Judgment :- 1. Guruvayur Temple is one of the most important temples in South India, where devotees from all over India, gather every day to offer their prayers. There are two main entrances to the temple, one on the eastern side, the "eastern Nada" and the other on the western side "the western Nada". People join from both sides. 2. On 23-8-1985, the Board of Revenue (Excise), Trivandrum, accorded sanction for the issue of a foreign liquor Hotel (Restaurant) licence (FL 3 licence) to the fourth respondent for his hotel, Navaratna Gardens, Western Nada, Guruvayur. 3. The writ petitioner, a devotee, a Brahmin, and a resident of Guruvayur township has filed this writ petition challenging the grant and has moved for an interim injunction restraining the fourth respondent from conducting a 'bar' in this hotel. 4. This court issued a commission to ascertain certain facts An advocate sufficiently senior in the profession, whose community has close connections with religious ceremonies in temples, was appointed for the purpose-Sri P. R. Nambiar advocate-commissioner, reported thus: "The distance between the Kali Temple and the Bar of the 4th respondent is 253 meters as measured on ground and over water, and derivative measurement i.e. distance as the crow flies, is 212 meters. The distance between the burial ground or cremation 'ground and the bar aforesaid by the short route on ground is 110 meters and as the crow flies, 91 meters. This is the normal route from the Bar to the cremation ground and is being used by all and sundry and not the circum-Iocuious route pointed out by the 4th respondent. There is the Coffee House Bar FL 3 Licence No. 23/ 2-83 renewed up to 31-3-1986 with C. V. Antony as proprietor at a distance of 154.7 meters (as the crow flies 122 meters) from the temple" and 209 meters (158 meters as the crow flies) from the cremation ground. Mathew Joseph is contractor running an Arrack Shop AS. No. 3A with a distance of 115 meters (80 meters as the crow flies) from the temple and 248.7 meters (202 meters as the crow flies) from the cremation ground". 5.There is no objection to this report for the present and none was advanced at the time of hearing 6. Mathew Joseph is contractor running an Arrack Shop AS. No. 3A with a distance of 115 meters (80 meters as the crow flies) from the temple and 248.7 meters (202 meters as the crow flies) from the cremation ground". 5.There is no objection to this report for the present and none was advanced at the time of hearing 6. When sanction was accorded by the Board of Revenue (Excise) the Assistant Excise Commissioner, Trichur, had reported, on 19-8-1985 that this proposed bar was within 40 meters of an Industrial Training Institute for Girls aided by Government. He had also stated that the main Guruvayur Temple was itself only 541 meters away from this hotel He also reported that the distance "between the hotel and the cremation ground is nearly 150 meters". 7. The writ petitioner contends that the liquor licence for the hotel bar was granted in patent violation of the Abkari Rules which prescribe, by a prohibitory distance that no liquor licence shall be granted under certain circumstances. It is also submitted that the various salient factors enjoined by the Act and the rules have been ignored and the Board, without applying its independent mind, has mechanically granted a licence to carry on trade in a dangerous business in close proximity to an educational institution, temples cremation ground etc. of course, the 4th respondent, refutes all these allegations, and maintains that he has a right to carry on trade in liquor in this Guruvayur Township and asserts that he has invested huge funds for his business and that there are other persons carrying on the same business in his neighbourhood and if they can continue, nothing prevents him also from carrying on the same business. 8. I have heard the counsel on both sides. 9. R.6 (2) of the Kerala Abkari Shops (Disposal in Auction) R.1974 reads thus: "No toddy, arrack or foreign liquor shop (other than a toddy or arrack sub-shop) shall be located outside the limits notified in the Gazette under R.4, but with the previous sanction of Assistant Excise Commissioner it may be removed from one place to another within such limits. R.6 (2) of the Kerala Abkari Shops (Disposal in Auction) R.1974 reads thus: "No toddy, arrack or foreign liquor shop (other than a toddy or arrack sub-shop) shall be located outside the limits notified in the Gazette under R.4, but with the previous sanction of Assistant Excise Commissioner it may be removed from one place to another within such limits. But no shop other than a Foreign Liquor Wholesale shop shall be located in, or removed to place (a) within an area declared as a project area; or (b) within 400 meters from any Educational Institutions, Temples, Church, Mosque or burial ground: Provided that the Board of Revenue may, for sufficient reasons, permit any shop to be located in or removed to a place referred to in clause (a) or clause (b) subject to such restrictions and conditions, if any, as may be imposed". The relevant rule for the grant of FL 3 Licence, R.13 (3) of the Foreign Liquor Rules reads thus: "Foreign Liquor 3 Hotel (Restaurant) Licences. Licence in this Form may be issued by the Excise Commissioner to recognised Hotel or Restaurants where the privilege of sale of Foreign Liquor to such Hotels or Restaurants has been purchased on payment of an annual rental of Rs. 1,50,000. The Hotels shall have at least ten lettable rooms. Fifty percent of the rooms shall have attached bathrooms. There shall be sufficient common bathrooms. At least