LAWS(KER)-2020-3-428

MOHAMMED P.K. Vs. STATE OF KERALA

Decided On March 05, 2020
Mohammed P.K. Appellant
V/S
STATE OF KERALA Respondents

JUDGEMENT

(1.) The petitioner is stated to be a member and office bearer of the Committee of 'Masjid Mubarak', a prominent Mosque situated in Kalpetta Town near the new bus stand. It is his case in the writ petition that there is a Madrasa attached to the mosque, where religious education is imparted to more than 100 children belonging to the Muslim community. Apparently, there is a pathway between two tile-roofed buildings, which originally belonged to one 'Soofi Haji' who had permitted the public to use the said pathway, running through his property, to access the Mosque and Madrasa. It is stated that thereafter, the property changed ownership and is now under the ownership of one Mr.Virendra Kumar ,who closed the access to the pathway by putting up gates/slabs in front of the pathway, so as to prevent the public from accessing the Mosque and Madrasa. It is the case of the petitioner that if the said pathway is reckoned for the purposes of computing the prohibited distance under Rule 13(3) of the Foreign Liquor Rules, 1953, then the hotel run by the 4th respondent has to be seen as ineligible for obtaining an FL-3 licence, since the distance between the gate of the hotel and the pathway aforementioned is less than 40mtrs. The prayer in the writ petition is for a direction to the 2nd respondent to consider the representation preferred by the petitioner and not grant any FL-3 licence to the 4 th respondent, in as much as issuing a license would amount to breaching the provisions of Rule 13(3) of the Foreign liquor Rules, 1953.

(2.) When the matter came up for admission before this Court on 29.1.2020, taking note of the averments in the writ petition as also the submission made on behalf of the writ petitioner, this Court granted an interim direction to the 1 st and 2nd respondents not to grant the FL-3 licence to the 4th respondent, pending disposal of the writ petition. The said interim order continues to be in force even today.

(3.) A counter affidavit has since been filed by the 4 th respondent wherein, materials, including photographs, have been produced to suggest that the pathway that the petitioner alleges to be in existence, is not actually a pathway that is generally used by the public and that, at any rate, the said pathway had been closed in view of its non user by the public over a period of time. It is in particular pointed out that the calculation of the prohibited distance, in terms of Foreign Liquor Rules, has to be between the gate of the