VASANTHAKUMARAN Vs. COMMISSIONER OF EXCISE

JUDGEMENT

(1.) BOTH these writ petitions are filed as public interest litigation against what is described as the arbitrary, unreasonable and illegal steps taken by the official respondents in W.P.(C) No.25013/2012, respondents 1 to 4 in W.P.(C) No.21245/2012 to grant FL-3/FL-11 licences to a hotel by name Royal Fort managed by the 6th respondent in both these writ petitions. It is submitted in both these writ petitions that the CSI Church is situated at any rate 141 meters from the Hotel of the 6th respondent where the 6th respondent is proposing to start a bar as well as a beer parlor. It is pointed out in both the writ petitions that the 5th respondent in W.P(C) No.25013/2012 - the Circle Inspector of Excise, Kollam in his earlier report which is produced as Ext.P2 in both the writ petitions categorically found that the distance between the church and the hotel is only 141 meters. But, in a subsequent report dated 30/7/2012, it is seen reported that the distance is 212 meters on the reason that the original gate fixed in the compound wall of the hotel has now been removed and a new gate has been fixed by the 6th respondent on a private road from where the prohibitory distance is now calculated . The 4th respondent - Deputy Commissioner of Excise has asked for the explanation of the 5th respondent , the Circle Inspector of Excise, Kollam for the shift in the stand of the 5th respondent in his report dated 30/7/2012. The petitioners submit that there are several other bar hotels very near to the hotel of the 6th respondent and there is also a retail outlet of the Kerala State Beverages Corporation and therefore there is no local need to start a new bar in the area where the hotel of the 6th respondent is situated. It is also submitted that granting of the new licence to the 6th respondent by the Excise Authorities will go contrary to the Abkari Policy declared by the Government. Granting licence to the 6th respondent will be totally against public interest. Raising various grounds it is prayed in W.P. (C) NO.25013/2012 as follows;

(2.) THE prayers in W.P.(C) No.21245/2012 are the following:

(3.) THE contention raised by the 6th respondent hotel owner in W.P.(C) No.25013/2012 in his counter affidavit is that the writ petitioner is not espousing any public interest in filing the writ petition. He is actually financed by the two rival licences conducting bar attached hotels very near to the hotel of the 6th respondent. Modern Hotel situated near to the hotel of the 6th respondent has no star classification. The said hotel is conducted as a retail liquor shop and another similar hotel conducting another bar hotel are behind the petitioner. The petitioner has filed petitions before the local authorities and also before the Ministry of Tourism against the numbering of the hotel and classification of the hotel respectively. The rival hotel owners are filing anonymous petitions before all the authorities and their only intention is to deny license to the 6th respondent. Reliance is placed on the various decisions of the Supreme Court including decision in Kushum Lata v Union of India & others (2006)6 SCC 180) for contending that the writ petition is not maintainable as it is not genuine public interest which is being espoused. It is pointed out that the petitioner has no grievance about 700 other bar hotels which are functioning in the State. It is then submitted that the writ petition is premature/infructuous and amounts the violation of the directions of the Hon'ble Supreme court in SLP (C) No.27170/2012. It is pointed out that when the application of the 6th respondent for issuance of FL-3 license was pending, sub rule 3E was introduced with effect from 27/3/2012 disqualifying the hotels from getting bar license, if the hotel is located within three k.m. of another bar in the Panchayat areas and 1 k.m. From another bar in Municipal areas. Writ petitions were filed by the 6th respondent and similarly placed parties challenging the validity of the order. W.P.(C) No.8840/2012 was filed by the 6th respondent. A Division Bench of this court allowed all the writ petitions and struck down both the rules including sub rule 3E by the judgment which is reported in Surendra Das B. v. State of Kerala & others ( 2012 (3) KHC 653 (DB) . The State filed Special Leave Petitions before the Hon'ble Supreme Court challenging the above common judgment. The Supreme Court did not grant any interim stay of operation of the above judgment. But after admitting the SLPs, the Hon'ble Supreme Court has passed a common order directing the Government to consider the application within eight weeks and issue license if the application are otherwise eligible. Ext.R6(a) is the copy of the above common interim order issued by the Supreme Court on 19/9/2012. Pursuant to that on 22/9/2012, the 6th respondent submitted a letter before the Secretary, Taxes (A) Department, Government of Kerala as well as before the Excise Commissioner, Kerala, producing Ext.R6(a). Ext.R6(b) is the copy of that letter. It is submitted that interim order passed by this court in the writ petition runs counter to Ext.R6(a) order issued by the Supreme Court. It is then contended that Exts.P7 and P8 in W.P.(C) No. 25013/2012 which has sought to be cancelled are clearly not maintainable. Exts.P7 and P8 are the reports submitted by the Deputy Excise Commissioner, Kollam and the Circle Inspector of Excise, Kollam for consideration of the application submitted by the 6th respondent for a bar licence. Whether the rule introducing 200 meters with effect from 18/4/2012 is applicable to the case of the 6th respondent is also to be considered by the Excise Commissioner and the Joint Excise Commissioner while considering the bar license application submitted by the the respondent pursuant to the directions in Ext.R6(a) order of the Supreme Court. Any interference by this court at this juncture will not be proper. The Excise Commissioner and the Joint Excise Commissioner are the fact finding authorities. What exactly is the distance from the gate of the hotel to the gate of the church is a disputed question of fact.