IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 23319 of 2008(A)
1. BABU JOHN, MANAGING PARTNER, SKY HOTEL
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY ITS
... Respondent
2. THE EXCISE COMMISSIONER, COMMISSIONERATE
3. THE DEPUTY COMMISSIONER OF EXCISE,
4. THE ASST. EXCISE COMMISSIONER,
5. CIRCLE INSPECTOR OF EXCISE, THIRUVALLA.
For Petitioner :SRI.A.SUDHI VASUDEVAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :14/07/2009
O R D E R
THOTTATHIL B.RADHAKRISHNAN, J.
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W.P(C).No.23319 OF 2008
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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
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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
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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
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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
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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],
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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.