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2019 DIGILAW 349 (KER)

Subash Soman v. State of Kerala

2019-04-11

ANIL K.NARENDRAN

body2019
JUDGMENT : 1. The petitioner, who is stated to be the Managing Director of M/s. Maramon Hotel and Resorts (P) Ltd., has been issued with Ext.R3(a) FL-3 license dated 10.07.2018 (FL-3/KLM- 39/2018-19) by the 2nd respondent Excise Commissioner to vend foreign liquor in his hotel 'Rohini Hills' (building Nos. VPXVII/590, 591) at Kunnicode. 2. The petitioner filed Ext.P3 application dated 03.08.2018 before the 2nd respondent Excise Commissioner, through the 3rd respondent Deputy Excise Commissioner, Kollam, seeking permission to open the main entrance to the hotel from NH-744 (which is closed with brick masonry). The 3rd respondent forwarded Ext.P3 application to the 2nd respondent Excise Commissioner, along with a letter dated 13.09.2018, pointing out that the shifting of the gate to the proposed place will amount to violation of distance rule and hence recommended to reject that application. The 2nd respondent, after examining the matter rejected Ext.P3 application, stating that the shifting of the existing gate of the hotel to the proposed site will amount to violation of the distance rule. The petitioner filed Ext.P5 representation before the 1st respondent State seeking interference and thereafter filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P4 order of the 2nd respondent Excise Commissioner and grant him permission to re-open the main gate of hotel 'Rohini Hills', for proper running, in the interest of tourists arriving in the locality; and a writ of mandamus commanding the 1st respondent State to dispose of Ext.P7 representation dated 29.11.2018, in the light of Ext.P6 judgment of this Court dated 09.03.2012 in W.P.(C)No.32560 of 2009. 3. On 12.12.2018, when this writ petition came up for admission, the learned Senior Government Pleader sought time to get instructions. 4. By the order dated 08.01.2019 in I.A.No.1 of 2019, Shri. K.R. Arun Krishnan, a lawyer practising before this Court, was appointed as Advocate Commissioner, who was directed to conduct an inspection of the petitioner's hotel 'Rohini Hills' at Kunnicode, with notice to the learned counsel for the petitioner and also to the learned Senior Government Pleader, and submit a report before this Court within the time limit specified in that order, with specific reference to the matters enumerated in paragraph 4 of the affidavit accompanying to that interlocutory application. 5. 5. In the order dated 08.01.2019, it was made clear that, it would be open to both sides to submit work memo to the Advocate Commissioner and that, a copy of the building plan approved by the Local Self Government Institution shall be handed over to the Advocate Commissioner, so as to enable him to conduct a proper inspection. The remuneration payable to the Advocate Commissioner was fixed, inclusive of the travelling expenses and the expenses for availing the service of any technically qualified person for measuring the distance and preparing a detailed sketch. The learned Senior Government Pleader was directed to ensure that the officials from the office of the 3rd respondent Deputy Excise Commissioner render necessary assistance to the Advocate Commissioner. 6. The Advocate Commissioner conducted inspection on 14.01.2019 and submitted a report dated 18.01.2019, producing therewith Annexure B location sketch prepared by one Dr.M.M.Khan, Chartered Engineer, Kollam and Annexure C series of photographs. 7. On 05.02.2019, a statement has been filed by the 3rd respondent Deputy Excise Commissioner, opposing the reliefs sought for in this writ petition, producing therewith the FL-3 licence dated 10.07.2018 issued to the petitioner as Ext.R3(a); the photographs of the main gate and shatabthi smaraka gate of Government L.P. and Pre-Primary School, Kunnicode as Exts.R3(b) and R3(c); the photographs of the petitioner's hotel 'Rohini Hills' as Ext.R3(d); and the photographs of the pathway leading to the existing gate of the petitioner's hotel as Ext.R3(d). The 3rd respondent has also filed an objection dated 30.01.2019 to the report of the Advocate Commissioner, producing therewith Ext.R3(f) sketch showing the gate to gate distance as per his measurement. 