High Court of KeralaSingle Judge2017-10-17Writ petition disposed of; interim order contin...

Rajeev Viswanathan and Rahul R. v. Excise Commissioner, Thiruvananthapuram; Excise Inspector, Attingal; The Managing Director, Kerala State Beverages Corporation (M&M), Thiruvananthapuram; The Manager, Foreign Liquor Shop, Kerala State Beverages Corporation, Kallambalam, Thiruvananthapuram; Karavaram Grama Panchayat, Karavaram P.O., Thiruvananthapuram, represented by its Secretary; R. Muralilal (Additional Sixth Respondent)

Case / Petition Number:WP(C).No. 3934 of 2017 (N)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Shaji P. Chaly
Judgment Date: 2017-10-17
Court Decision / Holding: Writ petition disposed of with directions that if any application for shifting FL-1 shop is received, it shall be considered by the competent Excise authority (either the Deputy Commissioner of Excise or the Excise Commissioner) and a final decision attained within six weeks from receipt of the judgment copy after giving due hearing to all parties; the interim order will continue until such finality is reached.
Final Disposition: Writ petition disposed of; interim order continued; directions issued for consideration of any future application within six weeks by the competent Excise authority with hearing.

Parties to the Case

Appellants / Petitioners

Rajeev Viswanathan
Rahul R.

Respondents

Excise Commissioner, Thiruvananthapuram
Excise Inspector, Attingal, Thiruvananthapuram
The Managing Director, Kerala State Beverages Corporation (M&M), Thiruvananthapuram
The Manager, Foreign Liquor Shop, Kerala State Beverages Corporation, Kallambalam, Thiruvananthapuram
Karavaram Grama Panchayat, Karavaram P.O., Thiruvananthapuram, represented by its Secretary
R. Muralilal S/o Ramachandran (Added Sixth Respondent)

Legal Representation & Advocates

Counsels for Petitioners

• Latheesh Sebastian

Counsels for Respondents

• C.S. Sheeja (Senior Government Pleader)
• Naveen T. (Senior Counsel)
• Gopakumar R. ThaliyAL (Advocate)
• R. Anoop (Advocate)

Case Synopsis & Summary

Petitioners Rajeev Viswanathan and Rahul R., residents of Karavaram Grama Panchayat, filed WP(C). No. 3934 of 2017 challenging the proposal by the third and fourth respondents (the Excise Commissioners/officials and the Kerala State Beverages Corporation) to shift a Foreign Liquor Retail Outlet (FL-1 shop) from its current location to Building No. 1/668 in Karavaram Grama Panchayat. The petition relies on the Apex Court’s judgment in State of Tamil Nadu & Others v. K. Balu and Another (2017) to highlight concerns about proximity to places of worship and education, noting that three temples and three schools fall within the 200-meter distance prescribed for such outlets. The counter, filed by the second respondent, disputes reception and processing of any shift application, claiming the matter is premature and would be decided in accordance with the Foreign Liquor Rules, 1953 and the K. Balu precedent when an application is received. Additional sixth respondent was impleaded and challenged interim orders. The court heard arguments and observed that the final decision rests with the statutory authority (Excise Commissioner/Deputy Commissioner), as no final order had been issued. It directed that any future application be considered with due process and that the interim order continue until the matter is resolved, disposing of the petition accordingly.

Provisions of Law Cited

Foreign Liquor Rules, 1953

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that shifting the FL-1 shop to building No. 1/668, owned by the sixth respondent, would place the shop within 200 meters of three temples and three schools, violating the Foreign Liquor Rules, 1953. They assert that the statutory authority has not yet conducted a proper inquiry or issued a final decision; the earlier communications do not constitute a final determination. They rely on the apex court’s decision (K. Balu’s case) to argue that finality of the decision and strict adherence to distance norms are required before granting licenses. They urge the Court to ensure compliance and to dispose the petition with a directive for a proper formal decision from the appropriate Excise authority within a specified period.

