JOSEPH v. EXCISE COMMISSIONER — 1988 DIGILAW 518 (KER)

Judgment :- 1. he first plaintiff in O.S.274/88 is the revision petitioner. The suit is one for permanent injunction. He filed I.A. 1228/88 for temporary injunction restraining defendants 1 to 4 from conducting a bar in Sea Blue Hotel in Manni) buildings described in the schedule attached to the plaint, and 5th defendant from issuing licence for the conduct of such a bar. The trial court allowed the application after bearing the objections of defendants 1 to 5. The fourth defendant challenged the order by filing C.M.A. 25/88 before the District Court, Pathanamthitta. The firth defendant who is the sixth respondent herein, the Excise Commissioner challenged the order by filing C.M.A. 37/88. Both these appeals were heard and disposed of by the order under challenge. 2. Facts relevant and requisite to decide the issue lie in a narrow compass. Defendants 1 to 4 have recently taken on rent the first and second floors of Mannil Buildings for the conduct of a bar attached Hotel by name 'Sea Blue Hotel'. The St. Mary's L.P. School is a Government recognised school. The bar attached hotel proposed to be opened is located within the prohibited range namely, within 200 metres from the above mentioned school. The licence asked for by defendants 1 to 4 under the Foreign Liquor Rules therefore is liable to be rejected. The suit, it is said, is laid in a representative capacity, on behalf of the public of the locality. 3. The fourth defendant opposed the petition by filing a counter affidavit. He has averred in the affidavit that the school is not located within 200 metres from the proposed bar attached hotel, the actual distance from the school to the proposed bar is 260 metres through the shortest route, the distance requires to be taken upto the proposed place for the bar and not to a corner of the ground floor of the building. The bar is to be located in a room in the first floor and therefore the distance upto that room including the staircase and and reception counter has to be taken into account. Opening of the bar in the first and second floors of the Mannil Buildings therefore will be in conformity with the provisions of the Foreign Liquor Rules. The Excise Officials after inspection were satisfied that the proposed bar could not be said to be located within 200 metres from the school. Opening of the bar in the first and second floors of the Mannil Buildings therefore will be in conformity with the provisions of the Foreign Liquor Rules. The Excise Officials after inspection were satisfied that the proposed bar could not be said to be located within 200 metres from the school. On physical verification they have found that the school is situated at a place more than 200 metres away from the proposed hotel. There is no church, mosque or temple within 200 metres from the proposed hotel. Balance of convenience therefore is in favour of the defendants. The fifth defendant, the Excise Commissioner virtually has reiterated the contentions of the fourth defendant. He says that the Assistant Commissioner made a local inspection and only on his being satisfied that the proposed bar is going to be located more than 200 metres away from the school, the Department decided to issue the licence. In fact the hotel is about 220 metres away from the school. 4. The report of the commissioner is Ext. Cl whereas Ext Cl (a) is the plan. It is seen from Ext. C1 and C1 (a) that the Mannil Buildings where the bar attached hotel is to be started, is located on the Northern side of Mallapally-Anickadu road and the commissioner has noted the distance from the school upto the corner of the Mannil Buildings as 133 metres. However there is no entrance to the first and second floors of the building at that point. To reach the proposed hotel and bar one has to cover another 42 metres along the main road to the East and take a turn to the North and from there take the pathway through the rubber estate belonging to a private party situated to the East of the property where Mannil Buildings is situated. 5. Taking these aspects and Sub-rule 3 of of R.13 and Note 2 appended thereto of The Foreign Liquor Rules into account the trial court granted the temporary injunction. The trial court accordingly allowed the application. On appeal the Appellate Court by the order under attack reversed the order and dismissed the application. 6. The question arising for consideration is whether the hotel which has applied for The Foreign Liquor 3 Hotel (Restaurant) Licence is located within 200 metres from the Government St. Mary's L. P. School. The trial court accordingly allowed the application. On appeal the Appellate Court by the order under attack reversed the order and dismissed the application. 