P SURENDRAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner, in the first among the captioned matters, filed an application for FL 3 licence in terms of the Foreign Liquor Rules. The Circle Inspector of Excise reported to the Assistant Excise Commissioner that the site is an unobjectionable one, though there is a thycavu (niskarapally), which is not a place where Juma prayers are being offered. Accordingly, the Assistant Commissioner forwarded the application with the recommendation that the licence could be granted as applied for. However, the Deputy Commissioner of Excise reported to the Joint Commissioner that though not mentioned in the petition by the President of the Karamana Juma - Ath, a hostel housing the students of the Ayurveda College is at a distance of 140 metres from the proposed site for the Bar and the distance from the Hotel to the main gate of the Panchakarma Hospital is 230 metres and that the main gate of the Panchakarma Hospital is generally used by the public. The Joint Commissioner thereafter personally inspected the proposed site and noted that though the distance of the proposed Bar from the Poojapura Ayurveda Research Institute is 230 metres, and the distance from the gate on the eastern side of the compound, which is for entry to the hostel is only 140 metres. It was reported that the so called thycavu is in a land which stands in the name of one Mohanan Nair and therefore there is no material to hold that it is a public place. With the aforesaid materials, the Commissioner of Excise issued the order impugned in these writ petitions on 07/09/2009 holding that the applicant is ineligible for FL 3 licence in the site in question which is within the prohibited distance of 200 metres from an educational institution, viz. Ayurveda College Hostel in Poojappura. The Commissioner held that the Niskarappally at Poojappura is not an objectionable structure for the purpose of grant of FL 3 licence to the applicants. Hence these writ petitions.

(2.) Though faintly, it was suggested by the learned counsel for the petitioner in WP (C) 27360 of 2009 at the time of final hearing that the impugned order is revisable. If that argument is to be accepted, then all these writ petitions may have to go. But, the parties have addressed arguments even on merits and a Commissioner's report is also on record touching the controversy between the parties.

(3.) The petitioner in WP (C) 27007 of 2009, who hereinafter is referred to as the 'applicant', contends that the findings in the impugned order that the Ayurveda College Hostel is an educational institution and is within the prohibited distance of 200 metres from his hotel is unsustainable in law and on facts. On the basis of his pleadings, it is argued that the Government Ayurveda College is not situated anywhere near Poojappura and the Panchakarma Ayurveda Hospital and Research Centre in Poojappura are situated in about 25 acres and the distance between its main gate and the applicant's hostel is 230 metres. It is contended that though there are four gates for the said hotel compound, the gate to be taken note of is the main gate, which is generally used by the general public. In support of the applicant's contentions, his learned senior counsel argued that the decision of this Court in State of Kerala v. Sukumaran, 1988 KHC 427 : 1988 (2) KLT 261 laying down that the hostel is part of an educational institution, has no application because of the indisputable fact that the educational institution viz., Government Ayurveda College, Thiruvananthapuram, is situated far away from Poojappura and the mere facility for the students to stay, does not make the so called hostel at Poojappura, part of the educational institution, the Government Ayurveda College. To drive home this point, the learned counsel relied on the decision of this Court in Josegiri Hospital v. Government of Kerala, 2008 (3) KHC 612 : 2008 (3) KLT 627 : 2008 (2) KLJ 951 : ILR 2008 (3) Ker. 381 : AIR 2008 Ker. 209 wherein it was held that dormitory, boarding house and hostel of students do not form part of the integral, immediate and proximate activities of education of students. It is argued that in terms of R.13(3) of the Foreign Liquor Rules, the application for licence has to be submitted to the Assistant Commissioner and it is that officer who is duty bound to look into the factual aspects and report the relevant matters for consideration of the Commissioner and in that statutory process, the intermediary Abkari Officers including Deputy Commissioner and the Joint Commissioner have no say.