W.P.(C) Nos. 21245 & 25013/2012 (Public Interest Litigation) - Vasanthakumaran v. Commissioner of Excise & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH** **MONDAY, THE 26TH DAY OF NOVEMBER 2012/5TH AGRAHAYANA 1934** ## **WP(C).No. 21245 of 2012 (S)** **---------------------------** ## **PETITIONER(S):** **------------------------** **VASANTHAKUMARAN, AGED 54 YEARS, S/O.R.KUNJU PILLAI, THODIYIL PADINJATIL HOUSE, P.O.KADAPPAKKADA, KOLLAM DISTRICT.** **BY ADV. SMT.K.V.RASHMI** ## **RESPONDENT(S):** **----------------------------** **1. THE COMMISSIONER OF EXCISE,** - **EXCISE BHAVAN, THIRUVANANTHAPURAM-695 001.** **2. DEPUTY COMMISSIONER OF EXCISE, KOLLAM-691 001.** **3. JOINT EXCISE COMMISSIONER,** - **SOUTHERN ZONE, THIRUVANANTHAPURAM-695 001.** **4. THE CIRCLE INSPECTOR OF EXCISE, KOLLAM-691 001.** **5. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY** **TAXES(A), DEPARTAMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **6. M/S.MAHAVISHNU TRADERS, REG.NO.392/2011,** **HOSPITAL JUNCTION, KUNDARA, KOLLAM DISTRICT, REPRESENTED BY ITS MANAGING PARTNER, RATHEESH KUMAR.S.** **..2/-** **Kss** **..2.....** ## **WPC.NO.21245/2012 S** ## ***ADDL.R7 IMPLEADED:** **R7. LILLY KUTTY WILLIAM, W/O.MATHEW KUTTY, RESIDING AT DEEPTHI VILLA, MUNDAKKAL, KOLLAM.** - **(*ADDL.R7 IS IMPLEADED AS PER ORDER DTD. 15/11/2012 IN I.A.NO.14040/2012)** **R1 TO R5 BY ADDL.ADVOCATE GENERAL SRI.P.C.IYPE BY SR.GOVERNMENT PLEADER SRI.SUJITH MATHEW JOSE ADDL R7 BY ADV. SRI.M.B.PRAJITH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-11-2012 ALONG WITH WPC. NO.25013/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.21245/2012 S** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF THE APPLICATION SUBMITTED BY THE 6TH RESPONDENT DATED 14/03/2012 OBTAINED UNDER THE RIGHT TO INFORMATION ACT.** - **P2: COPY OF THE REPORT SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 3RD RESPONDENT DATED 22/03/2012 OBTAINED UNDER THE RIGHT TO INFORMATION ACT.** - **P3: COPY OF THE REPORT DATED 01/08/2012 SUBMITTED BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT RECEIVED UNDER THE RIGHT TO INFORMATION ACT.** - **P4: COPY OF THE SKETCH PREPARED BY THE 4TH RESPONDENT.** - **P5: COPY OF THE COMMUNICATION DTD. 21/08/2012 SENT BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT RECEIVED UNDER THE RIGHT TO INFORMATION ACT.** - **P6: COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER DTD.25/07/2012 SUBMITTED BEFORE THE 1ST RESPONDENT WITH COPY TO THE RESPONDENTS 2 TO 5.** **P6(A): TRUE TRANSLATION OF EXT.P6.** **P6(B): COPY OF THE POSTAL RECEIPTS.** - **P7: COPY OF THE OBJECTIONI DTD. 20/08/2012 SUBMITTED BEFORE THE RESPONDENTS 1 TO 3 BY HAND.** ## **RESPONDENT'S ANNEXURES:** **ANNEX.R2(A):COPY OF THE PHOTOGRAPH HAVING ITS VIEW FROM THE N.H.** **ANNEX.R2(B): COPY OF THE PHOTOGRAPH WHICH SHOWS THAT THE EARLIER ENTRANCE FROM NH HAS BEEN PERMANENTLY CLOSED BY ERECTING CONCRETE WALL.** **ANNEX.R2(C): COPY OF THE PHOTOGRAPH HAVING THE VIEW OF THE HOTEL FROM THE SIDE ROAD EMERGING FROM NH.** **ANNEX.R2(D): COPY OF THE CLOSE-UP PHOTOGRAPH OF THE GATE FIXED ON THE SOUTH WESTERN SIDE OF THE COMPOUND OF THE HOTEL.** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **PIUS C.KURIAKOSE & BABU MATHEW P.JOSEPH JJ. -----------------------W.P.(C) Nos. 21245 & 25013 OF 2012** **------------------------** Dated this the 26th day of November, 2012 ## **JUDGMENT** ## Pius C.Kuriakose,J Both these writ petitions are filed as public interest litigation against what is described as the arbitrary, unreasonable and illegal steps taken by the official respondents in W.P.(C) No.25013/2012, respondents 1 to 4 in W.P.(C) No.21245/2012 to grant FL-3/FL-11 licences to a hotel by name Royal Fort managed by the 6[th] respondent in both these writ petitions. It is submitted in both these writ petitions that the CSI Church is situated at any rate 141 meters from the Hotel of the 6[th] respondent where the 6[th] respondent is proposing to start a bar as well as a beer parlor. It is pointed out in both the writ petitions that the 5[th] respondent in W.P(C) W.P(C) Nos. 21245 & 25013/12 2 No.25013/2012 - the Circle Inspector of Excise, Kollam in his earlier report which is produced as Ext.P2 in both the writ petitions categorically found that the distance between the church and the hotel is only 141 meters. But, in a subsequent report dated 30/7/2012, it is seen reported that the distance is 212 meters on the reason that the original gate fixed in the compound wall of the hotel has now been removed and a new gate has been fixed by the 6[th] respondent on a private road from where the prohibitory distance is now calculated . The 4[th] respondent – Deputy Commissioner