6. The question arising for consideration is whether the hotel which has applied for The Foreign Liquor 3 Hotel (Restaurant) Licence is located within 200 metres from the Government St. Mary's L. P. School. The answer depends upon the construction of the provisions contained in Clause.3 of R.13 of The Foreign Liquor Rules. The relevant rule as it stands now reads: 13. Licences for possession use or Sale. Licences for the possession and sale of foreign liquor or for possession or use of foreign liquor shall be of the following descriptions and in the forms appended hereto. (3) Foreign Liquor 3 Hotel (Restaurant) Licences. Licence in this Form may be issued by the Excise Commissioner to recognised Hotels or Restaurants where the privilege of sale of Foreign Liquor is such Hotels or Restaurants has been purchased on payment of an annual rental of Rs 1,50,000. But no such licence shall be issued to Hotels or Restaurants which are located within 200 metres from any educational institution, temple, church, mosque or burial ground". The Note added to this rule reads: "Note: In calculating the distance, the basis will be the shortest pathway/lane/ street/road generally used by the Public". 7. The Rule provides that no Foreign Liquor 3 Hotel (Restaurant) Licence shall be issued if the Hotel/ Restaurant is located within 200 metres from any educational institution, temple, church etc. What is contemplated under the Rule therefore is that the Hotel/ Restaurant which has applied for the licence, shall not be located within 200 metres from any educational institution etc ; and not that, the distance of the passage, access or approach to the Hotel/ Restaurant shall be more than 200 metres from the educational institution, as contended for by respondents 1 to 5. Two expressions in this Rule are significant, "within" and "located". 'Within' means' inside the limits of (Blacks Law Dictionary) and going by the Dictionary meaning (Concise Oxford Dictionary) 'located' means "established in a place, locality or area". Two expressions in this Rule are significant, "within" and "located". 'Within' means' inside the limits of (Blacks Law Dictionary) and going by the Dictionary meaning (Concise Oxford Dictionary) 'located' means "established in a place, locality or area". The cumulative effect of these two expressions therefore is that no Foreign Liquor 3 Hotel (Restaurant) Licence shall be given if the Hotel (Restaurant) which has applied for the licence, is established or accommodated in a building inside the limits of 200 metres from the school, church, temple etc. From which side (that is East, West, North or South) has the Hotel (Restaurant) entrance is irrelevant to be taken into account while determining the place or area where it is located or established. In other words to determine the question where exactly is the building accommodating the Hotel (Restaurant) is located, it is unnecessary to probe into the question as to the passage, access or approach to the said Hotel (Restaurant). Construing sub-rules 1 and 2 of R.6 of The Abkari Shops (Disposal in Auction) R.1974 containing a clause that "....no shop other than Foreign Liquor wholesale shop shall be located in, or removed to a place within 400 metres from any school, temple etc...", similar to the clause contained in the Rule considered here, namely, "no Foreign Liquor 3 Hotel (Restaurant) Licence shall be issued to Hotels or Restaurants which are located within 200 metres from any school, church, temple etc.. "this court in Lukose v. Karthyayani (1980 KLT. 635) has observed that: " the distance between the school and the building in which the toddy shop is to be conducted is outside the distance of 400 metres measured in a straight line on a horizontal plane or as the crow flies". Emphasis supplied) This principle "as the crow flies" governing the calculation of the distance between the school and the building where the liquor shop is located, was not always possible to apply and therefore the Government clarified the position by an amendment of the Rule by which the "Note" referred to above was also added. After the introduction of the 'Note', in calculating the distance between the school and the building where the bar attached Hotel (Restaurant) is established the basis shall be not "as the crow flies" but will be the shortest pathway/lane/street/road generally used by the public. The pathway/street etc. shall be one generally used by the public. After the introduction of the 'Note', in calculating the distance between the school and the building where the bar attached Hotel (Restaurant) is established the basis shall be not "as the crow flies" but will be the shortest pathway/lane/street/road generally used by the public. The pathway/street etc. shall be one generally used by the public. Thus, when once the building accommodating the hotel is located, then the distance between the educational institution and the said building has to be calculated keeping in view the content of the 'Note' in order to find out whether the Hotel (Restaurant) is located within 200 metres from the school/church etc. There is therefore no need to determine the length of the approach road or the pathway to the hotel provided for by the hotler. The distance from the school to the building where the Hotel is established, (it is conceded that the hotel is accommodated in the first and second floor of the building) along the pathway generally used by the public, is only 133 metres according to the report of the commissioner. That means the Hotel in question which has applied for the licence is located within 200 metres from the school and as such the licence applied for is liable to be rejected. 