P.S. Bhadrasenan v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 19TH DAY OF JUNE 2017/29TH JYAISHTA, 1939** **WP(C).No. 1871 of 2017 (H) -------------------------** **PETITIONER:** **-----------** **P.S.BHADRASENAN, AGED 61 YEARS, S/O.PUSHPANGADHAN,PROPRIETOR, HOTEL AQUA ROCK, MANNANTHALA.P.O, THIRUVANANTHAPURAM-15.** **BY SRI.C.C.THOMAS (SENIOR ADVOCATE) ADV.SRI.M.G.KARTHIKEYAN** **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, THIRUVANANTHAPURAM-695001.** **4. THE CIRCLE INSPECTOR OF POLICE, THIRUVANANTHAPURAM-695001.** **5. THE JOINT COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM-695001.** - ***6. ST.JOSEPH CATHOLIC CHURCH, LATIN ARCH DIOCESE OF THIRUVANANTHAPURAM, MANNANTHALA.P.O, MANNANTHALA, THIRUVANANTHAPURAM DISTRICT.(DELETED)** ***RESPONDENT NO.6 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 07/03/2017 IN IA.3794/17.** **R1 TO R5 BY SENIOR GOVERNMENT PLEADER SRI.P.M.MANOJ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-06-2017, THE COURT ON 19-06-2017 DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 1871 of 2017 (H) ---------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1: PHOTOCOPY OF THE STAR CLASSIFICATION ORDER DATED 10.2.2016 ISSUED BY THE INDIATOURISM, CHENNAI.** **EXHIBIT P2: PHOTOCOPY OF THE JUDGMENT DATED 27.5.2016 IN WP(C)15743/2016 PASSED BY THIS HON'BLE COURT. EXHIBIT P3: PHOTOCOPY OF THE APPLICATION DATED 19.2.2016 SUBMITTED BEFORE THE 2ND RESPONDENT.** **EXHIBIT P4: PHOTOCOPY OF THE ORDER NO.XC7-5929/2016 DATED 23.6.2015 PASSED BY THE 2ND RESPONDENT.** - **EXHIBIT P5: PHOTOCOPY OF THE REVISION PETITION,FILED BEFORE THE 1ST RESPONDENT,DATED 30.6.2016.** - **EXHIBIT P6: PHOTOCOPY OF THE PHOTOGRAPH OF THE CHURCH. EXHIBIT P7: PHOTOCOPY OF THE JUDGMENT DATED 14.7.2016 IN WP(C)23547/2016 PASSED BY THIS HON'BLE COURT.** - **EXHIBIT P8: PHOTOCOPY OF THE ORDER,GO(RT)NO.647/2016/TD DATED 20.8.2016 PASSED BY THE 1ST RESPONDENT.** - **EXHIBIT P9: PHOTOCOPY OF THE JUDGMENT DATED 3.10.2016 IN WP(C)NO.28419/2016 PASSED BY THIS HON'BLE COURT.** - **EXHIBIT P10: PHOTOCOPY OF THE LETTER DATED 18.11.2016 SENT BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT.** - **EXHIBIT P11: PHOTOCOPY OF THE ORDER NO.XC7-5929/2016/K.DIS DATED 9.1.2017 PASSED BY THE 2ND RESPONDENT.** - **EXHIBIT P12: PHOTOCOPY OF THE JUDGMENT DATED 17.8.2015 IN WP(C)NO.2666/2014 PASSED BY THIS HON'BLE COURT.** - **EXHIBIT P13: PHOTOCOPY OF THE PETITION FOR EXTENSION OF TIME WITH A PETITION TO CONDONE THE DELAY IN FILING THE APPLICATION FILED WP(C)28149/2016.** - **EXHIBIT P14: PHOTOCOPY OF THE DECISION, STATE OF KERALA & OTHERS VS. BABU JOHN REPORTED IN 2012(4) KHC 735(DB).** - **RESPONDENTS' EXHIBITS: NIL.** **//TRUE COPY//** **mbr/** **P.S. TO JUDGE** ## **C.R.** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.1871 of 2017 ----------------------------------------------Dated this the 19[th] day of June, 2017** ## **JUDGMENT** This writ petition is filed by the petitioner challenging Ext.P11 order passed by the 2[nd] respondent dated 09.01.2017, whereby the FL-11 license sought for by the petitioner under the Foreign Liquor Rules, 1953 was declined. Essential facts for the disposal of the writ petition are as follows: 2. Petitioner has submitted Ext.P3 application for FL11 license i.e. for beer/wine parlour, which was rejected as per Ext.P4, on the ground that the distance between the gate of the hotel and the gate of St. Joseph Catholic Church, Mannanthala is only 184 metres, since as per the second proviso to Rule 13(1) of the Foreign Liquor Rules, no foreign liquor shop shall be located within 200 metres from any Educational Institution, Temple, Church, Mosque, Burial Ground etc. etc. Being aggrieved, petitioner preferred Ext.P5 revision before the State Government, which was dismissed as per Ext.P8 order. 2 **W.P.