IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 22ND DECEMBER 2009 / 1ST POUSHA 1931 WP(C).No. 29594 of 2009(T) ---------------------------------------- PETITIONER(S): ------------------------ A.M.K.NOUFAL, S/O. MOHAMMED KASIM, PRESIDENT, KARAMANA MUSLIM JUMA-ATH, KARAMANA, THIRUVANANTHAPURAM-2. BY ADV. MR.A.AHZAR RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES(A)DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE EXCISE COMMISSIONER, GOVT. OF KERALA, THIRUVANANTHAPURAM. 3. THE DEPUTY COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. 4. P.SURENDRAN @ YAMAHA/SURENDRAN, S/O. PARAMESWARAN, PROPRIETOR, HOTEL SABARI PARK, TC-XVII/1744, POOJAPPURA P.O., THIRUVANANTHAPURAM. 5. M.SHAJAHAN, S/O. LATE MOHAMMED ISMAIL, CL/1738, RIVER VILAS HOUSE, MUDAVANMUGHAL, POOJAPPURA, THIRUVANANTHAPURAM. R1 TO R3 BY GOVERNMENT PLEADER MR. V.MANU R4 BY ADV. MR.MILLU DANDAPANI R5 BY MR.C.C.THOMAS, SENIOR ADVOCATE, BY ADV.MR.M.G.KARTHIKEYAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/12/2009 ALONG WITH WPC NO. 27007 OF 2009 AND WPC NO. 27360 OF 2009, THE COURT ON 22/12/2009 DELIVERED THE FOLLOWING: Kss WPC.NO.29594/2009 T APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF ORDER NO.XC 7 - 6390/08 DTD. 07/09/2009 OF THE SECOND RESPONDENT. P2: COPY OF DOCUMENT NO.568/1988. P3: COPY OF THE DOCUMENT NO.287/98. P4: COPY OF THE GIFT DEED NO.1436/2005. P5: COPY OF THE LETTER BY VILLAGE OFFICER, THIRUMALA. P6: COPY OF THE RELEVANT PAGES ON THE ANNUAL REPORT 2008-2009. P7: RECEIPT ISSUED BY TRIVANDRUM CORPORATION DTD. 8/01/09. P8: NOTICE FROM WAKF BOARD DTD. 25/08/09. P9: COPY OF THE TAX RECEIPT WITH REGARD TO MADRASSA. P10: COPY OF THE TAX RECEIPT WITH REGARD TO THYCAVU NISKARAPALLI. RESPONDENT'S EXHIBITS: R4(1): COPY OF OWNERSHIP CERTIFICATE NO.39693 DTD. 6/08/1989 ISSUED BY THIRUVANANTHAPURAM CORPORATION TO SHRI.G.MOHANAN NAIR VIDE P14/41396/09. R4(2): COPY OF INTIMATION DTD. 2/06/2009 ISSUED BY THE REVENUE OFFICER, THIRUVANANTHAPURAM CORPORATION TO THE 4TH RESPONDENT VIDE NO.R14/25695/09. R4(3): COPY OF LETTER NO.736/2008 DTD. 9/05/2008 OF THE VILLAGE OFFICER, THIRUMALA ISSUED TO THE EXCISE CIRCLE INSPECTOR, THIRUVANANTHAPURAM. R4(4): COPY OF INTIMATION DTD. 11/08/2008 ISSUED BY THIRUVANANTHAPURAM CORPORATION VIDE NO.R14/47303/08. R4(5):`COPY OF PROPERTY TAX ASSESSMENT LIST RELATING TO 3 ROOM OALA SHED. Kss ..2/- ...2..... WPC.NO.29594/2009 I R4(6): COPY OF INTIMATION RECEIVED BY THE 4TH RESPONDENT FROM THIRUVANANTHAPURAM CORPORATION VIDE NO.E8/25694/09 DTD. 21/08/2009. R4(6)(A):COPY OF INTIMATION ISSUED BY THIRUVANANTHAPURAM CORPORATION TO THE ASSISTANT COMMISSIONER OF POLICE, THIRUVANANTHAPURAM VIDE NO.T.P.8/46271/08 DTD. 25/07/2008. R4(6)(B): COPY OF MEMO NO.TP DTD. 21/07/2008 ISSUED BY THE TOWN PLANNING OFFICER, THIRUVANANTHAPURAM CORPORATION TO THE SECRETARY, KARAMANA MOSQUE. R4(6)(C):COPY OF PROCEEDINGS NO.T.P.8/46271/08 DTD. 25/07/2008 ISSUED BY THE SECRETARY, THIRUVANANTHAPURAM CORPORATION. R4(7): COPY OF MANUAL OF GUIDELINES TO PREVENT AND CONTROL COMMUNAL DISTURBANCES AND TO PROMOTE COMMUNAL HARMONY, 2005. R4(8): COPY OF CERTIFICATE NO.5309/2009 DTD. 19/08/2009 ISSUED BY THE VILLAGE OFFICER, THIRUMALA. R4(9): COPY OF INTIMATION NO.5310/2009 DTD. 19/08/2009 ISSUED BY THE VILLAGE OFFICER, THIRUMALA. R4(10): COPY OF LETTER NO.XA1.7200/86/L.DIS. DTD. 3/04/1986 ISSUED BY THE SECRETARY TO GOVERNMENT (EXCISE), THIRUVANANTHAPURAM TO ALL EXCISE AND CIRCLE INSPECTORS. /TRUE COPY/ P.A.TO JUDGE Kss THOTTATHIL B. RADHAKRISHNAN, J ........................................... WP(C).NOs.27007, 27360 & 29594 OF 2009 ............................................ DATED THIS THE 22nd DAY OF DECEMBER, 2009 JUDGMENT “C R” The petitioner,in the first among the captioned matters, filed an application for FL-3 license in terms of the Foreign Liquor Rules. The Circle Inspector of Excise reported to the Assistant Excise Commissioner that the site is an unobjectionable one, though there is a thycavu(niskarapally), which is not a place where Juma prayers are being offered. Accordingly, the Assistant Commissioner forwarded the application with the recommendation that the licence could be granted as applied for. However, the Deputy Commissioner of Excise reported to the Joint Commissioner that though not mentioned in the Wpc 27007/09 & conn.cases 2 petition by the President of the Karamana Juma- Ath, a hostel housing the students of the Ayurveda College