Kerala High Court
K.T.Manoj Kumar vs The Excise Commissioner on 2 July, 2025
2025:KER:47988
W.P(C) No.3106/2025 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
ND
WEDNESDAY, THE 2 DAY OF JULY 2025 / 11TH ASHADHA, 1947
WP(C) NO. 3106 OF 2025
PETITIONER/S:
K.T.MANOJ KUMAR,
AGED 52 YEARS,S/O.K.P.THANKAPPAN, HOTEL GAYATHRI INN,
KALLADIKKODE, PALAKKAD DISTRICT,(LICENSEE, FL-3 LICENSE
NO.P-28/2024-25), PIN - 678596
BY ADVS.
SRI.M.G.KARTHIKEYAN
SRI.NIREESH MATHEW
RESPONDENT/S:
1 THE EXCISE COMMISSIONER,
COMMISSIONERATE OF EXCISE, EXCISE HEAD QUARTERS,
NANDAVANAM, THIRUVANANTHAPURAM, PIN - 695033
2 THE DEPUTY COMMISSIONER OF EXCISE,
EXCISE DIVISION OFFICE, DURGA NAGAR, KENATHUPARAMBU,
KUNNATHOORMEDU,PALAKKAD., PIN - 678001
3 THE CIRCLE INSPECTOR OF EXCISE,
MANNARKKAD, V.K.LODGE, KODATHIPADI,MANNARKKAD, PALAKKAD
DISTRICT., PIN - 678582
4 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY, TAXES (A) DEPARTMENT, GOVT.
SECRETARIAT,THIRUVANANTHAPURAM., PIN - 695001
BY SR.GOVERNMENT PLEADER SMT. SURYA BINOY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
25.06.2025, THE COURT ON 02.07.2025, DELIVERED THE FOLLOWING:
2025:KER:47988
W.P(C) No.3106/2025 2
MOHAMMED NIAS C.P., J.
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W.P(C) No.3106 of 2025
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Dated this the 2nd day of July, 2025
JUDGMENT
The petitioner is the licensee of Hotel Gayathri Inn, holding an FL-3 Licence No. P-28/2024-25, and has been conducting the bar licence from the year 2009 onwards under Rule 13(3) of the Foreign Liquor Rules as it satisfied the prescribed distance norms--specifically, more than 200 metres from any objectionable institution--as the then existing gate was 235 metres away from the Salvation Army Church and 254 metres from a nearby mosque.
2. Subsequently, a zebra crossing was constructed on the National Highway (NH-213) adjacent to the hotel premises. In view of the changed physical access scenario and to enable direct entry from the highway in accordance with traffic safety norms, the petitioner submitted a request on 18.09.2022 to the 1st respondent for permission to fix a new gate aligned with the zebra crossing. Measurements taken from the new proposed gate 2025:KER:47988 W.P(C) No.3106/2025 3 to the gate of the Salvation Army Church, taking into account the zebra crossing and footpath as per established guidelines, indicate a distance of 210.1 metres, clearly above the statutory 200-meter threshold.
3. Reports submitted by the lower authorities confirmed that the proposed gate, when measured through the zebra crossing route, satisfies the minimum distance requirement under Rule 13(3). Notwithstanding this, the 1st respondent, the Excise Commissioner, rejected the application by Ext.P1 order dated 31.03.2024, which was confirmed in revision by the 4th respondent, which are challenged in this writ petition.
4. The petitioner relies on the decision of this Court in State of Kerala v. Vijayakumar [2009 (1) KLT 578], which was affirmed by the Hon'ble Supreme Court in SLP(C) No. 12363/2009 dated 06.07.2009, and on the Division Bench judgment in State of Kerala v. Babu John [2012 (4) KHC 735], to contend that the statutory distance under Rule 13(3) must be from gate to gate, along the footpath and through the zebra crossing, in conformity with the Traffic Rules. It is also submitted that with the amendment to the 3rd proviso to Rule 13(3), the distance requirement for 3-star hotels remains 200 metres, whereas for 4-star and above 2025:KER:47988 W.P(C) No.3106/2025 4 establishments, the limit has been reduced to 50 metres. Since the proposed gate satisfies the 200-meter requirement when measured through the zebra crossing, there is no justification for denying approval.
5. In the counter affidavit filed by the 2 nd respondent, Deputy Commissioner of Excise, Palakkad, it is contended that the writ petition is devoid of merit and liable to be dismissed. The petitioner, though a valid licensee of the FL-3 licence for the year 2024-25, is attempting to circumvent the express provisions of the Foreign Liquor Rules by seeking sanction for a new gate in violation of the distance requirements stipulated under Rule 13(3). It is contended that the licence was originally granted in 2009 on the specific finding that no objectionable institution existed within 200 metres of the gate then situated on the south-east end of the premises. At that time, the nearest objectionable institution, the Salvation Army Church, was situated 235 metres away, satisfying the mandatory distance norms under Rule 13(3).
6. The grievance now raised by the petitioner pertains not to the original grant of licence, but to a subsequent request to shift the location of the hotel gate to the north-east end of the premises, facing the National 2025:KER:47988 W.P(C) No.3106/2025 5 Highway. While the petitioner seeks to justify this change by measuring distance via a newly constructed zebra crossing, the respondents contend that such an approach is contrary to both the spirit and letter of the statutory scheme.
