Writ Petition (Civil) No. 16129 of 2024, High Court of Kerala at Ernakulam

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH`** ``` WEDNESDAY, THE 7[TH] DAY OF AUGUST 2024 / 16TH SRAVANA, 1946 ``` ## **`WP(C) NO. 16129 OF 2024`** ## **`PETITIONERS:`** ``` 1DR. TOMY ANTONY,AGED 55 YEARS S/O ANTONY, PRINCIPAL, YUVAKSHETRA INSTITUTE OF MANAGEMENT STUDIES, EZHAKKAD P.O, MUNDUR, PALAKKAD, PIN - 678631 2FR. MATHEW GEORGE VAZHAYIL,AGED 55 YEARS,S/O VARKEY, DIRECTOR, YUVAKSHETRA INSTITUTE OF MANAGEMENT STUDIES UNDER YUVAKSHETRA CHARITABLE TRUST, EZHAKKAD P.O, MUNDUR, PALAKKAD, PIN - 678631 3YUVAKSHETRA CHARITABLE TRUST, AGED 58 YEARS REP. BY ITS PATRON, MAR PETER KOCHUPURAKKAL ALIAS BABY KOCHUPURAKKAL, AGED 58 YEARS, S/O MANI, NOORANI AT NOORANI BISHOPS HOUSE, PIRAYIRI AMSOM AND DESOM, PALAKKAD, PIN - 678004 ``` ``` BY ADVS. J.JULIAN XAVIER FIROZ K.ROBIN JOSE. V.V. (THENGATHARA) ROY JOSEPH ANIES MATHEW CHRISTEENA AUGUSTINE RAJU JOSEPH (SR.) ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA,REP. BY ITS SECRETARY (EXCISE), TAXES (A) DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`** - **`2 DISTRICT COLLECTOR, KENATHUPARAMBU, KUNATHURMEDU, PALAKKAD, PIN - 678013`** - **`3 THE EXCISE COMMISSIONER,COMMISSIONRATE OF EXCISE, EXCISE HEAD QUARTERS, NANDAVANAM, THIRUVANANTHAPURAM, PIN - 695033`** - **`4 THE DEPUTY EXCISE COMMISSIONER, EXCISE DIVISION OFFICE, CIVIL STATION, PALAKKAD, PIN - 678001`** - **`5 A. RADHAKRISHNAN,PROPRIETOR ARK HOTEL & CONVENTION CENTRE,REP. BY ITS MANAGING DIRECTOR, EZHAKKAD P.O, PALAKKAD, PIN - 678631`** ``` BY ADVS. ADVOCATE GENERAL OFFICE KERALA M.G.KARTHIKEYAN M.G. NIREESH MATHEW(K/973/1994) SHRI.V.MANU, SENIOR G.P.(GP-46) ``` ## **`OTHER PRESENT:`** ``` SRI.V. MANU-SR.GP, SRI. M.G. KARTHIKEYAN-R5 ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WPC No.16129 of 2024 2 ## **JUDGMENT** The present Writ Petition has been filed by the Principal of Yuvakshetra Institute of Management Studies and by the Director of the said institute. The said institute is managed and run by the Yuvakshetra Charitable Trust. The said institute is situated in Sy.No.317/2 and 411/2 at Mundur II Village in Palakkad District. It is stated that the said institute started in the year 2005 and at present the total strength of the students in the college is 2506. The said institution is affiliated to the University of Calicut and the college conducts various courses approved by the University of Calicut. It is stated in the Writ Petition that the 5[th] respondent has adjacent property to the said college. The 5[th] respondent has started ARK Hotel and Convention Centre in the year 2021. The 5[th] respondent had applied for a bar licence for his hotel. The Deputy Excise Commissioner, the 4[th] respondent conducted an inspection on the premises of the 5[th] respondent and that of the petitioners. The petitioners have filed objections to the proposed bar license to ARK Hotel and Convention Centre. The 4[th] respondent in its report WPC No.16129 of 2024 3 dated 16[th] January 2024 stated that the distance from the gate of the ARK Hotel and Convention Centre and gate of the play ground of the educational institution is 70 metres and the distance from the building of the ARK Hotel and Convention Centre and the main gate of the college is 160 metres. The petitioners have filed WP(c) No.2680/2024 before this Court challenging the report of the Deputy Commissioner in Ext.P11 and sought for declaration that the recommendation of the 4[th] respondent in Ext.P11 that there was no objectionable site within the permitted distance for granting FL-3 licence under the Foreign Liquor Rules, 1953 as illegal. 