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2023 Supreme(Online)(KER) 5228
HIGH COURT OF KERALA
A. Muhamed Mustaque, J
SUBHASH SOMAN – Appellant
Versus
THE STATE OF KERALA – Respondent
RP 56/2020
N.RAGHURAJ, SHRI.ARJUN GOPAL P, SENIOR GOVERNMENT PLEADER, SRI.S.GOPINATHAN
Licensing for establishments must comply with statutory distance requirements as interpreted in case law, necessitating accurate and lawful measurement procedures.
Headnote:
Distance - Hotel Licensing - Kerala Excise Act - 2019 - The case involved the interpretation of distance requirements under the Kerala Excise Act as upheld in prior judgments, which influenced the decision to allow reconsideration of licensing for a hotel near a school.
Fact of the Case:
The case involved a petitioner who sought to challenge the Excise Commissioner's rejection of a license for a hotel with a bar due to its proximity to a school, basing arguments on prior court judgments regarding distance measurement.
Finding of the Court:
The court found that the Excise Commissioner must reassess the distance requirements according to the established legal norms from previous judgments, particularly the principles laid out in the case of Vijaya Kumar.
Issues: Whether the Excise Commissioner properly measured the distance required for the issuance of a bar license, in accordance with previous judicial guidelines.
Ratio Decidendi: The court reiterated that the determination of distance for licensing must follow the specific legal guidelines established in earlier judgments, thereby necessitating a reassessment by the Excise Commissioner.
Final Decision: The review petition and writ petition were allowed for reconsideration by the Excise Commissioner based on proper distance measurement criteria.
ORDER
The review petition and the writ petition are filed by the same person. The matter is related to the distance of functioning a Three Star Hotel with a bar licence. In the earlier judgment of this Court upholding the decision of the Excise Commissioner, this Court in W.P.(C) No.40388/2018 that the locational distance of Bar is less than the statutory requirement from nearby school, dismissed the writ petition. Thereafter, the petitioner approached the Excise Commissioner to remeasure the distance in the light of the Division Bench judgment of this Court inState of Kerala v. Vijaya Kumar [2009(1) KLT 578]. It was not considered, the petitioner approached this Court in W.P.(C) No.24746/2019. This Court directed the Excise Commissioner to consider the matter strictly in the light of the judgment of this Court in W.P.
(C) No.40388/2018. Thereafter, the matter was considered by the Excise Commissioner and following the directions in the judgment in W.P.(C) No.40388/2018, the request was rejected. This is subject to the challenge in W.P.(C) No.24746/2019. In view of the fact that this Court earlier directed in W.P.(C) No.24746/2019 that the consideration shall be strictly in accordance with the judgment in W.P.(C) No.40388/2018, the petitioner has been constrained to file a review petition.
2. It is to be noted that the judgment in W.P.
(C) No.40388/2018 has attained finality. The petitioner is now attempting to reopen the matter pointing out that the measurement leading to the decision of the Excise Commissioner subject to the challenge in W.P.(C) No.40388/2018 was not in accordance with the Division Bench judgment as propounded in Vijaya Kumar's case (supra). It is submitted that the direction of this Court in W.P.
(C) No.24746/2019, which shall be strictly considered in tune with the judgment in W.P.(C) No.40388/2018 would stand in open and fair conduct of the enquiry as to the measurement.
3. The learned Government Pleader opposed the prayers and submitted that A.E.O. Punalur's report clearly would show that the young mind would be affected if the bar is allowed to open near the vicinity of the school. He also highlighted the counter affidavit filed by the third respondent, the Deputy Commissioner of Excise.
4. Having considered the facts and circumstances, I am of the view that the review petition and the writ petition can be disposed of in the light of the fact that as the issue on distance being a factual matter and this Court in Vijaya Kumar's case(supra) had laid down the manner in which the distance has to be reckoned, nothing prevents the Excise Commissioner to remeasure the distance in accordance with the law laid down in Vijaya Kumar's case(Supra). Therefore, leaving open the issue related to the distance to be considered by the Excise Commissioner as above, the review petition and the writ petition are disposed of. The review petitioner is allowed to the extent to consider Ext.P6 application in the writ petition, after adverting to the judgment in Vijaya Kumar's case (supra) in accordance with law and also after adverting to Ext.P7 report of the Circle Inspector of Excise. In order to pave way for reconsideration as above, the order impugned in W.P.(C) No.2804/2020 is set aside. A fresh decision shall be taken in accordance with law after adverting to the nature of the distance as laid down in Vijaya Kumar's case (supra) and any other norms that would apply to measure the distance.
Sd/- A.MUHAMED MUSTAQUE JUDGE ln APPENDIX OF WP(C)NO.2804/2020 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE PHOTOCOPY OF THE LOCATION SKETCH PREPARED BY THE PETITIONER.
EXHIBIT P2 TRUE PHOTOCOPY OF THE APPLICATION DATED
03.08.2018.
EXHIBIT P3 TRUE PHOTOCOPY OF THE ORDER NO.EXC/4374/2018/EC7 DATED 27.10.2018.
EXHIBIT P4 TRUE PHOTOCOPY OF THE WPC NO.40388 OF
2018 WAS DISMISSED VIDE JUDGMENT DATED
11.04.2019.
EXHIBIT P5 TRUE PHOTOCOPY OF THE APPLICATION/REPRESENTATION DATED
26.06.2019 BEFORE THE 2ND RESPONDENT.
EXHIBIT P6 TRUE PHOTOCOPY OF THE REPORT BEARING NO.