is at a distance of 140 metres from the proposed site for the Bar and the distance from the Hotel to the main gate of the Panchakarma Hospital is 230 metres and that the main gate of the Panchakarma Hospital is generally used by the public. The Joint Commissioner thereafter personally inspected the proposed site and noted that though the distance of the proposed Bar from the Poojapura Ayurveda Research Institute is 230 metres, and the distance from the gate on the eastern side of the compound, which is for entry to the hostel is only 140 metres. It was reported that the so called thycavu is in a land which stands in the name of one Mohanan Nair and therefore there is no material to hold that it is a public place. With the aforesaid materials, the Commissioner of Excise issued the order Wpc 27007/09 & conn.cases 3 impugned in these writ petitions on 7.9.2009 holding that the applicant is ineligible for FL-3 license in the site in question which is within the prohibited distance of 200 metres from an educational institution, viz Ayurveda College Hostel in Poojappura. The Commissioner held that the Niskarappally at Poojappura is not an objectionable structure for the purpose of grant of FL-3 license to the applicants. Hence these writ petitions. 2. Though faintly, it was suggested by the learned counsel for the petitioner in WP(C) 27360 of 2009 at the time of final hearing that the impugned order is revisable. If that argument is to be accepted, then all these writ petitions may have to go. But, the parties have addressed arguments even on merits and a Commissioner's report is also on record touching the controversy between the parties. Wpc 27007/09 & conn.cases 4 3. The petitioner in WP(C)27007 of 2009, who hereinafter is referred to as the `applicant', contends that the findings in the impugned order that the Ayurveda College Hostel is an educational institution and is within the prohibited distance of 200 metres from his hotel is unsustainable in law and on facts. On the basis of his pleadings, it is argued that the Government Ayurveda College is not situated anywhere near Poojappura and the Panchakarma Ayurveda Hospital and Research Centre in Poojappura are situated in about 25 acres and the distance between its main gate and the applicant's hostel is 230 metres. It is contended that though there are four gates for the said hotel compound, the gate to be taken note of is the main gate, which is generally used by the general public. In support of the applicant's contentions, his learned senior Wpc 27007/09 & conn.cases 5 counsel argued that the decision of this court in State of Kerala V.Sukumaran(1988(2)KLT 261) laying down that the hostel is part of an educational institution, has no application because of the indisputable fact that the educational institution viz, Government Ayurveda College, Thiruvananthapuram, is situated far away from Poojappura and the mere facility for the students to stay, does not make the so called hostel at Poojappura, part of the educational institution - The Government Ayurveda College. To drive home this point, the learned counsel relied on the decision of this court in Josegiri Hospital V. Government of Kerala(2008(3)KLT 627) wherein it was held that dormitory, boarding house and hostel of students do not form part of the integral, immediate and proximate activities of education of students. It is argued that in terms of Rule 13(3) of the Foreign Liquor Wpc 27007/09 & conn.cases 6 Rules, the application for license has to be submitted to the Assistant Commissioner and it is that officer who is duty bound to look into the factual aspects and report the relevant matters for consideration of the Commissioner and in that statutory process, the intermediary Abkari Officers including Deputy Commissioner and the Joint Commissioner have no say. 4. The learned counsel appearing for the objectors, the petitioners in WP(C)27360 of 2009 and WP(C)29594 of 2009, argued that thycavu is a place where muslims offer prayers and that this issue is covered by the judgments of this court - Thilakan V. Commissioner of Excise(2008(4) KLT 542)affirmed in (2009(3) KLT 229). It was thus contended that the findings in the impugned order that thycavu in the locality is not an objectionable structure in relation to the site in question is Wpc 27007/09 & conn.cases 7 unreasonable and liable to be interfered with. 5. The learned