two rooms shall be air-conditioned excepting in hill stations. All rooms shall be well-furnished and fans shall be provided. There shall be a well furnished separate dining room. There shall be a separate bar room. There shall be a neat kitchen service wholesome food Telephone facility shall be available in places where there is a telephone exchange. No liquor shall be sold under these licences for consumption other than in a room specially approved for the purpose or for removal from the licenced premises, nor shall any liquor be sold other wise than to residents in the hotel or boarding house, for the use of those residents and that of their guests or casual visitors partaking of meals. No licence shall be issued except to meet the requirements of a bonafide Hotel (Restaurant) satisfying the foregoing conditions". No licence shall be issued except to meet the requirements of a bonafide Hotel (Restaurant) satisfying the foregoing conditions". Rule 28 of those rules read thus: "No shop shall be opened before sunrise or kept open after 11 P. M. except under special authority from the Excise Commissioner or from the Assistant Excise Commissioner: Provided that a shop in respect of which FL. 3 licence has been issued may be kept open till 12 O'clock at night". and R.39 also of the same rules is to the following effect: "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". 10. The "privilege" for selling liquor by retail is granted under S.18A of the Act. 11. The contention that is advanced is that R.6(2) quoted above does not apply to Hotel (Restaurant) Licences, FL 3 that there was no statutory bar for the grant of licence to the 4th respondent and thus no injunction should be issued. 12. When there was some doubt whether R.6(2) applied at all to Hotel (Restaurant) licences, "FL. 3", the Board of Revenue issued an order thus: "It has been decided by the Government that the restrictions regarding location of Toddy Shops, Arrack Shops and foreign liquor (Retail) shops will be made applicable to Foreign Liquor (wholesale) shops and Bar attached hotels also. Steps are being taken to amend the rules concerned. In the meanwhile fresh licences to Foreign Liquor Wholesale shops and Bar attached hotels may not be issued, if they do not satisfy these restrictions regarding the location. This is for your information and guidance" (Ext. P1) This administrative direction was issued on 7-8-1985 pursuant to Government communication dated 2-8-1985. But there was no corresponding amendment to the rules. It is thus contended again, that the excise authorities could ignore this administrative direction, which had no statutory backing and thus the Board was competent to accord the necessary sanction - 13. We have to remember the constitutional directive contained in Art.47 which is in these words: "47. But there was no corresponding amendment to the rules. It is thus contended again, that the excise authorities could ignore this administrative direction, which had no statutory backing and thus the Board was competent to accord the necessary sanction - 13. We have to remember the constitutional directive contained in Art.47 which is in these words: "47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health: The state shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health". 14. There is no fundamental right to carry on trade in liquor. It is only a 'privilege' granted by the Government and controlled by the Abkari Act and the Rules. The Government have always the jurisdiction to regulate or prohibit the issuance of licences and impose conditions for conducting the trade in liquor. It is a power which is inherent in the Government in view of the accepted position that the State has "the power to prohibit trades which are injurious to the health and welfare of the public" and that the State "has the right to prohibit absolutely every form of activity in relation to intoxicants" and especially because" in all their manifestations, these rights are vested in the State and indeed without such vesting there can be no effective regulations of various forms of activities in relation to intoxicants". 14. In Har Shankar v. Dy. E. & T. Commr. (AIR. 1975 SC. 1121) the Supreme Court summarised the position thus: "These unanimous decisions of five Constitution Benches uniformly emphasized after a careful consideration of the problem involved that the State has the power to prohibit trades which are injurious to the health and welfare of the public, that elimination and exclusion from business is inherent in the nature of liquor business that no person has an absolute right to deal in liquor and that all forms of dealings in liquor have, from their inherent nature, been treated as a class by themselves by all civilised communities. The contention that the citizen had either a natural or a fundamental right to carry on trade or business in liquor thus stood rejected". "In our opinion, the true position governing dealing in ' intoxicants is as stated and reflected in the Constitution Bench decisions of this Court in Balsara's case 1951 SCR. 682-(AIR 1951 SC 313): Coovaergee's case 1954 SCR. 873- (AIR. 1954 SC. 220): Kidwai's case 1957 SCR. 295 (AIR. 1957 SC. 414): Nagendra Nath's case 1958 SCR. 1240 (AIR 1958 SC. 398): Amar Chakraborty's case (1973) I SCR. 533- (AIR. 1972 SC 1863) and the R.K D.C case 1957 SCR. 874- (AIR. 1957 SC. 699) as interpreted in Harinarayan Jaiswal's case (1972) 3 SCR. 784- (AIR. 1972 SC 1816) and Nashirwar's case AIR. 1975 SC 360 There is no fundamental right to do trade or business in intoxicants. The State, under its regulatory powers, has the right to prohibit absolutely every form of activity in relation to intoxicants-its manufacture, storage, export, import, sale and possession. 