2. The said Writ Petition was disposed of by this Court vide judgment dated 30[th] January 2024. The operative part of the judgment dated 30.01.2024 would read as under: _“8. The petitioners are aggrieved by the proposal to grant FL13 (3) licence to the 6th respondent. The petitioners have filed Exts.P10, P12 and P14 representations against such move. Taking into consideration the allegations made by the petitioners and taking into consideration the fact that the licence has not been so far granted, it would be only appropriate that the 3rd respondent-Excise Commissioner considers Ext.P14 representation submitted by the petitioners in accordance with law. The writ petition is therefore disposed of directing the 3rd respondent to consider Ext.P14 representation and pass appropriate orders thereon after giving an_ WPC No.16129 of 2024 4 _opportunity of hearing to the petitioners and the 6th respondent, within a period of one month.’’_ 3. In compliance of the directions issued by this Court in its judgment dated 30.01.2024 passed in WP(c) No.2680/2024, the Excise Commissioner, Kerala has considered the objections of the petitioners regarding the grant of bar license to the ARK Hotel & Convention Centre which is a 4 star classified hotel. The Joint Excise Commissioner, Central Zone and the Deputy Excise Commissioner Palakkad further reported before the Excise Commissioner that as per the location sketch prepared by the Palakkad Excise Circle Inspector, there was another gate providing entrance to the play ground of the Yuvakshethra Institute and distance from the gate of the hotel to the play ground would be 66 metres. These two officers, i.e. Joint Excise Commissioner, Central Zone and Deputy Excise Commissioner, Palakkad have recommended the application for obtaining fresh FL-3 licence to M/s ARK Hotel & Convention Centre. The application and connected documents were duly recommended to the Government for sanction. The Excise Commissioner took WPC No.16129 of 2024 5 note of the report of the Deputy Excise Commissioner that the hotel is situated in an unobjectionable site as per the Foreign Liquor Rules. The hotel and the playground of the institute are separated by a compound wall having iron fencing on the top of the wall. There is no direct access to the hotel from the play ground. However, there is direct view to the hotel from the play ground of the institution. The petitioners and the 6[th] respondent were heard by the Excise Commissioner in compliance of the directions issued by this Court in its judgment dated 30[th] January 2024 in WPC No.2680 of 2024. After considering the reports and submissions advanced on behalf of the petitioners and the 6[th] respondent. The Excise Commissioner submitted a detailed report to the Government mentioning all the above facts including the objections of the college in granting FL-3 license to the hotel that it would give an opportunity to the students of the institution to indulge in drinking and vitiating the college atmosphere. The decision for grant of FL-3 license to the ARK Hotel and Convention Centre is pending before the Government. WPC No.16129 of 2024 6 4. Heard Adv.Sri. Julian Xavier J.Joseph learned counsel for the petitioner, Adv.Sri V.Manu learned Sr.Government Pleader and Adv.Sri M.G.Karthikeyan and Adv.Sri Nireesh Mathew, learned counsel for R5. 5. The petitioners have inter alia challenged the recommendations of Exts.P11 and P13 besides the amendment brought to the Foreign Liquor Rules, 1953 vide G.O.(P) No.126/2017/TD dated 25.10.2017 reducing the minimum prohibitory distance to 50 metres. 