Allowed

P.J.John v. State of Kerala

Kerala HC24 Nov 2022WP(C)/1955/2021

Case brief

AI extract

What is this about?

The Court allowed the petition quashing a rejection of a liquor license. It directed the Government to reconsider the revision afresh, considering the hotel's new four-star status, revised distance from the Gandhi statue, recent judgments, and the presence of a nearby beverages outlet.

What did the court decide?

Ext.P6 set aside; 1st respondent directed to reconsider the revision, afford hearing, consider P7-P9 judgments, and location of nearby Beverages Outlet within two months.

P.J.John Vs State of Kerala — Service and Employment | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

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THURSDAY,THE 24^TH DAY OF NOVEMBER 2022 / 3RD AGRAHAYANA, 1944

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WP(C) NO. 1955 OF 2021

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PETITIONER:

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P.J.JOHN
AGED 62 YEARS, S/O.P.M.JOHN,
PROPRIETOR, J.JOHNS HOTELS (CLASSIK FORT),
POONITHURA, ERNAKULAM DISTRICT,
REPRESENTED BY THE POWER OF ATTORNEY HOLDER
LIJO GEORGE, AGED 36 YEARS, S/O.GEORGE,
NELLIKKATTU HOUSE, KINGINIMATTOM P.O., ERNAKULAM.
BY ADVS.
P.MOHANDAS (ERNAKULAM)
DR.K.P.SATHEESAN (SR.)
SRI.S.K.ADHITHYAN
SRI.SABU PULLAN
SRI.GOKUL D. SUDHAKARAN

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY THE SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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2 THE EXCISE COMMISSIONER EXCISE HEADQUARTERS, THIRUVANANTHAPURAM - 695 014.

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3 THE DEPUTY COMMISSIONER OF EXCISE ERNAKULAM, KOCHI - 682 018.

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4 THE CIRCLE INSPECTOR OF EXCISE THRIPUNITHIRA, ERNAKULAM - 682 031. BY ADV RASHMI.K.M, SR.GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 24.11.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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WP(C).No.1955/2021

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P.V.KUNHIKRISHNAN, J.

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W.P.(C).No.1955 of 2021

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---------------------------------------------Dated this the 24^th day of November, 2022

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JUDGMENT

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This writ petition is filed with following prayers:

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i. To issue a Writ of Certiorari or such other appropriate writ, order or direction quashing Ext.P5 order No. EXC-2277/2019-XC6 dated 19.3.2020 issued by the 2^nd respondent as it is arbitrary and illegal.

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ii. To issue a Writ of Certiorari or such other appropriate writ, order or direction quashing Ext.P6 order G.O. (Rt)No. 836/2020/TAXES dated 28-12-2020 issued by the 1^st respondent as it is patently erroneous and unsustainable in law.

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iii. To issue a Writ of Mandamus or order or direction to the 2^nd respondent to grant FL-11 license to the petitioner's hotel since the same is located beyond the prohibited distance and does not violate any of the Foreign Liquor Rules.

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iv. To declare that the petitioner is entitled to get FL11 license to his hotel as it is having four star classification and the same does not violate any of the provisions of the Abkari Act and Rules.

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WP(C).No.1955/2021

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v. To issue such other appropriate Writ, Order or direction as is deemed just and necessary in the circumstances of the case.

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The petitioner is the proprietor of J. Johns Hotels (Classik Fort) at Poonithura in Ernakulam District. Originally the hotel was having only three star classification. It is the case of the petitioner that when the petitioner applied for FL3/FL-11 licence in the year 2012, the same was rejected stating that Mahatma Gandhi statue is just 10 metres away from the main entrance of the hotel. The writ petition, writ appeal and the S.L.P. against the said order was dismissed. Thereupon it is the case of the petitioner that he reconstructed the hotel changing the entire nature and construction of the building. It is also stated in the writ petition that all modern facilities are provided and thereupon Government of India granted four star classification. It is also stated that the main entrance of the hotel is now shifted to the opposite side. Hence it is submitted that the Mahatma Gandhi statue is at a distance of more than 50 metres from the main entrance. Thereupon the petitioner again applied for FL-3/FL-11 licence

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WP(C).No.1955/2021

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to the new four star hotel. It is also the case of the petitioner that there is a Beverages Outlet selling liquor within a distance of 25 metres from the statue. Similarly another bar hotel is functioning within a distance of one kilometre from the statue is the contention of the petitioner. However, the application was rejected by the 2^nd respondent as per Ext.P5 order stating that the previous circumstances still prevails. The revision filed before the Government is also dismissed as evident from Ext.P6. Hence this Writ Petition.

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Heard the learned Senior Counsel Sri.K.P.Satheesan, as instructed by Sri.Sabu Pullan. I also heard the learned Government Pleader.