(C) No.1871 of 2017** 3. Petitioner challenged Exts.P4 and P8 before this Court and as per Ext.P9 judgment, direction was issued to reconsider Ext.P3 application in the light of the principles of law laid down by a Division Bench of this Court in _**'State of Kerala v. Vijayakumar'**_ [2009 (1) KLT 578]. The 3[rd] respondent after conducting joint inspection with the 5[th] respondent, as instructed by the 2[nd] respondent, filed Ext.P10 report, certifying that the distance between the gate of the hotel and the gate of the alleged church is 212 metres, and accordingly, recommended the application. 4. But the 2[nd] respondent rejected the application _vide_ Ext.P11, stating that some part of the road cannot be taken into account since it is within the private property belonging to the petitioner. These are the background facts projected by the petitioner to sustain the reliefs sought for in the writ petition. 5. First respondent has filed a counter affidavit justifying Ext.P11 order passed by the 2[nd] respondent, and contending that since the subject matter was considered elaborately by the 2[nd] respondent after providing sufficient opportunity of hearing to the petitioner and has arrived at a 3 **W.P.(C) No.1871 of 2017** conclusion in a legalistic manner, interference of this Court may not be warranted under Article 226 of the Constitution of India. 6. Heard learned Senior Counsel for the petitioner, Sri. C.C. Thomas and the learned Senior Government Pleader, Sri. P.M. Manoj, appearing for the respondents. Perused the documents on record and the pleadings put forth by the respective parties. 7. The subject issue revolves around Ext.P11 order passed by the 2[nd] respondent. On a reading of Ext.P11, it is clear that on the basis of the directives issued by this Court in Ext.P9 judgment in W.P.(C) No.28419 of 2016 dated 03.10.2016, a detailed investigation was conducted by the 2[nd] respondent through the Deputy Excise Commissioner and other officers of the Excise Department, and has arrived at a finding after providing an opportunity of hearing to the petitioner on 19.11.2016. It is true, as per Ext.P10 report submitted by the Deputy Excise Commissioner dated 18.11.2016, the grant of license to the petitioner is recommended. According to the 3[rd] respondent Deputy Commissioner of Excise, the petitioner has produced a new plan demarcating the new gate of the hotel in **W.P.(C) No.1871 of 2017** 4 triplicate through Circle Inspector of Excise, Thiruvananthapuram and received in the Commissionerate of Excise on 17.10.2016, as per which, the applicant has removed and closed the existing gate shown in the plan, appended to the original application, by putting up a wall in that place and changing the location of the gate. The distance between the church and the new gate has been measured through both sides of the Mannanthala-Keraladithyapuram PWD Road, and it is admeasuring 212 metres. The paramount contention advanced by learned Senior Counsel for the petitioner is that, in Ext.P11 order passed by the 2[nd] respondent, the report of the Deputy Commissioner of Excise was not taken into account, and therefore, Ext.P11 suffers from the vice of arbitrariness, justifying interference of this Court. 8. I have gone through Ext.P11 order, wherein it is stated that the Joint Excise Commissioner, South Zone, Thiruvananthapuram and the Deputy Commissioner of Excise, Thiruvananthapuram have jointly measured the distance between the hotel and the nearest objectionable site St. Joseph Catholic Church and submitted their report along with **W.P.