IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 WP(C).No. 23319 of 2008(A) --------------------------------------- PETITIONER(S): ---------------------- BABU JOHN, MANAGING PARTNER, SKY HOTEL CUM SHOPPING ARCADE, THIRUVALLA, REP. BY THE POWER OF ATTORNEY HOLDER, NINAN JOHN, BY ADV. MR.A.SUDHI VASUDEVAN MR.K.PUSHPANATH RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TAXES (G) DEPARTMENT, THIRUVANANTHAPURAM. 2. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM. 3. THE DEPUTY COMMISSIONER OF EXCISE, SOUTH ZONE, THIRUVANANTHAPURAM. 4. THE ASST. EXCISE COMMISSIONER, PATHANAMTHITTA. 5. CIRCLE INSPECTOR OF EXCISE, THIRUVALLA. R1 TO R5 BY GOVERNMENT PLEADER MR.V. MANU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 23319/2008-A APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE CLASSIFICATION CERTIFICATE DATED 15/11/2006 ISSUED BY REGIONAL DIRECTOR, HRACC, INDIA TOURISM, GOVERNMENT OF INDIA, CHENNAI CLASSIFYING THE HOTEL IN 3 STAF CATEGORY TO THE PETITIONER'S HOTEL. EXT.P2: COPY OF THE GUIDE LINES ISSUED BY H & R DIVISION, DEPRTMENT OF TOURISM, GOVERNMENT OF INDIA SPECIFYING THE CONDITIONS NECESSARY FOR CLASSIFYING HOTEL IN VARIOUS STAR CATEGORIES. EXT.P3: COPY OF THE APPLICATION DATED 26/03/2007 SUBMITTED TO THE 2ND RESPONDENT THROUGH THE PROPER CHANNEL. EXT.P4: COPY OF THE REPORT DATED 03/05/2007 SUBMITTED BY THE 4TH RESPONDENT TO THE 2ND RESPONDENT THROUGH THE 3RF RESPONDENT. EXT.P5: COPY OF THE PLAN SHOWING THE LOCATION OF SYRIAN CHRISTIAN SEMINARY COMPLEX, THE ROAD AND THE SKY HOTEL CUM SHOPPING ARCADE. EXT.P6: COPY OF THE REPORT DATED 20/07/2007 SUBMITTED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT. EXT.P7: COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 02/05/2008. EXT.P8: COPY OF THE JUDGMENT DATED 18/10/93 IN W.A. NO. 1220/93 OF THIS HONOURABLE COURT. EXT.P9: COPY OF THE JUDGMENT DATED 22/02/1999 IN W.A. NO. 208/1999 OF THIS HONOURABLE COURT. EXT.P10: COPY OF THE PHOTOGRAPH SHOWING THE MOVEMENTS OF STUDENTS THROUGH THE GATE OF THE SCHOOLS. EXT.P11: COPY OF THE PHOTOGRAPH SHOWING THE GATE OF CHURCH. EXT.P12: COPY OF THE PROCEEDINGS DATED 25/04/1990 OF THE 4TH RESPONDENT. EXT.P13: COPY OF THE PROCEEDINGS DATED 26/04/1990 ISSUED BY 3RD RESPONDENT. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.23319 OF 2008 ------------------------------------------- Dated this the 14th day of July, 2009 JUDGMENT 1.A seven storeyed shopping mall “Sky Hotel cum Shopping Arcade”, spread over more than 1 lakh square feet area, belongs to a partnership firm of which the petitioner is the managing partner. Going by the writ petition, the ground floor and the three floors immediately above that accommodate jewellery, textiles, outlet for different other articles, food court, beauty parlour etc. The 3rd, 4th and 5th floors accommodate a hotel by name “Voyage” which has 3 star classification. There are 32 rooms which can be let out. According to the petitioner, the existence of a bar is required for 4 star classification by the Directorate of Tourism, following recommendation of the Hotel and Restaurant Approval and Classification Committee. The application for licence to run a bar in terms of the Foreign Liquor Rules stands rejected by the Excise Commissioner, though WPC.23319/08 Page numbers recommended by the Assistant Excise Commissioner. This is under challenge. 2. In Ext.P4 recommendation of the Assistant Excise Commissioner, he found that the proposed bar will not be within any objectionable area having regard to the distance that the floors accommodating the hotel has, from any nearby educational institution. He also reported that there is cluster of institutions, educational, residential, religious etc., situated in the complex. He recommended the grant of licence. It has to be immediately recalled that in terms of Rule 13-B of the Foreign Liquor Rules, an application has to be made to the Excise Commissioner through the Assistant Excise Commissioner as the law then stood. It is stated that subsequently, there was a christening of the post of Assistant Excise Commissioner. Whatever that be, Rule 13-B requires the Assistant Excise Commissioner to ensure into all points mentioned in the Rules