Contentions of Respondents

The respondents submit that no application for shifting has been received by the Excise authorities and, if and when received, it will be considered strictly as per the Foreign Liquor Rules, 1953 and the governing apex court decision (K. Balu). They contend that the petition is premature, and any interim orders should not substitute for a final statutory decision. The respondents note that Ext. R6(a) merely indicates that a license was not issued due to objections, not a final determination, and emphasize the need for a proper inquiry by the competent authorities before any license is granted.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
State of Tamil Nadu & Others v. K. Balu and another	2017(1) KHC 26(SC)	Mentioned Only	Cited as an apex court judgment relevant to the issue but not expressly applied, distinguished, or overruled in the present case.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 17TH DAY OF OCTOBER 2017/25TH ASWINA, 1939** **WP(C).No. 3934 of 2017 (N) ---------------------------** **PETITIONER(S):** **-------------** **1. RAJEEV VISWANATHAN, S/O. VISWANATHAN, AGED 45, KUNNUVILA VEEDU, PLAVALLA, PULLOORMUKKU, KALLAMBALAM, THIRUVANANTHAPURAM.** **2. RAHUL R.,** - **S/O. RADHAKRISHNAN, AGED 30, AMBIKALAYAM, KARAVARAM P.O., KALLAMBALAM, THIRUVANANTHAPURAM.** ## **BY ADV. SRI.LATHEESH SEBASTIAN** ## **RESPONDENT(S):** - **--------------** **1. EXCISE COMMISSIONER, THIRUVANANTHAPURAM.** **2. EXCISE INSPECTOR, ATTINGAL, THIRUVANANTHAPURAM.** **3. THE MANAGING DIRECTOR, KERALA STATE BEVERAGES CORPORATION(M&M), THIRUVANANTHAPURAM.** **4. THE MANGER, FOREIGN LIQUOR SHOP, KERALA STATE BEVERAGES CORPORATION, KALLAMBALAM, THIRUVANANTHAPURAM.** **5. KARAVARAM GRAMA PANCHAYATH, KARAVARAM P.O., THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY.** - ***ADDL. 6TH RESPONDENT IMPLEADED:** **6. R.MURALILAL,S/O RAMACHANDRAN, RESIDING AT SOWPARNIKA, THATTUPALAM, NAVAIKULAM (P.O.), VARKALA TALUK, THIRUVANANTHAPURAM DISTRICT.** - **ADDL.R6 IS IMPLEADED AS PER ORDER DATED 11.8.17 IN IA.12726/2017** **R1 & R2 BY SR. GOVERNMENT PLEADER SMT.C.S.SHEEJA R3 & R4 BY SRI.NAVEEN.T., SC ADDL R6 BY ADVS. SRI.GOPAKUMAR R.THALIYAL SRI.R.ANOOP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** ## **WP(C).No. 3934 of 2017 (N)** ## **---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1 TRUE COPY OF THE OWNERSHIP CERTIFICATE ISSUED BY THE 5TH RESPONDENT TO THE 2ND RESPONDENT ON 16.01.2017. EXHIBIT P2 TRUE COPY OF THE RESOLUTION OF THE 5TH RESPONDENT BEARING NO.VI(1) DATED 18.01.2017. EXHIBIT P3 TRUE COPY OF THE LETTER OF THE PRESIDENT OF THE 5TH RESPONDENT DATED 18.01.2017. EXHIBIT P4 TRUE COPY OF THE REPRESENTATION OF THE HEADMISTRESS AND STUDENTS OF KARAVARAM VOCATIONAL HIGHER SECONDARY SCHOOL DATED 16.01.2017. EXHIBIT P5 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE SREE AURBINDO PUBLIC SCHOOL AUTHORITIES. EXHIBIT P6 TRUE COPY OF THE REPRESENTATION OF THE 1ST PETITIONER TO THE 2ND RESPONDENT DATED 16.01.2017. EXHIBIT P6(A) TRUE COPY OF THE COMMUNICATION DATED 20.6.2017 ISSUED BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT EXHIBIT P7 TRUE COPY OF THE STATEMENT FILED BY THE 2ND RESPONDENT IN W.P.(C) NO 2623/2017. RESPONDENT(S)' EXHIBITS -----------------------** ## **NIL** **TRUE COPY** ## **EL** **P.S. TO JUDGE** ## **SHAJI P. CHALY, J.** **--------------------------------------W.P.(C). No. 3934 OF 2017 ----------------------------------------** Dated this the 17[th] day of October, 2017 ## **JUDGMENT** Petitioners are residents of Karavaram Grama Panchayat. The respondents three and four are conducting a Foreign Liquor Retail Outlet, (FL-1 Shop) at Kallambalam, Thiruvananthapuram. In the light of Apex Court judgment in **State of Tamilnadu & Others v. K. Balu and another** [2017(1) KHC 26(SC)], respondents three and four are proposing to shift the said foreign liquor outlet to the building bearing Door No. 1/668 of Karavaram Grama Panchayat belonging to the additional sixth respondent. According to the petitioners, three temples, where regular daily poojas are being conducted are situated within 200 meters of the proposed foreign liquor shop. Apart from that, three schools are also W.P.(C). No. 3934 of 2017 2 situated within the prohibited distance of 200 meters. Respondents three and four with the assistance of respondents 1 and 2 are proposing to conduct the foreign liquor shop in the building specified above by flouting all the statutory requirements. 