BIJU JOSEPH Vs. CHACKO

JUDGEMENT

(1.) This reference to the Full Bench is by an order dated 3rd December, 1987 by a Division Bench of this Court. The Division Bench observed that though the question raised by the appellant is covered by the decision of a Division Bench in O.P.492'4 of 1981 decided on 22nd December, 1981, a contrary view was taken by a learned single Judge of this Court in O.P. 7537 of 1986 which decision stands affirmed in W.A.317 of 1987. The Division Bench was of the opinion that there is prima facie divergence of opinion on the question as to whether R.6(2) of the General Conditions is applicable to licensees of toddy, arrack or foreign liquor retail and foreign liquor wholesale shops.

(2.) The following are the facts of the case: Appellant before us is the fourth respondent in the Writ Petition. Appellant was granted foreign liquor 3 Hotel (restaurant) licence for conducting a Bar in Hotel Prasanth at Muvattupuzha. The licence was granted by the Commissioner of Excise on payment of an annual rent of Rs. 1,50,000/-pursuant to a recommendation made by the Assistant Excise Commissioner which recommendation was agreed to by the Deputy Commissioner. Sanction for grant of licence was given by the Board of Revenue as per order dated 26-7-1985 (Ext.R4). Even thereafter licence was not issued and the appellant filed OP 7510 of 1985 in this Court. Pursuant to certain directions issued therein as per Ext.R4(e) judgment, a licence was given to the appellant and he started running the Bar in the hotel from 9-8-1985. It was at that juncture that respondents 1 and 2 (writ petitioners) filed OP 7893 of 1985 on 19-8-1985 contending that in view of Art.47 of the Constitution of India and also R.6(2) of the Kerala Abkari Shops (Disposal in Auction) Rules, 1974 (hereinafter referred to as 'the Kerala Abkari Shops Auction Rules') licence ought not to have been granted inasmuch as the Bar in question is within 400 Metres from several educational institutions including St. Augustine's Girls High School, Muvattupuzha wherein the children of the writ petitioners and other students are studying. According to the writ petitioners, appellant's hotel is within 20 feet of the above said school. It is also stated that the Government High School is located within 90 Metres from this hotel. There is also a Chapel within 35 metres from the hotel. The Writ Petitioners, therefore, sought for a declaration that the Bar is comprehended within the prohibition contained in R.6(2)(b) of the Kerala Abkari Shops Auction Rules and for a further direction to the Excise Commissioner (second respondent in the writ petition) to see that the Bar is not opened.

(3.) A counter affidavit has been filed on behalf of the Board of Revenue (Excise), the Excise Commissioner and the Assistant Excise Commissioner admitting that the distance between the hotel where the Bar is located and the educational institutions and chapel is, no doubt, below 400 Metres, but it is stated that the hotel in question has satisfied the requirements as per G.O.(Rt.) 255/82 dated 15-4-1982 for the issue of an FL 3 licence inasmuch as the hotel has ten lettable bed rooms and that the carpet area in respect of each of the room and bath room was within the prescribed limits. The hotel fell in the II Star category. It is then stated that as per the above Government Order dated 15-4-1982, there is no restriction for the issue of an FL 3 licence even though the Bar is within 400 Metres from educational institutions or places of worship. It is contended that as perR.13(3) of the Foreign Liquor Rules, no liquor is sold under the Bar licence for consumption other than in a room specially approved for that purpose and liquor cannot be removed from the licenced premises nor sold otherwise than to the residents in the hotel and to their guests or casual visitors partaking in the meals. It is, therefore, contended that FL 3 licence does not come under the purview of R.6(2)(b) of the Kerala Abkari Shops Auction Rules. The functioning of the FL 3 licence Bar does not adversely affect the religious sentiments of worshippers or the students of the educational institutions. In other words, the government supported the case of the appellant.