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The Senior Counsel takes me through Exts.P5 and P6. The Senior Counsel also takes me through Exts.P7 to P9 judgments. According to the Senior Counsel, the Government has not considered the fact that the petitioner’s hotel is now a four star hotel and the statue is beyond 50 metres. It is the case of the petitioner that the distance is not measured with notice to the petitioner.

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The Government Pleader, on the other hand, takes me through paragraph 4 of the statement filed by the 3^rd

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WP(C).No.1955/2021

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respondent, in which it is stated that relaxation was made in distance rules applicable to four star hotels to 50 metres as in the case of five star hotels. The issue in question is not about objectionable site, but there is public agitation attracting rule 39 of FL rules.

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This Court considered the contention of the petitioner and the Government Pleader. A perusal of Ext.P6 order will show that the Government has not considered the fact that the petitioner’s hotel is a four star hotel now. It is not clear from Ext.P6 as to whether the Government considered the fact that there is a Beverages Outlet is functioning adjacent to the Mahatma Gandhi statue.

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Considering the facts and circumstances of the case, I think a reconsideration by the Government is necessary in this case. While considering the revision afresh, the Government will consider the applicability of Exts.P7 to P9 judgments also.

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Therefore, this writ petition is allowed in the following manner:

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Ext.P6 is set aside.

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The 1^st respondent is directed to

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WP(C).No.1955/2021

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reconsider the revision filed by the petitioner, after affording an opportunity of hearing to the petitioner, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment.

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While considering the revision, the applicability of Exts.P7 to P9 judgments and also the location of the nearby Beverages Outlet, if any, will be considered by the 1^st respondent.

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sd/-

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P.V.KUNHIKRISHNAN JUDGE

WP(C).No.1955/2021

`PETITION`	`ER EXHI`	`BITS`
`EXHIBIT`	`P1`	`TRUE COPY OF THE` `ORDER DATED 14/02` `CONVENER, REGIONA` `COMMITTEE (SOUTHE`	`STAR CLASSIFICATION` `/2012 ISSUED BY THE` `L CLASSIFICATION` `RN REGION).`
`EXHIBIT`	`P2`	`TRUE COPY OF THE` `DATED 15/05/2012` `RESPONDENT.`	`ORDER NO.XC6-6701/12` `ISSUED BY THE 2ND`
`EXHIBIT`	`P3`	`TRUE COPY OF THE` `DATED 20/09/2012` `RESPONDENT.`	`ORDER NO.XC6-6701/12` `ISSUED BY THE 2ND`
`EXHIBIT`	`P4`	`TRUE COPY OF THE` `CLASSIFICATION CE` `THE ASSISTANT DIR` `MEMBER SECRETARY` `RESTAURANTS APPRO` `CLASSIFICATION CO` `24/08/2018.`	`FOUR STAR` `RTIFICATE GIVEN BY` `ECTOR GENERAL AND` `OF HOTEL AND` `VAL AND` `MMITTEE DATED`
`EXHIBIT`	`P5`	`TRUE COPY OF THE` `NO.EXC/2277/2019-` `ISSUED BY THE 2ND`	`ORDER` `XC6 DATED 19/03/2020` `RESPONDENT.`
`EXHIBIT`	`P6`	`TRUE COPY OF THE` `1ST RESPONDENT AS` `NO.836/2020/TAXES`	`ORDER ISSUED BY THE` `G.O.(RT)` `DATED 28/12/2020.`
`EXHIBIT`	`P7`	`TRUE COPY OF THE` `7/9/2020 IN WP NO`	`JUDGMENT DATED` `.49982/2019.`
`EXHIBIT`	`P8`	`TRUE COPY OF THE` `O.P.NO.24368/2001`	`JUDGMENT IN` `DATED 1/2/2002.`
`EXHIBIT`	`P9`	`TRUE COPY OF THE` `NO.19489/2010 DAT`	`JUDGMENT IN WP(C)` `ED 21/02/2012.`
`Exhibit`	`P10`	`TRUE COPY OF THE` `TO HOTEL CENTRAL` `19.02.2021.`	`FL-3 LICENCE GRANTED` `PLAZA DATED`
`Exhibit`	`P11`	`TRUE COPY OF THE` `CERTIFICATE ISSUE` `PLAZA DATED 29-03`	`FL-3 LICENSE RENEWAL` `D TO HOTEL CENTRAL` `-2021.`
`Exhibit`	`P12`	`TRUE COPY OF THE` `THE POSITION OF H` `AND MAHATMA GANDH`	`PHOTOGRAPH SHOWING` `OTEL CENTRAL PLAZA` `I STATUE.`

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WP(C).No.1955/2021

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Exhibit P13TRUE COPY OF THE PHOTOGRAPH SHOWING
THE DISTANCE FROM THE BAR OF HOTEL
CENTRAL PLAZA.

P.J.John v. State of Kerala

Case brief

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P.J.John v. State of Kerala

Case brief

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