and submit the application to the Commissioner with his report. In the case in hand, it does not WPC.23319/08 Page numbers appear that any other report was called for by the Excise Commissioner in terms of Rule 13-B(1) from any other officer. While forwarding the report of the Assistant Excise Commissioner and the application of the petitioner to the Excise Commissioner, the Deputy Excise Commissioner stated in his letter that the distance between the main entrance of the shopping complex housing the hotel and the objectionable premises viz., schools, religious institutions etc., is less than the permissible limit. In the impugned Ext.P7 order, the Excise Commissioner has essentially culled out from the Assistant Excise Commissioner's report, only that portion which relates to the existence of the educational and religious institutions and then, had taken into consideration the views of the Deputy Excise Commissioner, however, totally ignoring the views of the Assistant Excise Commissioner, particularly in the 3rd and 4th paragraphs of Ext.P4, stating the reasons why he recommends the application for grant. In his report, the Assistant Excise Commissioner has stated that on physical verification of the total complex, the ground, first and second WPC.23319/08 Page numbers floors are seen to be used exclusively for shopping purpose and the hotel starts only from the third floor onwards. With the aforesaid statutory recommendation on record, it was not advisable for the Excise Commissioner to eschew that part of Ext.P4 report which was in favour of the petitioner. Even if that were to be rejected, the principles relatable to exercise of statutory executive power require statement of reasons for overruling the views of the Assistant Excise Commissioner. It also needs to be noticed that Ext.P6 report of the Deputy Commissioner does not touch upon the manner in which the measurement is made by the Assistant Excise Commissioner. 3. With the aforesaid in view, it needs to be taken note of, that according to the petitioner, Ext.P8 is a judgment of this Court rendered by the Division Bench, wherein, the calculation of the distance in terms of the distance rule in relation to cluster of institutions is dealt with. Learned counsel for the petitioner stated that the decision of this Court in Vijayakumar v. State of Kerala [2009(1) KLT 578] is also relevant. It is stated that WPC.23319/08 Page numbers the distance ought not be measured from the main and composite entry but has to be measured from the gate of each individual institution which could be treated as objectionable. It is submitted that the Government had implemented the effect of such judgment and if that is applied, even going by the measurements from the respective gates of the different establishments in the cluster of institutions, there would be no objectionable situation. It is further pointed out on behalf of the petitioner that a bar licence being a necessary pre- condition for gaining star 4 classification going by Ext.P2 guidelines, it was unreasonable to deprive the petitioner of such status by refusing the grant of bar licence as ought for. 4. Immediately, among the different decisions relied on by the learned Government Pleader in which this Court had expressed on the modality of the application of the distance rule, he referred to the decisions in Ravindran v. George [1993(1) KLT 792], Mohan v. Moidu [1993(1) KLT 425], WPC.23319/08 Page numbers K.V.Ramakrishnan v. State [1993(2) KLJ 1033] and in Joseph v. Excise Commissioner [1988(2) KLT 913]. Having noted that the Excise Commissioner has issued the impugned order totally ignoring the findings of the Assistant Excise Commissioner on physical verification of the premises, it is appropriate that the matter is re-considered by the Excise Commissioner after providing the petitioner an opportunity of hearing, including on the question as to the applicability of the decisions afore-referred. Let this be done within a period of two months from the date of receipt of a copy of this judgment To aid such process, the impugned Ext.P7 is quashed. The writ petition is ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.18/7.