Government Pleader argued that the impugned order does not warrant interference and contains findings of facts which have not been pleaded or proved to be vitiated by illegality, irrationality or procedural impropriety. The decision of this court in Tiroorangadi Muslim Orphanage committee V. Government of Kerala and another (2007(2) KHC 822)rendered referring to Council of Civil Service Unions V. Minister for Civil Service(1985 AC 374) was referred to. 6. Before proceeding further, it needs to be noted that one of the objectors, viz the petitioner in WP(C)27360 of 2009 has filed O.S.No.933 of 2008 before the Munsiff's Court, Thiruvananthapuram seeking perpetual injunction Wpc 27007/09 & conn.cases 8 against the applicant from vending liquor in the hotel. 7. First, I shall deal with the contentions of the objectors in relation to the finding to the extent that the so called thycavu is no objection for granting the license in question. The materials on record before the Commissioner tend to suggest that the building, which is shown as a thycavu stands in the name of one Mohanan Nair. With the materials and additional materials being placed before this court, the petitioner in WP(C)29594 of 2009, one of the objectors, essentially, tries to demonstrate that the title to the said property vests in a Jama-Ath or a Trust and the Commissioner ought not to have decided otherwise. That issue is also the subject matter of the suit noted above. Leaving aside that the present fact situation appears to be that even if there was Wpc 27007/09 & conn.cases 9 transfer of title, the revenue records and the Corporation assessment records are yet to be appropriately modified. With all this, is the contention of the applicant that the documents shown by the objectors relate to yet another parcel. These disputed questions of fact are not to be gone into in these writ petitions. They cannot be resolved on the basis of affidavits. Not only that, the resolution of that dispute, in this case, will not by itself, terminate this litigation in favour of the objectors. On the basis of the materials then available on record, the Commissioner cannot be treated to have acted illegally, irrationally, improperly or irregularly in arriving at the decision that so called thycavu is not a structure, which could be treated as within the objectionable distance from the site in relation to which the license is sought for. The findings in that regard are neither Wpc 27007/09 & conn.cases 10 perverse nor totally unavailable on records that were available before the Commissioner. Those findings do not therefore, warrant interference under Article 226 of the Constitution of India. 8. In so far as the question relating to the educational institution is concerned, it needs to be noted that the decision in Josegiri (supra)was rendered by this court on the question whether dormitory, boarding house and hostel of students form integral, immediate and proximate activities to education, to fall within the expression,`educational purpose' as enjoined by Section 3(1)(b) of the Kerala Building Tax Act,1975. Firstly, that is a fiscal legislation. More importantly, the question that was considered was as to exemption from a fiscal license. Interpretations placed on fiscal legislations, Wpc 27007/09 & conn.cases 11 particularly exemptions therefrom, cannot be imported into the domain of abkari laws and interpretation thereof. 9. The Division Bench in Sukumaran(supra) held that the purpose of keeping the student community away from the vicinity of the liquor vending premises is a matter of prime concern. This principle has been adopted by the Division Bench in State of Kerala V. Vijayakumar(2009(1) KLT 578). That decision was unsuccessfully challenged by the State before the Apex Court. In Sukumaran(supra),the Bench held that the object of the rule prescribing the prohibited distance is to ensure that the student community is not exposed to the vice of consumption of liquor. That consumption of liquor is constitutionally recognized as a vice is clear from the fact that it is one of the Directive Principles contained in Article 47 of Wpc 27007/09 & conn.cases 12 Part IV of the Constitution. The State is required to strive to reach this constitutional goal and not function in a reverse direction. The Bench went on to state that even otherwise, there would be no hesitation to take the view that hostel