7. On receipt of the petitioner's application, the Circle Inspector of Excise, Mannarkkad, conducted a site inspection and submitted a report specifically noting that the proposed new gate is approximately 66 metres from the zebra crossing and 81.10 metres from the gate of the Salvation Army Church, if the crossing is used for measurement. However, it was also observed that the zebra crossing is not divider-controlled and, in practice, members of the public, including hotel patrons, do not typically use it to enter the hotel premises. Thus, relying on such a route for determining statutory distance would amount to adopting a hypothetical and artificial standard of measurement. Furthermore, it is contended that the petitioner's reliance on the decision in State of Kerala v. Vijayakumar [2009 (1) KLT 578], is inapplicable to the present context, as the said judgment dealt with the mode of measurement for determining eligibility at the stage of grant of a fresh FL-3 licence, and cannot be 2025:KER:47988 W.P(C) No.3106/2025 6 extended to justify post facto relaxations for shifting the point of access of an already licenced establishment. The proviso to Rule 13(3) merely protects the continuance of a licence where an objectionable institution comes into existence after the grant of the licence. However, it does not confer a right upon the licensee to alter the originally approved access point in a manner that would otherwise violate the distance rule, thereby bypassing the compliance that was ensured at the time of initial sanction.
8. Heard Sri. Karthikeyan M.G., the learned counsel for the petitioner and Smt. Surya Binoy, the learned Senior Government Pleader for the respondents.
9. The counter affidavit filed by the respondents shows that the Zebra line is about 66 metres away from the proposed gate and that the distance from the proposed gate to the Salvation Army Church gate was measured at 210.10 metres. It is stated that the proposed gate is facing the National Highway and that no divider is provided across the highway so that the vehicles and pedestrians can easily cross the highway to enter the hotel through the gate. Therefore, the distance from the proposed gate to the Church gate crossing through the highway was measured at 81.10 2025:KER:47988 W.P(C) No.3106/2025 7 metres. It is also specifically reported that the public does not take the zebra line to cross the road and enter the hotel premises. This is a question of fact, and there is nothing on record to show that the same is wrong in any manner. A consideration of the relevant rule in question also supports this contention.
10. The Foreign Liquor Rules 13(3), along with the third proviso and the Note, are extracted hereunder:
Rule 13(3): "Foreign Liquor 3 Hotel (Restaurant) Licence- Licence in this form may be issued by the Excise Commissioner under orders of Government, in the interest of promotion of tourism in the State, to hotels which have obtained (three star, four star, five star, five star deluxe, heritage, heritage grand or heritage classic, classification from Ministry of Tourism, Government of India, where the privilege of sale of foreign liquor in such hotels have been purchased on payment of an annual rental of Rs. 35,00,000 (Thirty Five Lakhs only). However, no such licence shall be issued to hotels having three star classification if located within 200 (Two Hundred) metres and to hotels having four star, five star, five star deluxe and heritage classification, if located within 50 (fifty) metres from any educational institution, temple, church, mosque, burial ground or scheduled caste/ scheduled tribe colony. The applicant shall produce from the Abkari Workers' Welfare Fund Inspector, a Certificate to the effect that he has remitted before the date of application for the 2025:KER:47988 W.P(C) No.3106/2025 8 licence, the arrears of contributions if any payable up to the 31st day of December of the preceding year.
xxx xxx xxx xxx xxx
Provided further that if any Educational
Institution/Temple/Church/Mosque or Burial Ground comes into existence subsequent to the grant of licence it shall not disentitle such bar attached hotels for continuance."
Note: (2) In Calculating the distance, the basis will be shortest pathway/lane/street/road generally used by the public, and the same will be measured from gate to gate."
(Emphasis supplied).
11. As stated earlier, there is nothing to contradict the factual finding entered by the authorities that the public does not take the zebra line to cross the road and enter the hotel premises. In Karthikeyan P.M. and Another v. Excise Commissioner, Tvm and Others [2016 (3) KHC 636], it was held as follows:
"28. ... we cannot be oblivious to the fact that more than one responsible official of the department has physically examined the location; they have submitted reports with remarkable consistency that the other gates are also frequently used by the parents as well as the students of the school. From those gates, the distance falls short of four hundred metres. Given a choice between relying on a 2025:KER:47988 W.P(C) No.3106/2025 9 photograph and relying on a disinterested inspection report by an official whose bona fides have not been impeached, the discretion of this Court is better served if it relies on the official report."
The decision arrived at by the fact finding authorities is in tune with the relevant provisions, and therefore, the impugned orders call for no interference.
The Writ Petition fails, and the same is dismissed.
Sd/-
MOHAMMED NIAS C.P. JUDGE okb/ 2025:KER:47988 W.P(C) No.3106/2025 10 APPENDIX OF WP(C) 3106/2025 PETITIONER EXHIBITS Exhibit P1 TRUE PHOTOCOPY OF THE ORDER NO.EXC/1067/2023-XC6 DATED 31.03.2024 PASSED BY THE 1ST RESPONDENT Exhibit P2 TRUE PHOTOCOPY OF THE REVISION PETITION FILED BEFORE THE 4TH RESPONDENT DATED 09.05.2024.
Exhibit P3 TRUE PHOTOCOPY OF THE ORDER GO(MS)NO. 24/ 2025/TAXES DATED 06.01.2025 PASSED BY THE 4TH RESPONDENT.
Exhibit P4 TRUE PHOTOCOPY OF THE DECISION 2009(1) KLT 578 STATE OF KERALA VS. VIJAYAKUMAR