6. Rule 13(3) of the Foreign Liquor Rules before amendment would read as under: **13(3):** _Foreign Liquor 3 Hotel (Restaurant) License_ – License in this form may be issued by the Excise Commissioner under orders of Government, in the interest of promotion of tourism in the State, to hotels which have obtained three star, four star, five star, five star deluxe, heritage, heritage grand or heritage classic classification from the Ministry of Tourism, Government of India, where the privilege of sale of foreign liquor in such hotels have been purchased on payment of an annual rental of Rs.30,00,000 (Rupees Thirty Lakhs only). 7. The said Rule has been amended with effect from 25[th] October 2017 vide G.O. (P) No.126/2017/TD. The amendment inter alia has reduced the distance from 200 metres to 50 metres for WPC No.16129 of 2024 7 grant of licence to hotels and restaurants from any educational institution, temple, church, mosque or burial ground. 8. The amended Rule 13(3) on reproduction reads as under: **13(3):** _Foreign Liquor 3 Hotel (Restaurant) License_ – License in this form may be issued by the Excise Commissioner under orders of Government, in the interest of promotion of tourism in the State, to hotels which have obtained three star, four star, five star, five star deluxe, heritage, heritage grand or heritage classic classification from the Ministry of Tourism, Government of India, where the privilege of sale of foreign liquor in such hotels have been purchased on payment of an annual rental of Rs.30,00,000 (Rupees Thirty Lakhs only). However, no such licence shall be issued to hotels having three star classification if located within 200 (Two Hundred) metres and to hotels having four star, five star, five star deluxe and heritage classification if located within 50 (fifty) metres from any educational institution, temple, church, mosque, burial ground or scheduled caste/scheduled tribe colony. The applicant shall produce from the Abkari Workers’Welfare Fund Inspector, a Certificate to the effect that he has remitted before the date of application for the license, the arrears of contributions if any payable up to the 31[st] day of December of the preceding year. The licensee shall purchase his supplies of Foreign Liquor only from such FL-9 Licensees in the State as may be permitted by the Excise Commissioner: Provided that where the Commissioner is satisfied that the conditions specified in this sub rule are not capable of being imposed on the restaurants situated in airports, railway stations and such other places, he may, with the previous sanction of Government, relax any of the said conditions or impose any new conditions.” ## 9. What should be the distance of a restaurant, hotel and WPC No.16129 of 2024 8 bar from an educational institution, temple, church, mosque or burial ground is a Government policy decision. The Government has taken a conscious decision to reduce the distance from 200 metres to 50 metres. This rejection of the distance from 200 metres to 50 metres does not violate the fundamental rights of a citizen, nor it can be said that the rules are in violation of any provision of the Abkari Act. It cannot also be said that the rule prescribing 50 metres distance from an educational institution, temple, church, mosque or burial ground to hotel, restaurant or bar to get bar license is arbitrary. In view thereof, I do not find the challenge to the rule is sustainable and therefore, the challenge to the rule 13(3) is repelled and rules are held to be _intra vires_ the provisions of the Abkari Act. 10. A Full Bench of this Court in the case of _**Biju Joseph**_ v _**Chacko**_ (1992 KHC 354) has considered the unamended Rule 13(3) and 13A. The Government shall consider the provisions of Rule 13(3) and 13A of the Foreign Liquor Rules