A.V. James vs Fr. Thomas Vallavancott and others

Balakrishnan, J.—Seventh respondent in O. P. No. 15102 of 1992 is the appellant herein in the original petition filed by respondents 1 to 5 herein they challenged the licence granted to the appellant herein for conducting, a Bar in his Hotel by name ''Hotel Rose at Bharananganam. The allegation of respondents 1 to 5 was to the effect that the appellant had been conducting Bar hotel near a Church and schools. It was alleged in the original petition that mortal remains of Blessed Sr. Alphonsa are kept at the Alphonsa Shrine. Bharananganam and this Place Is a centre of pilgrimage and thousands of devotees and worshippers visit this place and the Bar attached hotel owned and conducted by the appellant herein is very close to the Alphonsa Shrine. It was also alleged that the Bar hotel is in close proximity to St. Mary''s Forane Catholic Church and three other schools, namely, St. Mary.s High School for Boys, St. Little Teresa''s L. P. School, S. H. High School for girls and also a burial ground attached to St. Mary''s Forans Catholic Church. Petitioners in the O. P. alleged that the (sic) of licence to 7th respondent therein was in defiance of Rules 13 (3) and 39 of the Foreign Liquor Rules. Appellant herein resisted the claim by contending that the Bar attached hotel owned by the appellant is not very close to St. Mary''s Forane Catholic Church or St. Mary''s High School or other institutions mentioned by the petitioners in the original petition. According to the appellant, the Bar hotel is beyond the prohibited distance. The hotel building and the hotel room in which Bar is conducted are different and there is no; access to the hotel from the Bar. The Bar rooms on the side of the hotel are independent and the only access to the Bar hotel is through the pathway provided for it. It is alleged that the distance is to be calculated on the basis of the shortest pathway to the Bar which is beyond 200 metres from the Church, school and other institutions.

The learned single Judge elaborately considered the matter and held that the hotel building is situated within 200 metres of the Church and the school and, therefore, it in violative of Rule 13 (3) of the Foreign Liquor Rules. The learned single Judge also held that in granting FL3 licence'' to the appellant. Rule 39 of the Foreign Liquor Rules also is violated. It was held that it is highly objectionable to have a bar attached hotel just opposite to such a holy place which is very sacred to all people, especially to the Roman Catholic Christians, where the shrine of Blessed Sr. Alphonsa is situated and the situation of the bar attached hotel just opposite to this holy institutions is certainly objectionable on the ground of public interest or expediency and the authorities had not appreciated any of these circumstances in its right perspective before granting the licence and accordingly the licence granted to the appellant herein was quashed,

Learned Counsel for the appellant raised several contentions. The first contention advanced was that the finding of the learned single Judge that the Bar hotel is within 200 metres of the Church and educational institutions is not correct. Our attention was drawn to the commission report prepared by the commissioner. The commissioner, who visited the property, filed a report stating that if the nearest pathway leading to the Bar room is taken it is beyond 200 metres from the three schools and St. Mary''s Forane Catholic Church. The contention of the appellant is based on the commission report. The commissioner has filed a rough sketch along with report. The main hotel building is on the western side of Vagamon-Palai road. It is admitted that one can enter the hotel building from the Vagamon Palai road. There is a road leading towards west from Bharananganam to Edamattom, Another road branches off from this road to Klzhaprayar just 100 metres away from the junction According to the appellant the pathway leading to Bar hotel starts from this road, namely, Bharananganam-Klzhaprayar road and not From Palai-Vagamon road. The counsel for respondents 1 to 5, on the other hand, contends that there is entrance to the hotel as well as the bat room from the Palai-Vagamon road. The commissioner appointed in this case was specifically directed to ascertain this fact and in her report dated 23-11-92 it is stated that there is a passage and it was found closed by a rolling shutter and on opening of the rolling shutter it was found that the other side was found closed by a brick wall. So, at the time of the visit of the, commissioner the pathway, if any, that existed to the Bar hotel from Palai-Vagamon road was found closed.