2. The second respondent has filed a detailed counter affidavit. Among other contentions, it is stated that the application from the concerned for shifting Kallambalam FL-I shop from the existing building to building No. 1/668 is neither received by the undersigned nor by the Circle Inspector of Excise, Attingal, whose jurisdiction the above FL-1 shop is functioning and who is the authority to forward such an application initially, till date. It is also submitted that if any such application is received in future, the same shall be considered only as per Rules and also in accordance with the judgment of the Apex Court in **K.Balu's** case (supra). It is also stated that, the petitioners earlier filed W.P.(C). No. 2623/2017 to restrain respondents 3 and 4 from opening and conducting FL-1 shop in the building No. 1/668 of W.P.(C). No. 3934 of 2017 3 Karavaram Grama Panchayat in which no such application was received at that time. According to the second respondent, the writ petition is premature in nature. The additional sixth respondent got impleaded and has filed an application seeking to vacate the interim order passed by this Court on 15.02.2017, whereby it is directed that if permission is given to the fourth respondent to shift the foreign liquor outlet to building No. 1/668, shall not be given effect to without further orders from this Court. The additional sixth respondent has produced an order dated 20.06.2017, apparently issued by the Beverages Corporation to the Excise Commissioner, wherein it is requested that if any enquiry is to be conducted license may be granted for starting the shop in the property in question. Other circumstances are also pointed out. 3. Heard learned counsel for the petitioners, learned Senior Government Pleader, learned counsel appearing for the fourth and fifth respondents and learned counsel appearing for the additional sixth ## W.P.(C). No. 3934 of 2017 4 respondent, and perused the documents and the pleadings on record. 4. In my considered opinion, the issue is to be considered by the statutory authority. The grievance put forth by the petitioners is that there are objectionable institutions situated within the distance prescribed as per the Foreign Liquor Rules, 1953, which is stoutly opposed by learned counsel for the fourth and fifth respondents as well as the additional sixth respondent. But, learned counsel for the petitioners has a case that the Excise Commissioner has already taken a decision with respect to the distance from the building in question to the objectionable sites relying upon Ext.R6(a). However, on a reading of Ext. R6(a) communication issued by the third respondent, I do not find that, such a final decision was taken by any of the statutory authorities. It is only mentioned in Ext.R6(a) that the license is not issued stating that there is objectionable sites within 200 meters distance. Be that as it may, I am of the considered opinion that merely because such a statement is made that W.P.(C). No. 3934 of 2017 5 doesn't mean that an enquiry is conducted by the statutory authority and a decision is taken finally. Therefore, the statutory authority is to attain finality to the issue in question. 5. From the records produced by the petitioners, what I could gather is that petitioners have submitted Ext.P6 pointing out their grievances, however, before the second respondent the Excise Inspector. The authority who is vested with powers to take a decision is either the Deputy Commissioner of Excise of the concerned Range or Excise Commissioner, Thiruvananathapuram. If the petitioner makes any application to the first respondent, the same shall be considered by the first respondent either by himself or forwarding the said representation to the Deputy Commissioner of the jurisdiction and attain finality to the same, within six weeks from the date of receipt of a copy of this judgment, after providing sufficient opportunity of hearing to the petitioners, the fourth and fifth respondents, additional sixth respondent and any other interested persons. Till such time, the W.P.(C). No. 3934 of 2017 6 interim order passed by this Court will continue. Writ petition is disposed of accordingly. **SHAJI P. CHALY JUDGE** DCS