY**
**THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**EL**
## **WP(C).No. 33285 of 2017 (I)**
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## **APPENDIX**
## **PETITIONER(S)' EXHIBITS**
**----------------------EXHIBIT P1 TRUE COPY OF THE ORDER DATED 11-7-2017 IN SLP(C) NO:10243/2017 OF THE HONOURABLE SUPREME COURT.**
**EXHIBIT P2 TRUE COPY OF THE NOTIFICATION SRO 1435/95 DATED 14-11-1995. EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 31-8-2017. EXHIBIT P4 A TRUE COPY OF THE JUDGMENT PASSED IN WP(C) 30241/2017 DATED 4-10-2017. EXHIBIT P5 A TRUE COPY OF THE ORDER NO. D6-5665/2017 DATED 16-10-2017. RESPONDENT(S)' EXHIBITS -----------------------**
**NIL TRUE COPY**
**P.S. TO JUDGE**
**EL**
## **SHAJI P. CHALY, J.**
## **---------------------------------------**
## **W.P.(C). No. 33285 OF 2017**
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Dated this the 29[th] day of November, 2017
## **JUDGMENT**
Petitioner is a registered partnership firm running a three star hotel in the name and style of 'Hotel Monad'. Petitioner was holding a beer/wine parlour license till 31.03.2017. The hotel is situated in Kunnamangalam Panchayat, Kozhikode District and it is located on the southern side of Kozhikode - Wayanad Road. It was having FL - 11 license from the year 2014 onwards. The distance between the road and the hotel is only 100 meters. The entrance to the hotel is through a panchayat road, which leads to the highway. The beer and wine parlour in the hotel was closed down consequent to the directions issued by the Supreme Court in **State of Tamil Nadu v. K. Balu and Another [2017(1) KLT 132]** . According to the petitioner, subsequently an order was passed by the Supreme Court on 11.07.2017 in S.L.P. (C). No. 10243/2017, evident from Ext.P1 enabling the
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hotels functioning within the municipal areas to conduct bars. According to the petitioner, the hotel is situated in a metropolitan area and as per the directions contained in Ext. P1, it is made clear that roads within a metropolitan city essentially provided connectivity within the city and therefore, they have to be considered as roads within the municipal area. It is also submitted that a 'metropolitan area' and 'municipal area' are defined under Article 243P
- (c) and (d) of the Constitution of India, which read thus:-
- “243P(c): 'Metropolitan area' means an area having a population of ten lakhs or more comprised in one or more districts and consisting of two or more Municipalities or Panchayats or either contiguous areas specified by the Governor by public notification to be Metropolitan area for the purpose of this part.
- (d) 'Municipal area' means the territorial area of a Municipality as is notified by the Governor.”
2. Therefore, the legal contention advanced by learned counsel for the petitioner is that in accordance with the directions contained in para 7 of Ext.P1 clarificatory order issued by the Apex Court in respect of
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'Municipal areas', applies to the case of the petitioner.
3. A statement is filed for and on behalf of the third respondent, basically contending that the question emerges for consideration is whether metropolitan area is part of 'municipal areas' stated by the Supreme Court and whether the petitioner is entitled to secure any reliefs in view of the relaxation granted to the judgment rendered by the Apex Court in **State of Tamil Nadu** 's case (supra).
4. I have heard learned counsel for the petitioner and learned State Attorney appearing for the respondents.
5. As per the judgment in **State of Tamil Nadu** 's (supra), the following directions were issued by the Apex
Court:-
- “(i) All states and union territories shall forthwith cease and desist from granting licenses for the sale of liquor along national and state highways;
- (ii) The prohibition contained in (i) above shall extend to and include stretches of such highways which fall within the limits of a municipal corporation, city, town or local authority;
## W.P.(C). No. 33285 of 2017
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- (iii) The existing licenses which have already been renewed prior to the date of this order shall continue until the term of the license expires but no later than 1[st] April 2017;
- (iv) All signages and advertisements of the availability of liquor shall be prohibited and existing ones removed forthwith both on national and state highways;
- (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 outer edge of the national or state highway or of a service lane along the highway;
- (vi) All States and Union territories are mandated to strictly enforce the above directions. The Chief Secretaries and Directors General of Police shall within one month chalk out a plan for enforcement in consultation with the state revenue and home departments. Responsibility shall be assigned inter alia to District Collectors and Superintendents of Police and other competent authorities. Compliance shall be strictly monitored by calling for fortnightly reports on action taken;
- (vii) These directions issue under Article 142 of the Constitution.”
6. Out of the said directions, direction contained
under Clause (ii) is relevant, which read thus:-
- “(ii) The prohibition contained in (i) above shall extend
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to and include stretches of such highways which fall within the limits of a municipal corporation, city, town or local authority;”
7. The prohibition that was created by the Apex Court in the judgment is against functioning of liquor vends within a distance of 500 meters from the road edge or its shoulders is discernible from direction No. (ii) contained above. But, it is evident that as per Ext.P1 order, the 'municipal area' is carved out from the prohibition created under direction No. (ii) referred to above, to create an exception. According to the petitioner, the hotel is functioning in a metropolitan area and therefore, it forms part of the municipality and petitioner is entitled to get the benefit of Ext.P1 order passed by the Apex Court. In my considered opinion from the prohibition created as per the judgment against the liquor vends functioning within the limits of a municipal corporation, city, town or local authority, as per Ext.P1 clarificatory order, the municipal area is given exclusion from the directions contained in the judgment. However,
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all other local authorities are remaining intact, in the direction No. (ii) quoted above. Therefore, when a law is declared by the Apex Court under Article 141 of the Constitution of India, there is no scope for any interpretation. I can only say that the exemption, as per Ext.P1 will not enure to the benefit of the petitioner since, even according to the petitioner, the hotel is functioning in a Panchayat area. In that view of the matter, I do not think the petitioner has made out a case justifying interference of this Court under Article 226 of the Constitution of India.
Writ petition fails and accordingly, it is dismissed.
**SHAJI P. CHALY JUDGE**
DCS