(C) No.1871 of 2017** 5 the sketch of the location. In the report, it is stated, the distance from the gate of the church to the gate of the hotel is 212 metres. But, on an examination of the sketch, it is seen that the gate of the hotel is placed at the back end of the building of the hotel through the own property of the applicant, and it is therefore, obvious that the applicant has shifted the gate inside his own property in order to get the distance exceeding 200 metres to circumvent the distance rule provided under the Foreign Liquor Rules. It is also found that the property in front of the hotel building used as pathway to enter the hotel is not a public pathway, rather it is the own property of the petitioner. 9. In order to appreciate the legal question with respect to reckoning of the distance within the private property belonging to the petitioner, a reference to Note (2) to Rule 13 (1) of the Foreign Liquor Rules, 1953, would be worthwhile, which read thus: _“Note:-(2) In calculating distance the basis will be the shortest pathway/lane/street/road generally used by the public and the same shall be measured from gate to gate.”_ 10. In my considered opinion, the Note is provided with the object of carrying out the measurement from the gate **W.P.(C) No.1871 of 2017** 6 through the shortest pathway/lane/street or road generally used by the public to the objectionable site. Therefore, the parameter adopted by the 2[nd] respondent by taking the measurement from the gate of the hotel situated near to the shortest pathway/lane/street etc. used by the public generally, cannot be said to be illegal. Which thus means, the measurement to satisfy the rule is to be taken from the gate nearer to the pathway or road or street used by the public generally and to the gate of the objectionable site. Therefore, the private property owned by the petitioner cannot be said to be a pathway, lane, street or road generally used by the public. To summarize what I could gather, the term “generally” used in Note (2) assumes importance, and in my considered opinion, it provides a meaning that such street or road or pathway shall be the one used by the public in general, and not members of the public visiting the FL-11 premises in question. 11. The Chambers 20[th] Century Dictionary [new edition], defines the term 'general' as follows: “relating to a genus or whole class; including various species; not special; not restricted or specialized; relating to the whole or to all or **W.P.(C) No.1871 of 2017** 7 most; universal; common; prevalent; wide spread etc. etc.” Moreover, it is well settled, and apposite that the words of a statute must _prima facie_ be given their ordinary meaning. So also, when words, phraseologies and specific terms used are clear, plain and unambiguous, then the salutary principle is, give effect to the meaning intended by the legislature so as to achieve the purpose and purport of the legislation. It also means, any method adopted by an applicant to circumvent the provisions of the rule in question to secure license is not welcoming. 12. Taking into account all these aspects, it cannot be said that the 2[nd] respondent has erred in exercising his jurisdiction. Moreover, a reading of the order shows that the principles of natural justice was complied with, and the entire aspects were considered, reckoning the law involved in the subject matter, and has arrived at a definite conclusion that the distance from the gate of the hotel to the objectionable site in question is only 181.5 metres. 13. Sequel to the discussion is, the site provided by the petitioner in Ext.P3 application is hit by the 2[nd] proviso to Rule 13(1) of the Foreign Liquor Rules, the church being an 8 ## **W.P.(C) No.1871 of 2017** objectionable site. Therefore, I do not find any arbitrariness, illegality or other legal infirmities justifying interference of this Court in Ext.P11 order by exercising the power of judicial review under Article 226 of the Constitution of India. Resultantly, writ petition fails, accordingly, it is dismissed. Sd/- **SHAJI P. CHALY JUDGE** //true copy// P.S. to Judge St/14.06.2017