8. Assuming that the distance between the building accommodating the Hotel and the educational institution is to be calculated taking into account the passage or approach to the Hotel as contended for by the defendants, even then in my view the Hotel cannot be said to be located outside the 200 metres limit. A reference in this connection to the following statements is relevant. We have already seen that no Foreign Liquor 3 Hotel (Restaurant) Licences shall be issued if the Hotel/ Restaurant is located within 200 metres from any educational institution etc. and that in calculating the distance, the basis shall be the shortest pathway, lane, street or road generally used by the public. The 'Note' stipulates two conditions: (1) the pathway, lane, street or road shall generally be used by the public; (2) in calculating the distance between the educational institution and the Hotel only the shortest pathway, street or road shall be taken into account. The entire distance of 200 metres roust therefore be along the pathway, lane, street or road generally used by the public. The entire distance of 200 metres roust therefore be along the pathway, lane, street or road generally used by the public. The word 'general' means: "open or available to all, as opposed to select; obtaining commonly, or recognised universally, as opposed to particular; universal or unbounded, as opposed to limited; comprehending the whole or directed to the whole, as distinguished from anything applying to or designed for a portion only". Blacks Law Dictionary. The word 'generally' therefore means totally or universally in contra distinction to particularly or specifically. To put it differently, without reference to or disregarding particular persons. The pathway, lane, street or road therefore must be one commonly used by the public and not by a section of the public who would visit the bar attached Hotel/ Restaurant. That means the pathway, lane, street or road that leads to the Hotel roust be one that is commonly used by every member of the public. This right of way in law is called public right of way. This right of way can be created by statute or can arise from the dedication of soil by its owner to the use of the public. The dedication may be express or implied. There cannot however, have any inference of an implied dedication from the fact that certain persons have been using it as a pathway. (See Jai Sukh v. Manohar Das, AIR. 1967 H. P.15). In other words public rights are acquired by the public at large through dedication or legislative enactment and are not conferred for the benefit of any specified section of the public, caste or community, and are to be enjoyed independently of any dominant tenement. "There can be no such thing in law as a public right of way, constituted by dedication to only a section of the public". (See Muhammed Rustam Ali Khan v. Municipal Committee of Karnal, AIR. 1920 PC. 43). Even a private pathway can acquire the status of a public way provided the owner of the private way allows the public at large to pass over his land and convert it into a public way. But such public way can come into existence only if the individual submits to such user by the public for a sufficiently long time. Even a private pathway can acquire the status of a public way provided the owner of the private way allows the public at large to pass over his land and convert it into a public way. But such public way can come into existence only if the individual submits to such user by the public for a sufficiently long time. Under such circumstances the law would presume from his conduct that he had dedicated the land for such user But here, even on the showing of the defendants, the pathway passing through the rubber estate of the private party does not form part of the pathway that leads to the point from where that pathway through the rubber estate, starts. The plaintiff nor the fifth defendant the Excise Commissioner-has the case that this pathway is a pathway generally used by the public. They have also no case that the owner of the estate has dedicated the land over which the alleged pathway passes, for the use of the public. For that matter there is nothing on record to show that it is a public pathway. This pathway at most, is only a private pathway which, going by the averments in the affidavit filed by the fifth defendant, is being used by the defendants 1 to 4 and some other persons residing to the West of the building in question. That user by itself will not make this private pathway a public pathway. The distance from the school to the entrance used by the occupant on the ground floor of Manni! Buildings is only 133 metres. That pathway indisputably is a pathway generally used by the public. If the length of the private pathway is excluded, then the location of the bar will be within 200 metres from the school. 