1. The long and short of this intra court appeal filed by the State and its officers, the respondents in the writ petition, revolves round the interpretation of Rule 13(3) of Foreign Liquor Rules which prescribes the method of calculating the prohibited distance while granting bar licence to hotels located in the vicinity of educational institutions, places of worship etc.

2. The respondent’s request (Ext P3 application) for grant of bar licence (FL-3) for a hotel housed on the top four floors of a seven storied commercial complex in Thiruvalla town was rejected by the second appellant on the ground that the site is located within the prohibited distance from a primary school in the locality.

3. This case has a chequered history. The Assistant Excise Commissioner, Pathanamthitta, who made a local inspection consequent to Ext.P3 application, found that the total distance between a lower primary school which is the nearest educational institution and the entrance to the hotel of the respondent is 206 meters. Ext.P4, is the report filed by the Assistant Commissioner. However, by Ext P4, he recommended for the sanction of FL-3 license to the hotel. In paragraphs (3) and (4) of Ext.P4 report, the Assistant Excise Commissioner has stated the reason why he recommended for sanction.

4. The Deputy Commissioner of Excise, South Zone on receipt of Ext.P4 report, took exception to it and found that, certain educational institutions come within the objectionable limits and accordingly declined recommendation as per Ext.P5 report. Based on Ext.P5 report, the second appellant rejected Ext.P3 application by Ext.P6 proceedings.

5. Ext.P6 was put to challenge by the respondent in W.P.(C) No.23319 of 2008. By Ext.P7 judgment in the aforesaid petition, Ext.P6 was quashed directing the second appellant to reconsider the matter after affording the respondent an opportunity of hearing on all matters, including the applicability of certain decisions referred to in Ext.P7 judgment. A time limit was also fixed for this exercise.

6. The reason for quashing Ext.P6 was that the second appellant had essentially culled out of the report of the Assistant Excise Commissioner (Ext.P4) only that portion which relates to the existence of the educational institution, totally ignoring the views of the Assistant Excise Commissioner in paragraphs (3) and (4) of Ext.P4 and then, accepted the views of the Deputy Excise Commissioner.

7. The second appellant, after completing the process as directed in Ext.P7 judgment, again rejected Ext.P3 by Ext.P9 proceedings. This was challenged by the appellants in W.P (C) No.32560 of 2009, which resulted in the impugned judgment.

8. By the impugned judgment, the learned Single Judge quashed Ext.P9 and directed the second appellant to reconsider the application filed by the respondent for grant of FL-3 licence. It was specified that the distance contemplated by Rule 13(3) of Foreign Liquor Rules has to be measured from the third floor of the building where the hotel of the respondent is positioned to the gate of the lower primary school reckoning the law as on the date on which Exts.P6 and P9 were issued.

9. Arguments have been heard and the impugned judgment was perused.

10. Admittedly, the nearest educational institution in the vicinity of the hotel of the respondent is a lower primary school having a gate. The hotel is positioned in the floors 3 to 6 of a commercial complex. For the purpose of Rule 13(3) of Foreign Liquor Rules the distance has to be measured from gate to gate along the shortest way used by the public. That is the reason why the learned Single Judge found that the point from which the distance has to be measured is the entrance on the third floor of the commercial complex where the hotel is housed. In other words, the distance between the entrance at the third floor of the commercial complex and the gate of the lower primary school has to be taken into account for considering Ext.P3 application.

11. It