JOSEPH Vs. EXCISE COMMISSIONER

JUDGEMENT

(1.) The first plaintiff in O. S.274/88 is the revision petitioner. The suit is one for permanent injunction. He filed I.A. 1228/88 for temporary injunction restraining defendants 1 to 4 from conducting a bar in Sea Blue Hotel in Mannil buildings described in the schedule attached to the plaint, and 5th defendant from issuing licence for the conduct of such a bar. The Trial Court allowed the application after bearing the objections of defendants 1 to 5. The fourth defendant challenged the order by filing C.M.A. 25/88 before the District Court, Pathanamthitta. The firth defendant who is the sixth respondent herein, the Excise Commissioner challenged the order by filing C.M.A. 37/88. Both these appeals were heard and disposed of by the order under challenge.

(2.) Facts relevant and requisite to decide the issue lie in a narrow compass. Defendants 1 to 4 have recently taken on rent the first and second floors of Mannil Buildings for the conduct of a bar attached Hotel by name 'Sea Blue Hotel'. The St. Mary's L.P. School is a Government recognised school. The bar attached hotel proposed to be opened is located within the prohibited range namely, within 200 metres from the above mentioned school. The licence asked for by defendants 1 to 4 under the Foreign Liquor Rules therefore is liable to be rejected. The suit, it is said, is laid in a representative capacity, on behalf of the public of the locality.

(3.) The fourth defendant opposed the petition by filing a counter affidavit. He has averred in the affidavit that the school is not located within 200 metres from the proposed bar attached hotel, the actual distance from the school to the proposed bar is 260 metres through the shortest route, the distance requires to be taken upto the proposed place for the bar and not to a corner of the ground floor of the building. The bar is to be located in a room in the first floor and therefore the distance upto that room including the staircase and reception counter has to be taken into account. Opening of the bar in the first and second floors of the Mannil Buildings therefore will be in conformity with the provisions of the Foreign Liquor Rules. The Excise Officials after inspection were satisfied that the proposed bar could not be said to be located within 200 metres from the school. On physical verification they have found that the school is situated at a place more than 200 metres away from the proposed hotel. There is no church, mosque or temple within 200 metres from the proposed hotel. Balance of convenience therefore is in favour of the defendants. The fifth defendant, the Excise Commissioner virtually has reiterated the contentions of the fourth defendant. He says that the Assistant Commissioner made a local inspection and only on his being satisfied that the proposed bar is going to be located more than 200 metres away from the school, the Department decided to issue the licence. In fact the hotel is about 220 metres away from the school.