9. The above position notwithstanding the District Court, entering the following findings, has reversed the order of the trial court granting the temporary injunction. The findings are: "In this respect I have to say that when there is a restrictive interpretation of a rule, then the person affected by such restriction shall be entitled to a liberal construction regarding his right and in that respect when there are two interpretations possible, the one in favour of him shall be taken... The findings are: "In this respect I have to say that when there is a restrictive interpretation of a rule, then the person affected by such restriction shall be entitled to a liberal construction regarding his right and in that respect when there are two interpretations possible, the one in favour of him shall be taken... Like tax avoidance a party has got a right to make the entry in such a way that the distance from the educational institution is actually above 200, metres. As pointed out earlier, if a person constructs a building at a remote corner of his property in order to escape the rules, the question is whether, such construction is to be found fault with as a deliberate attempt to escape the rule. I think it is not. In like manner if the entry to a Bar is provided in such a way as to make the distance more than 200 metres from the basic point, such attempts need not be found fault with". Tax avoidance or evasion stands condemned by the Supreme Court. (See Mcdowell & Co. v. I.T.O., 154 ITR 148). Relying on a principle which no more is the law, the Appellate Court has given the stamp of approval to the device adopted by defendants I to 4 to circumvent the provisions contained in the Licensing Rules. This approach to the issue adopted by the Appellate Court is also contrary to the ruling of this court in 1987 (1) KLT SN 43 Case No. 57. This court has stated the law thus: "The licensing authorities should remind themselves, at least occasionally, of the policy imperative contained in Art.37 and 47 of the Constitution of India that the State is bound to discourage consumption of alcohol except for medicinal purposes, rather than proliferate trade in those deleterious substances with an eye only on the revenue that the trade may yield. It if, therefore, incumbent upon them to enforce the restrictive provisions scrupulously rather than gloss over the statutory requirements as surplusages. The facts disclosed in the pleadings in this litigation make this caution all the more important, since it appears that the official machinery administering the Abkari Act and the Rules thereunder have played into the hands of the licensees The licensing authority has an obligation to consider the grant of licence objectively with reference to public interest or expediency. The facts disclosed in the pleadings in this litigation make this caution all the more important, since it appears that the official machinery administering the Abkari Act and the Rules thereunder have played into the hands of the licensees The licensing authority has an obligation to consider the grant of licence objectively with reference to public interest or expediency. Absence of consideration of these aspects has the effect of vitiating the grant of such licence". (emphasis supplied) The order of the District Judge therefore is liable to be set aside. 10. The learned counsel for respondents 1 to 4 then faintly contended that the petitioner-plaintiff has no right to challenge the proceedings by filing revision under S.115 C. P. C. granting the licence. May be that be has no such right (this question, I do not propose to decide in this revision, it is left open); but when once such issues as the one on band come to the notice of this court, in my judgment, this court has the power to suo mote revise the order. It is all the more so because the issue is one where the public in general are interested. I am fortified in this view by a decision of the Supreme Court, Visesh Kumar v. Shanti Prasad (AIR. 1980 SC 892) and also Ramunni v. Govindan, AIR. 1959 Ker. 329, Somasundaram v. Muthumanicka (AIR. 1932 Mad. 714)., Hullalagar Devasthanam v. Baskaran Pillai. (AIR. 1942 Mad. 741. Percy Wood v. Mrs. Samuel AIR. 1943 Nagpur 333, M.M. Kathanar v. K.E. Kathanar. AIR. 1954 T.C.178 (FB) and Avirah Ouseph v. Ammukutty Amma, AIR. 1965 Ker. 179. The order under attack for the reasons stated above is set aside and the order of the trial court is restored. Accordingly the injunction sought forts granted. The C.R.P.s accordingly are allowed with costs. Lawyer's fee: 1500/-.