8. On 05.02.2019, the petitioner has filed I.A.No.2 of 2019 seeking an order to accept as Ext.P8, a report dated 16.01.2019 prepared by Dr.M.M.Khan, the Chartered Engineer, who prepared Annexure B location sketch produced along with the report of the Advocate Commissioner. In the affidavit accompanying to I.A.No.2 of 2019 it is averred that, the report prepared by the Chartered Engineer for filing before this Court was submitted to the Advocate Commissioner, and a copy of that report given to the learned counsel for the petitioner is produced as Ext.P8. In the affidavit accompanying to I.A.No.2 of 2019 it is averred that, the report prepared by the Chartered Engineer for filing before this Court was submitted to the Advocate Commissioner, and a copy of that report given to the learned counsel for the petitioner is produced as Ext.P8. On 06.02.2019, the petitioner has filed a reply affidavit dated 06.02.2019 to the statement filed by the 3rd respondent and another reply affidavit dated 06.02.2019 to the objection filed by the 3rd respondent to the report of the Advocate Commissioner. 9. Heard the arguments of the learned Senior Counsel/the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for the respondents. 10. The issue that arises for consideration in this writ petition is as to whether any interference under Article 226 of the Constitution of India is warranted on Ext.P4 order dated 27.10.2018 of the 2nd respondent Excise Commissioner, whereby the request made by the petitioner in Ext.P3 application dated 03.09.2018 seeking permission to open the main entrance to the hotel from NH-744 (which is closed with brick masonry, as evident from Annexure C/2 photograph produced along with the report of the Advocate Commissioner) stands rejected, stating that the shifting of the existing gate of the hotel to the proposed site will amount to violation of the distance rule. 11. Going by the averments in paragraph 2 of the writ petition, the 2nd respondent granted FL-3 licence to the petitioner's hotel, after satisfying all the requirements for the grant of such licence. But, the main gate of the hotel is directed to be kept locked due to the alleged distance barrier from a Pre-Primary School in that area, as provided under the Foreign Liquor Rules, 1953. In paragraph 3 of the writ petition, it is averred that the 3rd respondent Deputy Excise Commissioner directed the petitioner to close down the main gate on the ground that the distance from the newly put up 'memorial gate' of Kunnicode Government Pre-Primary School is only 198.205 meters. In fact the distance measured from the main gate of the said school to the gate of the hotel is 212 meters. This is admitted by the Excise Authorities and is clear from the rough sketch prepared by the petitioner as Ext.P1. In fact the distance measured from the main gate of the said school to the gate of the hotel is 212 meters. This is admitted by the Excise Authorities and is clear from the rough sketch prepared by the petitioner as Ext.P1. Along with the writ petition, the petitioner has also produced Ext.P2 rough sketch (which is in fact a site plan, which forms part of the building permit) in order to show that the existing entrance to the hotel through a small gate adjacent to the main gate (which is closed down) is not comfortable, which causes difficulties to the customers coming in vehicles. 12. The specific stand taken in the statement filed by the 3rd respondent Deputy Excise Commissioner is that, the petitioner had obtained FL-11 licence to vend Beer and Wine in his hotel 'Rohini Hills' as per order No.XC7-23908/2013 dated 28.01.2015 of the 2nd respondent Excise Commissioner and he had been issued with licence No.FL-11-KLM-61/2016-16. In that application, the petitioner had shown the existing gate as the main entrance to his hotel. Later, the petitioner applied for fresh FL-3 licence for his hotel 'Rohini Hills' with three star classification, as per online application No.FL3L/2018/00072. In that application as well, the petitioner had shown the existing gate as the only entrance to his hotel. While applying for FL-3 licence, the gate-to gate distance from the nearest objectionable sites, i.e., Kunnicode Muslim Jama-at Mosque and Shatabthi Smaraka Government L.P. School was mentioned as 205 meters and 212 meters respectively. As the hotel is situated in an unobjectionable site, after observing all legal formalities, the petitioner has been granted with Ext.R3(a) FL-3 licence on 10.07.2018, by the 2nd respondent Excise Commissioner. The 3rd respondent would point out that, in order to obtain FL-11 licence, the petitioner permanently closed the gate