of Excise has asked for the explanation of the 5[th] respondent , the Circle Inspector of Excise, Kollam for the shift in the stand of the 5[th] respondent in his report dated 30/7/2012. The petitioners submit that there are several other bar hotels very near to the hotel of the 6[th] respondent and there is also a retail outlet of the Kerala State Beverages Corporation and therefore there is no local need to start a new bar in the area where the hotel of the 6[th] respondent is situated. It is also submitted that granting of the new licence to the 6[th] respondent by the Excise Authorities will go contrary to the Abkari Policy declared by the Government. W.P(C) Nos. 21245 & 25013/12 3 Granting licence to the 6[th] respondent will be totally against public interest. Raising various grounds it is prayed in W.P. (C) NO.25013/2012 as follows; i). Issue a writ of certiorari or other appropriate writ, order or direction to quash Exhibit-P8 order issued by the 5th respondent and Exhibit-P4 order issued by the 7[th] respondent. ii). Issue a writ of mandamus or other appropriate writ order or direction restraining respondents 1 to 5 from granting FL-3/FL-11 licences to the Hotel Fort Hotel at Kundara Quilon managed by the 6th respondent. Iii). Issue a writ of mandamus or other appropriate writ order or direction directing the 1[st] respondent to consider and pass appropriate orders on Exhibit.P10 representation submitted by the petitioner and to keep in abeyance all further proceedings initiated by respondents 2 to 5 to grant FL-3/FL-11 licences to the Royal Fort Hotel of the 6th respondent till a final decision is taken on Exhibit-P5 after affording to the petitioner an opportunity of being heard. 2. The prayers in W.P.(C) No.21245/2012 are the following: - i).issue a writ of Mandamus or any appropriate writ, order or direction, directing the respondent Nos. 1 to 5 not to grant Fl 3 and Fl 11 license, if it violates the distance Rule as reported by the 4th respondent in Ext.P2 report: ii).Issue a writ of Mandamus or any other appropriate writ, order or direction, directing respondents 1 to 5 to consider and pass appropriate orders on Exts.P6 and P7 objections W.P(C) Nos. 21245 & 25013/12 4 forthwith, before sanctioning FL11 and FL 3 license to the 6[th] respondent or within a time frame fixed by this Hon'ble Court. Iii). Issue a writ of Mandamus or any other appropriate writ, order or direction, directing respondents 1 to 5 to keep in abeyance the granting of FL11 and Fl3 license to the 6[th] respondent till a decision is taken by them in Exts.P6 and P7 objections. 3. The 6[th] respondent has filed a detailed counter affidavit in W.P.(C) No.25013/2012. In that writ petition Sri.Koshy Panicker, who is the owner of the building where the hotel is being conducted, has filed I.A. No.15015/2012 seeking his impleadment in that case as an additional 8th respondent. In W.P.(C) No.21245/2012 the 2[nd] respondent (the Deputy Commissioner of Excise, Kollam) has filed a detailed statement along with which Annexures R2(a) to R2(d) are produced. This statement is filed pursuant to the direction issued by this court. In that case I.A. No.14040/2012 has been filed by a lady by name Lilly Kutty William, who claims to be worshiper in CSI Church, Kundra. She prays that she may be impleaded as additional 7[th] respondent in that writ petition, so that she can support the writ petitioner. The impleadment application in W.P(C) Nos. 21245 & 25013/12 5 W.P.(C) No.25013/2012 was allowed and accordingly, additional 8[th] respondent Sri.Koshy Panicker, the landlord was impleaded as additional 8[th] respondent in that case. The impleadment application in W.P.(C) No.21245/2012 was allowed and we heard the impleadment petitioner's counsel also. 4. The contention raised by the 6[th] respondent hotel owner in W.P.(C) No.25013/2012 in his counter affidavit is that the writ petitioner is not espousing any public interest in filing the writ petition. He is actually financed by the two rival licences conducting bar attached hotels very near to the hotel of the 6[th] respondent. Modern Hotel situated near to the hotel of the 6th respondent has no star classification. The said hotel is conducted as a retail liquor shop and another similar hotel conducting another bar hotel are behind the petitioner. The petitioner has filed petitions before the local authorities and also before the Ministry of Tourism against the numbering of the hotel and classification of the hotel respectively. The rival hotel owners are filing anonymous petitions before all the authorities and their only intention is to deny license to the 6[th] respondent. W.P(C) Nos. 21245 & 25013/12 6 