attached to educational institution being an integral part of education must be reckoned as part and parcel of the educational institution, and that is a reasonable interpretation, having regard to the object of the rule under consideration, which obviously is that the student community shall not be exposed to the vice of consumption of liquor. Applying that principle, it does not matter even if the situs of the hostel which is the house of residence for students is away from the place where education is imparted, that is the College. It would be incongruous to the requirement of insulating an educational institution, if it is to be held that there Wpc 27007/09 & conn.cases 13 could be a liquor vending point near a hostel which is away from the College, though the students to whom instructions are imparted in the College, stay in the hostel in question. The nexus between the hostel and the College where instructions are imparted, is not to be measured by the distance to be traversed by the student, from the college to the hostel. The proximity between the hostel and the college is to be understood with reference to the purpose for which a hostel is provided in relation to a college. The hostel is where the student lives what is expected of an orderly life of a student, in connection with his undergoing the course of study imbibing the instructions that are imparted in the college. Whatever be the physical distance between the building which houses the college and the building which houses the hostel, the content of the activities of the hostel is part of the sublime Wpc 27007/09 & conn.cases 14 activities of the college, which is nothing but imparting instructions as part of education. Therefore, it cannot but be held that a hostel is an integral part of the educational institution even if it is away from the college building in the mundane materialistic sense. This is only the manner in which the concept of educational institution could be understood in relation to a college and its hostel, for the purpose of the prohibitions contained in the Foreign Liquor Rules. 10. Turning to the facts of the case in this regard, the Commissioner has found in the impugned order that the report of the Joint Commissioner shows that there is a men's hostel within the Panchakarma Ayurveda Medical College Complex. The students of the Government Ayurveda Medical College Hostel, Thiruvananthapuram stay in that hostel. Though Wpc 27007/09 & conn.cases 15 the entire land housing the Panchakarma Ayurveda Medical College is about 25 acres, the hostel is at one extreme corner, “having separate fencing and gate on the eastern side opening to the tarred public road in front of it”. The Commissioner also found that the “hospital compound and the remaining part of the hospital complex are connected by a wicket gate which of course is not motorable”. Annexure C1 sketch produced by the Advocate Commissioner, along with his report dated 6.10.2009 filed in WP(C)27007 of 2009 shows that the Poojappura-Thirumala road branches off towards Mudavanmughal and the proposed site (Hotel Sabari Park) is aside that road. The main gate of the hotel opens on to the Poojappura-Mudavanmughal road. Kesavan Nair road branches off from that road and gate G5 in that road is shown as the gate to the hostel building. In his additional report dated Wpc 27007/09 & conn.cases 16 20.10.2009, following subsequent inspection in terms of the order of this court, the Advocate Commissioner has stated, in paragraph 5 thereof, that the hostel faces east and there is a board in the east west direction, fixed in Kesavan Nair road outside the gate on the southern side. The undisputed Ext.R4(a) photographs clearly show the gate, which is G5 in the aforesaid Annexure C1 sketch. Those photographs vividly demonstrate that a separate gate is provided for the hostel and that the hostel is meant for the students of the Government Ayurveda College. From that gate, the distance to the applicant's hostel site is 177 metres as found by the Advocate Commissioner. The findings on facts, in that regard, in the impugned order therefore remains unassailable. 11. For the aforesaid reasons, there is no Wpc 27007/09 & conn.cases 17 ground to interfere with the impugned order on this issue also. In the result, these writ petitions fail. They are accordingly dismissed. No costs. THOTTATHIL B RADHAKRISHNAN, JUDGE lgk/18/12