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2021 Supreme(Online)(KER) 580
HIGH COURT OF KERALA
S.MANIKUMAR, CJ, SHAJI P.CHALY, J
T.N. PRATHAPAN – Appellant
Versus
STATE OF KERALA – Respondent
WP(C)/22347/2021
KURIAN GEORGE KANNANTHANAM (SR.), ZAKEER HUSSAIN, SRI.NAVEEN.T., P.Y.SHEHEERA, SRI. GEORGE CHERIAN (SR.), ANAGHA LAKSHMY RAMAN, GREESHMA CHANDRIKA.R, S.VINOD BHAT, K.S.SANTHI LATHA, SUSAN CHERIAN, GEORGE A.CHERIAN, SRI. TEK CHAND, SRI. K. JANARDHANA SHENOY
Liquor outlets can legally operate in municipal areas despite proximity to national highways if proper licenses are secured, as clarified by the apex court.
Headnote:
Public Interest - Liquor License - Kerala Municipality Act, 1994 - Section 447, Kerala Municipality Rules, 2011, Kerala Abkari Shops Disposal Rules, 2002 - The court held that the proposed liquor outlet complied with statutory requirements and clarified that municipal areas are exempt from prohibitions related to liquor shops along national highways.
Fact of the Case:
A public activist sought a writ of mandamus to prevent a state-run liquor outlet from opening near schools and churches, arguing it would cause public nuisance and violate local laws regarding licensing and proximity to educational institutions.
Finding of the Court:
The court found that the liquor shop was legally permitted, as necessary licenses and approvals were obtained and that the prior prohibition for shops near highways did not apply in municipal areas, clarifying the legal framework established by previous apex court rulings.
Issues: Whether the opening of a foreign liquor outlet violates the Kerala Municipality Act and if it poses a public safety issue proximity to educational institutions.
Ratio Decidendi: The prohibition of liquor shops near national highways does not extend to municipal areas, and the necessary licenses were obtained, validating the operation of the outlet.
Final Decision: The writ petition was dismissed with instructions for the corporation to manage public flow at the outlet.
JUDGMENT
SHAJI P. CHALY.
This is a Public Interest Litigation filed by a public activist, seeking a writ of mandamus to restrain respondents 1 to 4 i.e., the State of Kerala, represented by Secretary (Excise), Taxes (A) Department, Government Secretariat, Thiruvananthapuram, Excise Commissioner, Thiruvananthapuram, Deputy Commissioner of Excise, Excise Division Office, Ernakulam and the Kerala State Beverages (Manufacturing and Marketing) Corporation Limited, Thiruvananthapuram, from opening, operating or functioning an Indian Made Foreign Liquor outlet in the building named “Asthapan Arcade” near Gold Souk, N.H. Bye-Pass, Vyttila, Ernakulam and for a further direction to the 5th respondent not to give any permission or license to function a foreign liquor outlet in the aforesaid building.
2. The contention of the petitioner is that the beverages outlet of the 4th respondent corporation proposed to be opened is in the ground floor of the building belonging to the 6th respondent namely K. A Joseph, situated in the Vyttila Bypass of the National Highway. According to the petitioner, there are 2 schools, 2 churches and one College in the close vicinity of that area and the school children, their parents and the residents of the said locality use the road on the left side of the building in question as their access to the schools, churches etc.
3. It is also submitted that starting a new Beverages outlet will bring into existence long queues on the narrow road which will be a hindrance, nuisance and threat to the pedestrians using the said road. That apart, it is submitted that the functioning of the Beverages outlet in the building is likely to cause nuisance and harm to the school children and the people at large, who reside in the nearby vicinity.
4. Further, four legal contentions are raised against the opening of the proposed outlet ie., (i) the new foreign liquor outlet cannot function without the previous permission of the Municipal Corporation under Section 447 (7) of the Kerala Municipality Act, 1994 ('Act, 1994' for short); (ii) that the Kerala State Beverages Corporation has not secured a license under the Kerala Municipality (Dangerous and Offensive Trade and Factories Licensing) Rules, 2011, (which is now amended as Kerala Municipality (Issue of Licence to Industries, Factories, Trades, Entrepreneurship Activities and other Services) Rules, 2011 ('Rules, 2011' for short); (iii) that the proposed storage of Foreign Liquor in the Cellar portion of the buildings is violative of the Kerala Municipal Building Rules; and (iv) that no license is secured by the Kerala State Beverages Corporation to shift the FL shop No. 7010 from the building now occupied at the Banerji Road, Ernakulam and therefore, if the shop is permitted to be conducted in the proposed building, it would be illegal and violative of the provisions of the Kerala Abkari Shops Disposal Rules, 2002 ('Rules, 2002' for short).
5. Added to the said aspects, it is also contended during the course of the arguments that the proposed building is situated by the side of a service road of the National Highway near Vyttila junction and therefore, the issue is squarely covered by the judgment of the Apex Court inState of Tamil Nadu v. Balu [2017(1) KLT 132 (SC), wherein the Apex Court considered the issue of opening of liquor outlets by the side of National Highways and State Highways and prohibited them, and therefore the action of the respondents is violative of the law laid down by the Apex Court.
6. The State Beverages Corporation—4th respondent has filed a detailed counter affidavit basically contending that there is no public interest involved in the subject matter, that the shop is proposed to be shifted from the present venue at Banerji Road on the basis of the directions issued by a learned single Judge of this Court due to the nuisance caused to the pedestrians and traffic, and on the basis of the contempt proceedings in C.O.(C) No. 982 of 2021.
7. It is also submit