Reliance is placed on the various decisions of the Supreme Court including decision in Kushum Lata v Union of India & others (2006)6 SCC 180) for contending that the writ petition is not maintainable as it is not genuine public interest which is being espoused. It is pointed out that the petitioner has no grievance about 700 other bar hotels which are functioning in the State. It is then submitted that the writ petition is premature/infructuous and amounts the violation of the directions of the Hon'ble Supreme court in SLP (C) No.27170/2012. It is pointed out that when the application of the 6[th] respondent for issuance of FL-3 license was pending, sub rule 3E was introduced with effect from 27/3/2012 disqualifying the hotels from getting bar license, if the hotel is located within three k.m. of another bar in the Panchayat areas and 1 k.m. From another bar in Municipal areas. Writ petitions were filed by the 6[th] respondent and similarly placed parties challenging the validity of the order. W.P.(C) No.8840/2012 was filed by the 6[th] respondent. A Division Bench of this court allowed all the writ petitions and struck down both the rules including sub rule 3E by the judgment which is reported in Surendra Das B. v. W.P(C) Nos. 21245 & 25013/12 7 State of Kerala & others ( 2012 (3) KHC 653 (DB) . The State filed Special Leave Petitions before the Hon'ble Supreme Court challenging the above common judgment. The Supreme Court did not grant any interim stay of operation of the above judgment. But after admitting the SLPs, the Hon'ble Supreme Court has passed a common order directing the Government to consider the application within eight weeks and issue license if the application are otherwise eligible. Ext.R6(a) is the copy of the above common interim order issued by the Supreme Court on 19/9/2012. Pursuant to that on 22/9/2012, the 6[th] respondent submitted a letter before the Secretary, Taxes (A) Department, Government of Kerala as well as before the Excise Commissioner, Kerala, producing Ext.R6(a). Ext.R6(b) is the copy of that letter. It is submitted that interim order passed by this court in the writ petition runs counter to Ext.R6(a) order issued by the Supreme Court. It is then contended that Exts.P7 and P8 in W.P.(C) No. 25013/2012 which has sought to be cancelled are clearly not maintainable. Exts.P7 and P8 are the reports submitted by the Deputy Excise Commissioner, Kollam and the Circle Inspector of Excise, Kollam for W.P(C) Nos. 21245 & 25013/12 8 consideration of the application submitted by the 6[th] respondent for a bar licence. Whether the rule introducing 200 meters with effect from 18/4/2012 is applicable to the case of the 6[th] respondent is also to be considered by the Excise Commissioner and the Joint Excise Commissioner while considering the bar license application submitted by the the respondent pursuant to the directions in Ext.R6(a) order of the Supreme Court. Any interference by this court at this juncture will not be proper. The Excise Commissioner and the Joint Excise Commissioner are the fact finding authorities. What exactly is the distance from the gate of the hotel to the gate of the church is a disputed question of fact. 5. We have heard the submissions of Sri.N.Nandakumara Menon learned senior counsel for the writ petitioner in W.P.(C) No.25013/2012 and Smt.K.V.Rashmi learned counsel for the writ petitioner in W.P.(C) NO.21245/2012. We have heard the submissions of Sri.C.C.Thomas learned senior counsel for the additional 8[th] respondent in W.P.(C) NO.25013/2012 and we have also heard the submissions of Sri. Gopinatha Menon learned counsel for the 6[th] respondent in both the writ petitions. We have W.P(C) Nos. 21245 & 25013/12 9 heard all the submissions of the learned counsel for the impleadment petitioners in the writ petitions. 6. The submission of Sri.Nandakumara Menon learned senior counsel was that CSI Church is situated within the prohibitory distance of 200 meters from the gate of the hotel. According to Mr.Menon, it was so clearly reported in Ext.P2 report submitted by the 5[th] respondent to the 4[th] respondent that the Church, which is situated on the eastern side of the Hotel, is situated 141 meters away from the main gate of the hotel. Therefore, the steps taken by the authorities to grant FL3/FL-11 licences to the hotel of the 6th respondent are violative of Rule 13(3) and 13 (11) of the Foreign Liquor Rules. It was then submitted that after Ext.P2 report was submitted by the 5[th] respondent to the 4[th] respondent, the 6[th] respondent has changed the lie of the property by changing the location of the existing main gate of the Hotel by constructing a new gate in