It is not known whether this pathway was in existence at the time when Ext. P7 licence was granted in favour of the appellant. If the pathway is in existence the Bar hotel is certainty within the prohibited distance as envisaged under Rule 13(3) of the Foreign Liquor Rules.

The next question to be considered is whether Rule 39 of the Foreign Liquor Rules has any application. The counsel for the appellant contends that Rule 39 was made applicable only when Rule 13 (3) was not introduced and it is alleged that when a subsequent rule regarding distance was introduced by amending Rule 13 (3) of the Foreign Liquor Rules by S. R O. 349/86/TD dated 28-2-86 Rule 39 became redundant and it has no applicability. The relevant portion of Rule 13 (3) of the Foreign Liquor Rules is as follows:

But no such licence shall be issued to Hotels or Restaurants which are located within 200 metres from an educational institution, temple, church, mosque or burial ground.

Whereas Rule 39, which is a general provision, reads as follows:

No licence will be issued for a shop which is situated or which is intended to be opened in a place where on grounds of public interest or expediency it is objectionable to permit any traffic in liquor:

6 We do not think that the contentions advanced by the appellant are correct. The, mandate contained la Rule 13(3) of the Foreign Liquor Rules la specific and any licence granted against that rule is illegal, We may also notice that a similar provision is contained in Rule 6(2) (a) of the Abkarl Shops (Disposal in Auction) Rules, in all these cases the Role says that the Abkarl Shops shall not be within certain prohibited distance of the educational institutions, places of worship, burial grounds etc. and the licensing authorities are directed not to grant any licence in defiance of these Rules. Where us, Rule 39 of the Foreign Liquor Rules is a general provision which the licensing authority should take into consideration while granting licence. It is for the licensing authority to consider the grounds of public interest or expediency in granting licence to the contractors. If it is objectionable to grant any such licence, the licensing authority shall desist from granting any licence. If FL3 licence is sought in respect of a hotel situated in an important holy place or place of pilgrimage, the licensing authority would be competent to reject the application under Rule 39 even if the hotel is beyond 200 metres away from the educational institutions, temple, church, mosque or burial ground. Rules 13(3) and 39 of the Foreign Liquor Rules may operate in different fields and each has got its own applicability.

It is apposite to note that a Full Bench considered the matters that are to be looked into while granting FL3 licence. The observations by one of us (M. Jagannadba Rao, C. J.) speaking for the Bench in Biju Joseph v. Checko .992 (2) KM 312 (F. B.) are as follows (paragraph 10)1:

It is therefore, clear that while granting a licence to a Bar in a hotel in FL3 form, it is necessary for the authorities to consider (I) whether the local, heeds do not justify the grant of a licence, (ii) whether the licence is likely to have an adverse effect on the revenues of the State, (iii) whether there is likelihood of the privilege being misused etc. as mentioned inn R, 13A and it will also be necessary for the authorities to consider whether the shop is situated or is intended to be opened in a place where on grounds of public interest or expediency it is objectionable to permit any traffic in liquor. this Court can come to the conclusion that if while granting any licence in FL3 form to a hotel or restaurant opening a Bar, this principle is. violated, the same is clearly liable to be quashed.

In the instant case, the licensing authority does not seem to have (sic) Rule 39 of the Foreign (sic) Rules. It is also not definite whether, the distance to the Bar hotel was clearly ascertained by the licensing authority before granting Ext P7 licence. The learned single Judge has ordered to cancel the licence issued to the appellant. In partial modification of the decision of the learned single Judge, we direct the licensing authority to consider the question whether the appellant herein is entitled to get licence having due regard to Rules 13(3) and 39 of the Foreign Liquor Rules. Parties on either side would be entitled to present their case before the licensing authority. Respondents 1 to 5 would be at liberty to produce all documentary evidence to prove the importance of the holy place to substantiate their case that license may not be granted under Rule 39 of the Foreign Liquor Rules. After hearing both sides the (sic) authority any take a fresh decision in the matter within a reasonable time Writ Appeal. is disposed of as stated above.