1n all their manifestations, these rights are vested in the State and indeed without such vesting there can be no effective regulation of various, forms of activities in relation to intoxicants. In 'American Jurisprudence', Volume 30 it is stated that while engaging in liquor traffic is not inherently unlawful, nevertheless it is a privilege and not a right, subject to governmental control (page 583). This power of control is an incident of the society's right to self-protection and it rests upon the right of the State to care for the health, morals and welfare of the people. Liquor traffic is a source of pauperism and crime". 15. When therefore the Government directed on 2-5-1985, that no fresh licence will be issued to Bar attached hotels, and the Board in faithful obedience communicated by issuing another order on 7-8-1985, there was no jurisdiction to grant any licence after that date and the Board itself exceeded its jurisdiction and acted in violation of the Government directive, binding on the Board also, when it accorded sanction to the fourth respondent on 23-8-1985 16. Source for issuance of administrative or executive directions by the Government in respect of the liquor trade is also contained in S.18-A of the Kerala Abkari Act under which it is "lawful for the Government" to grant the privilege on such conditions "as they may deem fit". Source for issuance of administrative or executive directions by the Government in respect of the liquor trade is also contained in S.18-A of the Kerala Abkari Act under which it is "lawful for the Government" to grant the privilege on such conditions "as they may deem fit". The conditions may include a temporary prohibition as well. 17. Thus as long as Ext. P1 communication of the Board and the directive issued by the Government on 2-8-1985 are in force, fresh licences FL.3 cannot be issued to Hotel/ Restaurant. The fact that Ext. P1 states that the rules would be amended did not mean that till the rules are amended, there is no check in issuing fresh FL.3 licences. 18. Even apart from the Government direction and the Board communication Ext. P1, I am inclined to make view that even under the existing rules, an FL.3 licence cannot be granted violating R.6(2) extracted earlier. 19. R.6(2) of the Abkari Shops (Disposal in Auction) Rules, 1974 insists that no shop other than a foreign liquor wholesale shop shall be located or removed to a place within 400 meters from any educational institution, temples, church, mosque or burial ground. This provision is inserted in public interest and cannot have any restricted or narrow meaning. Sale of liquor in close proximity to a temple, mosque, church, educational institution etc. is rightly prohibited. If sale is generally prohibited, in those areas, that prohibition should apply to all forms of sale of liquor. The prohibition has to apply to sale of any liquor in a hotel/restaurant also. Of course, the rule says that no shop shall be located within the prohibited distance. The contention is that hotel/ restaurant is not a shop. A hotel/ restaurant where retail sale of liquor is allowed is also a shop, a business place within the meaning of this rule. Moreover, there is sufficient indication in the rules themselves that these hotels/restaurants have been located as shops. In the FL.3 licence granted one of the conditions is that "no shop be opened before sunrise". (Clause 20). Clause.22 states that No. FL.3 licence will be issued for a shop situated in a place objectionable in public interest. When the licence itself thus describes the premises as a shop, there is no warrant for restricting the scope of the meaning of the expression 'shop' in S.6(2). (Clause 20). Clause.22 states that No. FL.3 licence will be issued for a shop situated in a place objectionable in public interest. When the licence itself thus describes the premises as a shop, there is no warrant for restricting the scope of the meaning of the expression 'shop' in S.6(2). The object for which this rule is inserted is likely to be defeated if a narrow interpretation is given to the expression 'shop' in R.6(2). 20. It is said that R.6(2) applies only to a shop disposed of in auction under the Act and thus cannot apply to FL.3 licence which are not granted in auction. But R.6(2) is in Chapter V relating to "General conditions applicable to all licences including foreign liquor retail licences". Hotel (Restaurant) licence is permission for one form of retail business in liquor. Moreover, auction is conducted under S.18A for fixing the 'rental' for the 'previlege'. The 'rental' can be fixed under the same provision by any other method. In the present case, rental is fixed under the rule itself. FL. 3 licences have also thus to pay 'rental'. R.13(2) of the Foreign Liquor Rules mentions the word 'rental' in relation to the amount payable by the FL. 3 licence. R.6(2) applies in any case to licences who have to pay 'rental', fixed under S.18-A. 1n this view also R.6(2) applies. : 21. If R.6(2) is silent regarding licencees restaurants, as the contention goes, the gap, lacuna, if any can be filled or remedied by administrative instructions. On this ground also Ext. PI is valid. 22. Thus hotel/restaurant licences (FL. 3) cannot be granted within 400 meters of educational institutions, temples, church, mosque or burial ground as enjoined in Rule.6 (2). 