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2023 Supreme(Online)(KER) 31930
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
WEDNESDAY, THE 11TH DAY OF JANUARY 2023 / 21ST POUSHA, 1944
RP NO. 56 OF 2020
AGAINST THE JUDGMENT IN WP(C)NO.24746/2019 DATED
14.10.2019
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REVIEW PETITIONER/PETITIONER IN W.P.(C):
SUBHASH SOMAN, AGED 38 YEARS,
MANAGING DIRECTOR, ROHINI HILLS,
KUNNIKODE, KOLLAM.
BY ADVS.
N.RAGHURAJ
SHRI.ARJUN GOPAL P.
RESPONDENT/S:
1
THE STATE OF KERALA, REPRESENTED
BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT,
DEPARTMENT OF TAXES, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2
THE COMMISSIONER OF EXCISE,
EXCISE COMMISSIONERATE, NANDAVANAM,
THIRUVANANTHAPURAM-695 003.
3
THE DEPUTY COMMISSIONER OF EXCISE,
OFFICE OF THE DEPUTY COMMISSIONER OF EXCISE,
KOLLAM-691 001.
BY SENIOR GOVERNMENT PLEADER, SRI.S.GOPINATHAN
THIS REVIEW PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
11.01.2023, ALONG WITH W.P.(C) NO.2804/2020, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
WEDNESDAY, THE 11TH DAY OF JANUARY 2023 / 21ST POUSHA, 1944
WP(C) NO. 2804 OF 2020
PETITIONER/S:
SUBASH SOMAN, AGED 38 YEARS,
MANAGING DIRECTOR, 'ROHINI HILLS',
KUNNIKODE, KOLLAM.
BY ADVS.
N.RAGHURAJ
SHRI.ARJUN GOPAL P.
RESPONDENT/S:
1
THE STATE OF KERALA,
REPRESENTED BY THE PRINCIPAL SECRETARY
TO THE GOVERNMENT, DEPARTMENT OF TAXES,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2
THE COMMISSIONER OF EXCISE,
EXCISE COMMISSIONERATE, NANDAVANAM,
THIRUVANANTHAPURAM-695 003.
3
THE DEPUTY COMMISSIONER OF EXCISE,
OFFICE OF THE DEPUTY COMMISSIONER OF EXCISE,
KOLLAM-691 001.
BY SENIOR GOVERNMENT PLEADER, SRI.S.GOPINATHAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
11.01.2023, ALONG WITH R.P.NO.56/2020, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
The Excise Commissioner must measure the distance between a bar and a school in accordance with the law laid down in Vijaya Kumar's case (supra).
Headnote:
LIQUOR LICENSE - DISTANCE FROM SCHOOL - [Vijaya Kumar's case (supra)] - The court held that the Excise Commissioner must remeasure the distance between the bar and the school in accordance with the law laid down in Vijaya Kumar's case (supra).
Fact of the Case:
The petitioner, who owns a Three Star Hotel with a bar license, challenged the Excise Commissioner's decision to deny his request to remeasure the distance between the bar and a nearby school. The petitioner argued that the original measurement was not conducted in accordance with the law laid down in Vijaya Kumar's case (supra).
Finding of the Court:
The court found that the issue of distance was a factual matter and that the Excise Commissioner had not considered the judgment in Vijaya Kumar's case (supra) when making his decision. The court also found that the petitioner had been constrained to file a review petition because the Excise Commissioner had not followed the court's directions in a previous case.
Issues: Whether the Excise Commissioner erred in not considering the judgment in Vijaya Kumar's case (supra) when making his decision.
Ratio Decidendi: The court held that the Excise Commissioner must remeasure the distance between the bar and the school in accordance with the law laid down in Vijaya Kumar's case (supra).
Final Decision: The court disposed of the review petition and the writ petition and allowed the petitioner to file a fresh application for reconsideration of the distance measurement.
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 in State 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.
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