of the building which was opening towards National Highway and used the presently approved grate as the main entrance to the hotel. After obtaining FL-3 licence, the petitioner submitted Ext.P3 application to shift the entrance of the hotel. If the shifting of entrance, as sought for by the petitioner is allowed, it will certainly violate the distance rule, since the gate to gate distance from shatabthi smaraka gate of the Government L.P. School, Kunnicode to the petitioner's hotel will only be 185.6 meters. In such a situation, the FL-3 licence issued to the petitioner's hotel is liable to cancelled. In such a situation, the FL-3 licence issued to the petitioner's hotel is liable to cancelled. 13. Along with the statement filed by the 3rd respondent, a photograph of the main gate on the northern side of the Government L.P. and Pre-Primary School, Kunnicode is produced as Ext.R3(b). Two photographs of shatabthi smaraka gate on the eastern side of the said school, facing Pathanapuram - Kunnicode Road, are produced as Ext.R2(c). Three photographs of the petitioner's hotel are produced as Ext.R3(d) in order to show that the proposed main gate is permanently closed with boundary wall. Two photographs of the existing entrance to the petitioner's hotel through a pathway adjacent to the nearby petrol pump are produced as Ext.R3(e). 14. Though the petitioner has filed a reply affidavit dated 06.02.2019, he has not denied the specific allegations in the statement filed by the 3rd respondent that he has submitted application in the year 2015 for FL-11 licence and thereafter in the year 2018 for FL-3 licence, showing the existing gate as the only entrance to his hotel and that, while applying for FL-3 licence, the gate to gate distance from the nearest objectionable sites, i.e., Kunnicode Muslim Jama-at Mosque and Shatabthi Smaraka Government L.P. School was mentioned as 205 meters and 212 meters respectively. Therefore, the averment in paragraph 2 of the writ petition that, while granting FL-3 licence, the petitioner was directed to kept locked the main gate of the hotel due to the alleged distance barrier from the Government Pre-Primary School in that area, is factually incorrect. 15. In paragraph 3 of the writ petition that it is averred that the 3rd respondent Deputy Excise Commissioner directed the petitioner to close down the main gate on the ground that the distance from the newly put up 'memorial gate' of Kunnicode Government Pre-Primary School is only 198.205 meters. As can be seen from Annexure C photograph of shatabthi smaraka gate of the Government L.P. and PreW. Primary School, Kunnicode, produced along with the report of the Advocate Commissioner, shatabthi smaraka gate was put up in the year 2009, in the centenary year of establishment of that school (which is established in the year 1909). The said fact is also evident from Ext.R3(c) photograph, produced along with the statement filed by the 3rd respondent. 16. Primary School, Kunnicode, produced along with the report of the Advocate Commissioner, shatabthi smaraka gate was put up in the year 2009, in the centenary year of establishment of that school (which is established in the year 1909). The said fact is also evident from Ext.R3(c) photograph, produced along with the statement filed by the 3rd respondent. 16. In the affidavit in support of I.A.No.1 of 2019, which is an application filed by the petitioner seeking an order to appoint an Advocate Commissioner, it is averred that Government Pre-Primary School, Kunnicode, which is having only limited number of students has two gates, one main gate for ingress and egress to the school and a memorial gate which is locked. The distance from the memorial gate of Government Pre-Primary School to the main gate of the petitioner's hotel is 198.205 meters. If the measurement is taken from the main gate and memorial gate of the Primary School to the bar gate of the hotel, the distance is much more than 200 meters and there is no violation of the provisions of Rule 13 of the Foreign Liquor Rules. Therefore, there is no necessity to close the main gate of the hotel. 