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Showing contexts for: zebra crossing in Hotel Sky Palace vs State Of Kerala on 26 February, 2014Matching Fragments
3. The State has filed a detailed counter affidavit wherein they have averred as follows:
In compliance with the judgment, the first respondent has passed Ext.P6 order cancelling the FL3 license issued to the Hotel Sky Palace, Kannur vide G.O.(Rt) No.701/2011/TD dated 1.10.2011. Government have examined the matter with available records, in detail. It was revealed that the Bar Hotel was situated in an objectionable site at the time of granting of FL3 license in the year 2005. The zebra crossing was made only during 2007 as per work order dated 20.6.2007 issued from Kannur Municipality. It is very clear that the zebra crossing was drawn after a gap of more than one and a half years since the opening of the bar and the bar hotel was in an objectionable site at the time of grant of FL3 license. The distance between the Hotel Sky Palace and its nearest objectionable site, Government U.P.School, Thavarakkara was measured by several officers, Assistant Excise Commissioner, Kannur, Deputy Commissioner of Excise, Northern Zone, Kozhikkode, Deputy Commissioner of Excise, Excise Intelligence and Investigation Bureau, Thiruvananthapuram and by the three members committee headed by the Joint Commissioner of Excise, Thiruvananthapuram a senior IAS officer. All of them have reported that the distance was less than 200 metres. The petitioner was also present while measuring the distance. The zebra cross on the road was marked in 2007 as per the work order dated 20.6.2007 of the Kannur Municipality. The FL3 license was issued on 9.11.2005. It is therefore submitted that Ext.P6 order of the Government cancelling the FL3 license was made after considering all relevant matters and hence the decision of the government is correct and legal. The FL3 license granted to the hotel is liable to be cancelled in the light of the facts revealed."
4. I have heard the learned senior counsel appearing for the petitioner and the learned Senior Government Pleader in the matter.
The following were the arguments advanced by the learned senior counsel for the petitioner.
i) The first respondent has not considered the fact that the zebra crossing was drawn by the Municipality on 20.6.2007 and even if the petitioner applies for a fresh grant of license, the petitioner is entitled to get an FL3 license, especially, in the light of the principles laid down by this Court in State of Kerala v Vijayakumar (2009(1) KLT 578). The measurement should be taken along the footpath and through zebra crossing in conformity with the traffic rules.
ii) As per the 3rd proviso to Note (2) of Rule 13(3) of the Foreign Liquor Rules, all the licenses functional on 31.3.2007 are regularised and more than 120 bar hotels functioning within the objectionable site are regularised by the said proviso.
5. The learned Senior Government Pleader, per contra, inviting my attention to paragraph-5 of the counter, submitted that neither the public nor the educational institution is benefited by the zebra crossing as borne out from the report submitted by the Deputy Commissioner. According to the learned Senior Government Pleader, the petitioner alone was benefited by the said zebra crossing.
9. It appears from Ext.P6 that the first respondent has not considered the fact that the renewal of license amounts to a fresh grant as held by this Court in Abraham v Assistant Excise Commissioner (2002(1) KLT 607).
10. That being the case, even at the time of renewal of license for the year 2011-2012, the measurement has to be taken through the zebra line. It is stated in Ext.P6 that the zebra crossing was shown by the local authority only on 20.6.2007. Therefore, even from 20.6.2007, the distance was more than 200 meters, if the measurement was taken from the zebra crossing, following the principles laid down by this Court in Vijayakumar's case (supra). Therefore, even if the petitioner had applied for a fresh license, the petitioner's firm is entitled to get the license renewed on the basis of the measurement through zebra crossing which is more than 200 meters. Here, it is 298 meters as reported in Ext.P7. As per Rule 13(3) which stood in force in the year 2006, FL3 license could have been issued only 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 of the Government of India.