BABU JOHN MANAGING PARTNER SKY HOTEL CUM SHOPPING ARCADE THIRUVALLA Vs. STATE OF KERALA REPRESENTED BY ITS SECRETARY TAXES G DEPARTMENT THIRUVANANTHAPURAM

JUDGEMENT

(1.) A commercial complex comprising of 7 floors (ground + 6) situated in Tiruvalla town has a hotel (lodging house) on the top three floors. The ground, first and second floors are occupied by jewelery shop, textile shop, computer shop etc. Many of the shops have either been sold out or leased out to others by the petitioner who constructed the complex. The petitioner put in Ext.P3 application for FL 3 licence for his bar attached restaurant in the lodging house run in the top three floors. There are 32 rooms in addition to the banquet hall, restaurant etc. as evident by Ext.P1 star classification order.

(2.) THE Assistant Excise Commissioner by Ext.P4 proceedings recommended for the grant of FL 3 licence to the petitioner. He noticed that there is a group of institutions managed by the Syrian Christian Seminary near to the commercial complex. THE group of institutions so run by the seminary include a Church, Bishop House, Lower Primary School, Higher Secondary School, Teachers' Training Institute etc. THE nearest institution is the Lower Primary School of the seminary which has of course a separate gate. THE Assistant Excise Commissioner noticed the distance between the gate of the commercial complex to the gate of the Lower Primary School as 206 metres.

(3.) THE term 'generally used by the public' stands explained in Mohan Vs. Moidu [1993 (1) KLT 425]. That can only mean a road dedicated to the public for use and not controlled by one individual. To the same effect is the decision in Ravindran Vs. George [1993 (1) KLT 792]. THE more important question is from which gate and to which gate has the distance to be measured. THE distance has obviously to be measured from the gate of the Lower Primary School which is one among the main institutions of the Syrian Christian Seminary. Similarly the gate of the hotel which is on the third floor is the terminal of the pathway/lane street/public road. I must immediately note that the building is a commercial complex and not a hotel complex. THE commercial complex has several shop rooms having different business activity. THE shop rooms belong to different persons and are occupied by several entities. THE hotel starts from the third floor from which point only can the distance be undoubtedly measured.