the 12 ½ cents of property belonging to the 6[th] respondent which was let out to the owner of the Royal Fort Hotel on rent for the purpose of parking cars. It was submitted that main gate of the Hotel was closed by the 6th respondent in order to artificially W.P(C) Nos. 21245 & 25013/12 10 increase the distance of 200 meters between the CSI Church and the Hotel to facilitate the consideration of their second application for licence. But the fact remains that the Church is situated within a distance of 120 meters from the Hotel. The new pathway has been constructed through the private property only and it is not a public pathway or road. Mr.Nandakumar would draw our attention to the judgment of this court in Joseph v. Excise Commissioner ( 1988 (2) KLT 913) in support of his arguments. 7. Per contra, the main submission of Sri.C.C.Thomas learned senior counsel was that the issue as to what exact is the distance between the hotel and the Church is an issue of fact to be decided by the statutory authorities first. The statutory authorities have been directed by the Hon'ble Supreme Court to take a decision on licence application in accordance with law. Mr. Thomas would place reliance on the judgment of this court in Surendra Das B.v. State of Kerala (2012 (3) KHC 653 (DB) . The learned counsel drew our attention to the relevant rules. 8. Smt.Rashmi in her submissions would support Mr.Nandakumara Menon, where as Gopinatha Menon the learned W.P(C) Nos. 21245 & 25013/12 11 counsel for the 6[th] respondent would strongly support the submissions of Sri.C.C.Thomas learned senior counsel. Mr.Menon highlighted that the writ petitions will have to be thrown out as they have not been instituted in a genuine public interest. 9. Having given our anxious consideration to the rival submissions addressed at the Bar, we are of the view that it is too early for this court to decide the question as to whether the proposed Bar is located within the prohibited distance from CSI Church. Whether the proposed Bar is located within the prohibited distance as per the amended rule and whether the amended rule is applicable in the present case is a matter to be decided by respondents 2 or 3 as the case may be. Some of the submissions addressed before us by Mr.Nandakumara Menon and Smt.Rashmi regarding the artificiality of the latest report submitted by the Circle Inspector of Excise were certainly attractive. Equally attractive was the submission of Gopinatha Menon regarding the locus standi of the writ petitioners who appear to have grievances only against the Bar proposed to be started by the 6[th] respondent. The argument that, Ext.R6(a) W.P(C) Nos. 21245 & 25013/12 12 order of the Hon'ble Supreme Court produced by the 6[th] respondent in W.P.(C) No.25013/2012 cannot have any application in these cases, does not appeal to us. It may be true that the writ petitioners are not parties to that order. But, the above order was passed by the Hon'ble Supreme Court in Special Leave Petitions (Civil) filed by the State of Kerala against the judgment of this court in the writ petitions filed by the 6[th] respondent and others striking down rules including Sub Rule 3E. Significantly, the Hon'ble Supreme Court did not grant stay of operation of the judgment of this court which is reported in Surendra Das B.v.State of Kerala ( cited supra). Ext.R6(a) was passed as a common interim order directing the Government to consider of all the applications for licences within eight weeks and issue license to the applicants or otherwise eligible. According to us, the only relief, which the writ petitioners can legitimately aspire for, is a right of hearing pursuant to Ext.R6(a) when hearing is conducted by the authorities regarding the licence application submitted by the 6[th] respondent. 10. The result of the above discussion therefore is as follows; W.P(C) Nos. 21245 & 25013/12 13 Both these writ petitions are disposed of with the following directions; i). Interim order issued by this court is vacated. ii). The Excise Commissioner or the Joint Excise Commissioner, whichever authority is conducting hearing pursuant to Ext.R6(a) order of the Hon'ble Supreme Court, is directed to afford opportunity of hearing to the writ petitioners also. iii). The writ petitioners are given the liberty of urging all their objections against the grant of licence to the 6[th] respondent including the objections which they have highlighted in these writ petitions in the context of distance rule. Sd/- **PIUS C.KURIAKOSE, JUDGE Sd/-** **BABU MATHEW P.JOSEPH, JUDGE.** dpk /True copy/ P.A to Judge. W.P(C) Nos. 21245 & 25013/12 14 W.P(C) Nos. 21245 & 25013/12 15 W.P(C) Nos. 21245 & 25013/12 16