23. In this case, the Assistant Commissioner's report, Ext. R4 (c), states that the hotel is within 40 meters of one aided educational institution. The Commissioner's report shows that it is within 253 or 213 meters from a 'kali temple', 91 meters from a burial ground or cremation ground. The licence is opposed to Rule. 6(2) and is within the mischief of the prohibition contained in Ext. P1. 24. There is yet another fatal defect for the grant. The licence can be granted only if the place is not objectionable either on grounds of public interest or expediency (rule 39 of the Foreign Liquor Rules). The licence is opposed to Rule. 6(2) and is within the mischief of the prohibition contained in Ext. P1. 24. There is yet another fatal defect for the grant. The licence can be granted only if the place is not objectionable either on grounds of public interest or expediency (rule 39 of the Foreign Liquor Rules). The authority has to consider whether, even apart from R.6(2), the place is objectionable or not. It seems that the Department/ Board takes the view that wherever there is provision in a hotel such as ten lettable rooms, attached bathrooms, two air-conditioned rooms, etc. (as mentioned in R.1 of the Foreign Liquor Rules) FL. 3 licence is automatic if the rental of Rs. 1,50,000/- is paid. This is wrong. The authorities may still have to consider whether the hotel/ restaurant is located in a place where selling of liquor can be permitted in public interest or whether it is expedient to allow sale of liquor in such premises. In the present case, the hotel is in the western nada of the Guruvayur temple. The Assistant Commissioner himself reports that the hotel is 541 meters away from the Guruvayur temple. Under R.6(2), liquor cannot be sold within 400 meters, from an educational institution or temple. That does not mean, that outside this distance limit in all cases, a licence can be granted or has to be granted. 25. Independent of R.6(2) also, the authorities have to consider whether the land site or shop is a place fit for being licenced to sell liquor. There may be cases where, even if the site is beyond the prohibited distance, it shall not be proper, desirable or expedient to grant liquor licence in public interest. To my mind, in a place like Guruvayur, where devotees from all over 1ndia assemble in thousands everyday, the authorities may have to consider whether a place, even outside the distance limit prescribed under R.6 (2) can be licensed at all to sell liquor. It is however, for the authorities to consider this aspect, not for this court to express its final opinion at this stage. It is sufficient to note that the authorities have not applied their mind to this aspect at all. 26. The counsel for the 4th respondent submitted that there is difference between cremation ground and burial ground and that R.6 (2) could not apply to this case. It is sufficient to note that the authorities have not applied their mind to this aspect at all. 26. The counsel for the 4th respondent submitted that there is difference between cremation ground and burial ground and that R.6 (2) could not apply to this case. These tine distinctions may not be of any avail considering the inherent danger of the liquor trade which requires stiff and strict restrictions. 27. It was also contended by the 4th respondent that this writ petition has been instigated by another hotel/ restaurant licence and if the 4th respondent is not entitled to a licence that neighbouring hotel/ restaurant should not also have been licenced. There is force in this contention A renewal of a licence is also a fresh grant. When at the time of renewal, there was a prohibition for the grant of licence, renewal should not have been granted and a wrong grant can be set aside by the authority itself. 28. So also if the licence was granted in violation of R.6 (2), or without considering the question whether the place (hotel) was as objectionable site in view of its nearness to the Guruvayur temple, the authorities may be able to take steps to cancel their licences or refuse a renewal so far as they are concerned, according to law. As they are not before this court, it is not possible to decide that matter in this case. 29. The grant of the licence to the 4th respondent is thus opposed to R.6(2) of the Kerala Abkari Shops (Disposal in Auction) Rules, 1974 and should not have been made in the teeth of the prohibition contained in Ext. PI and the Government letter referred to therein. The Board also did not apply its mind to all relevant factors when it decided to grant an FL 3 licence to the 4th respondent. 30. In the result, the 4th respondent is restrained by an injunction from selling liquor in retail and from operating on the strength of his FL. 3 licence or conducting a bar in the hotel Navaratna Gardens, Western Nada, Guruvayur pending disposal of this Original Petition. He is directed to stop his liquor trade in this hotel forthwith. 31. 30. In the result, the 4th respondent is restrained by an injunction from selling liquor in retail and from operating on the strength of his FL. 3 licence or conducting a bar in the hotel Navaratna Gardens, Western Nada, Guruvayur pending disposal of this Original Petition. He is directed to stop his liquor trade in this hotel forthwith. 31. The Government Pleader prays for time for filing counter in the O.P. and the 4th respondent submits that the relevant records will be necessary for the effective disposal of the O.P. Respondents 1 to 3 will file counter affidavit in the O.P. within one month. The petitioner may consider whether the Guruvayur Devaswom is not a necessary or at least a proper party. Post O.P. for hearing in November in the fair list. Issue carbon copy of this order to counsel appearing for all the parties on usual terms for with.