Back
2023 Supreme(Online)(KER) 5229
HIGH COURT OF KERALA
A. Muhamed Mustaque, J
SUBASH SOMAN – Appellant
Versus
THE STATE OF KERALA – Respondent
WP(C) 2804/2020
N.RAGHURAJ, SHRI.ARJUN GOPAL P.
The judgment establishes the necessity for accurate distance measurements in licensing decisions and underscores the importance of adhering to prior case law.
Headnote:
Distance - Hotel Licensing - Various Sections of State Licensing Laws - The court addressed the statutory requirement for distance between bar licenses and schools, emphasizing adherence to previous case law in recalculating distances, ultimately allowing for reconsideration by the Excise Commissioner.
Fact of the Case:
The petitioner filed a writ and review petition regarding the proximity of a proposed bar license for a hotel to a nearby school, challenging prior decisions that deemed the distance compliant with statutory requirements.
Issues: Whether the Excise Commissioner accurately measured the distance between the proposed bar and the nearby school as per statutory regulations and relevant case law.
Ratio Decidendi: The court highlighted the necessity for strict adherence to previously laid down legal metrics concerning distance measurement, reiterating that established case law must guide administrative action.
Final Decision: The petitions were disposed of, allowing for reconsideration of the distance measurement in accordance with established legal principles.
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