while taking decision on the recommendation Exts.P11 and P13 for grant of bar license to the ARK Hotel and Convention Centre. This Court in its judgment WPC No.16129 of 2024 9 in _Biju Joseph_ (supra) has held that while granting FL-3 license the specific factors mentioned in Rule 13A and clause 22 of the conditions of FL3 license, viz. whether the location of the shop is objectionable from the point of view of “public interest or expediency” which are the principles prescribed as the guiding principles in the matter of grant of an FL-3 license to bars, hotel or restaurants. Thus, the Government should take into consideration of the aforesaid principles while considering the application of the petitioners for grant of license in view of the recommendations in Exts.P11 and P13. The Writ Petition stands finally disposed of with a direction to take decision on the recommendation of the Excise Commissioner expeditiously. ## **sd/- DINESH KUMAR SINGH, JUDGE** ## css/ WPC No.16129 of 2024 10 ## **`APPENDIX OF WP(C) 16129/2024`** ## **`PETITIONER EXHIBITS`** |**`Exhibit P1`**||**`TRUE COPY OF THE TRUST DEED DATED 26.03.2003`**| |---|---|---| |||**`EXECUTED BY ITS PATRON`**| |**`Exhibit P2`**||**`TRUE COPY OF THE SUPPLEMENTARY DEED OF TRUST`**| |||**`EXECUTED ON 23.11.2020`**| |**`Exhibit P3`**||**`TRUE COPY OF THE LAND TAX RECEIPT OF THE`**| |||**`PROPERTY COMPRISED IN SY.NO.317/2 AND 411/2`**| |||**`DATED 23.06.2023 ISSUED BY THE VILLAGE`**| |||**`OFFICER, MUNDUR II VILLAGE`**| |**`Exhibit P3`**|**`(a)`**|**`TRUE COPY OF THE LAND TAX RECEIPT DATED`**| |||**`23.06.2023 ISSUED BY THE VILLAGE OFFICER,`**| |||**`MUNDUR II VILLAGE, RELATED WITH PROPERTY IN`**| |||**`SY.NO.411/14 AND 411/16`**| |**`Exhibit P3`**|**`(b)`**|**`TRUE COPY OF THE TAX RECEIPT DATED 23.06.2023`**| |||**`RELATED WITH PROPERTY IN SY.NO.315/4, 317/4,`**| |||**`317/11, 317/7 AND 317/6 ISSUED BY THE VILLAGE`**| |||**`OFFICER, MUNDUR II VILLAGE`**| |**`Exhibit P3`**|**`(c)`**|**`TRUE COPY OF THE LAND TAX RECEIPT DATED`**| |||**`23.06.2023 WITH RESPECT TO PROPERTY IN`**| |||**`SY.NO.315/4 AND 317/4`**| |**`Exhibit P4`**||**`TRUE COPY OF THE LATEST PROVISIONAL`**| |||**`AFFILIATION U.O. NO.6183/2023/ADMN. DATED`**| |||**`04/2023 TO THE PROGRAMS OFFERED BY YIMS (UN-`**| |||**`AIDED), MUNDUR, PALAKKAD FOR THE ACADEMIC`**| |||**`YEAR 2023-24 ISSUED BY THE REGISTRAR,`**| |||**`UNIVERSITY OF CALICUT`**| |**`Exhibit P5`**||**`TRUE COPY OF THE CERTIFICATE DATED 18.10.2022`**| |||**`ISSUED BY THE DIRECTOR, NATIONAL ASSESSMENT`**| |||**`AND ACCREDITATION COUNCIL TO YIMS`**| |**`Exhibit P6`**||**`PHOTO OF THE HOTEL AND THE YUVAKSHETRA`**| |||**`COLLEGE (NEW BUILDING) SITUATED ON THE`**| |||**`SOUTHERN SIDE OF THE PALAKKAD – KONGAD`**| |||**`ROAD`**| |**`Exhibit P7`**||**`PHOTOS OF THE BOUNDARY WALL BETWEEN THE`**| |||**`PROPERTIES OF THE PETITIONERS’ AND THAT`**| |||**`OF THE 6TH RESPONDENT`**| WPC No.16129 of 2024 11 |**`Exhibit P8`**|**`TRUE COPY OF THE PETITION DATED 06.01.2024`**| |---|---| ||**`SUBMITTED BY THE 1ST PETITIONER BEFORE THE`**| ||**`4TH RESPONDENT`**| |**`Exhibit P9`**|**`TRUE COPY OF THE PETITION DATED 06.01.2024`**| ||**`SUBMITTED BEFORE SRI. MAHIPAL YADAV, IPS,`**| ||**`EXCISE COMMISSIONER, GOVERNMENT OF KERALA`**| |**`Exhibit P10`**|**`TRUE COPY OF THE PETITION DATED 11.01.2024`**| ||**`FILED BY THE PRESIDENT OF PTA, YIMS`**| |**`Exhibit P11`**|**`TRUE COPY OF THE REPORT NO.P6-9991/23 DATED`**| ||**`16.01.2024 OF THE 4TH RESPONDENT`**| |**`Exhibit P12`**|**`TRUE COPY OF THE JUDGMENT DATED 30.01.2024 IN`**| ||**`W.P (C) NO.2680/2024`**| |**`Exhibit P13`**|**`TRUE COPY OF THE ORDER NO. EXC/172/2024-XC6`**| ||**`DATED 21.03.2024 ISSUED BY THE 3RD RESPONDENT`**|