17. In paragraph 4 of the affidavit in support of I.A.No.1 of 2019, the petitioner sought for appointment of an Advocate Commissioner to find out the true facts as stated by the petitioner in the writ petition with special reference to the following; (i) The actual distance from the main gate of the Government Pre-Primary School, Kunnikode to the main gate and also the bar gate of the hotel belonging to the petitioner. (ii) The actual distance from the memorial gate of the Government Pre-Primary School, Kunnikode to the main gate and also the bar gate of the hotel belonging to the petitioner. (iii) The actual distance from the two gates of the Government Pre-Primary School to the 'vending point' of the bar of the hotel belonging to the petitioner. (iv) Verify and report such other matters as may be pointed out at the time of inspection. 18. By the order dated 08.01.2019 in I.A.No.1 of 2019, the Advocate Commissioner was directed to conduct an inspection of the petitioner's hotel 'Rohini Hills' at Kunnicode, and submit a report before this Court, with specific reference to the matters enumerated in paragraph 4 of the affidavit accompanying to that interlocutory application. 18. By the order dated 08.01.2019 in I.A.No.1 of 2019, the Advocate Commissioner was directed to conduct an inspection of the petitioner's hotel 'Rohini Hills' at Kunnicode, and submit a report before this Court, with specific reference to the matters enumerated in paragraph 4 of the affidavit accompanying to that interlocutory application. In the said order it was made clear that, it would be open to both sides to submit work memo to the Advocate Commissioner and that, a copy of the building plan approved by the Local Self Government Institution shall be handed over to the Advocate Commissioner, so as to enable him to conduct a proper inspection. The remuneration payable to the Advocate Commissioner was fixed, inclusive of the travelling expenses and the expenses for availing the service of any technically qualified person for measuring the distance and preparing a detailed sketch. 19. The Advocate Commissioner in his report dated 18.01.2019 has reported as follows; (i) The distance from the main gate situated on the northern boundary of Govt. Pre-Primary School to the main gate of the hotel (seen closed and entry obstructed by constructing a wall with bricks) is 263.30 meters. (ii) The distance from the memorial gate situated on the northern boundary of Govt. Pre-Primary School to the main gate of the bar (seen closed and entry obstructed by constructing a wall with bricks) is 200.30 meters. (iii) The distance from the main gate situated on the northern boundary of Govt. Pre-Primary School to the bar gate is 310.30 meters. (iv) The distance from the memorial gate situated on the northern boundary of Govt. Pre-Primary School to the bar gate is 247.05 meters. (v) The distance from the main gate situated on the northern boundary of Govt. Pre-Primary School to the vending point of the bar is 316.80 meters. (vi) The distance from the memorial gate situated on the northern boundary of Govt. Pre-Primary School to the vending point of the bar is 253.55 meters. 20. The Advocate Commissioner has also reported that none of the parties have served a work memo for reporting any additional points and that, Annexure B location sketch is one prepared by the Chartered Engineer. Pre-Primary School to the vending point of the bar is 253.55 meters. 20. The Advocate Commissioner has also reported that none of the parties have served a work memo for reporting any additional points and that, Annexure B location sketch is one prepared by the Chartered Engineer. The photographs of the memorial gate and main gate of Government Pre-Primary School, Kunnicode and also the main entrance to the petitioner's hotel from NH-744, which is closed with brick masonry, are produced as Annexure C. Though it is reported that the Advocate Commissioner identified the property based on a copy of the approved building plan handed over to him at the time of inspection, the same is not enclosed along with the report of the Advocate Commissioner dated 18.01.2019. 21. As per the report of the Advocate Commissioner, the distance from the memorial gate, i.e., shatabthi smaraka gate of the school on the eastern boundary (wrongly stated as northern boundary in the report) to the main gate of the petitioner's hotel, which is closed by constructing a wall with bricks, is 200.30 meters. In Annexure B location sketch, which is one prepared by Dr.M.M.Khan, the Chartered Engineer, the distance from the centre (middle point) of shatabthi smaraka gate of the school to the centre of the main gate of the petitioner's hotel (which is closed with brick masonry, as evident from Annexure C/2 photograph) through the central line of Pathanapuram - Kunnicode Road towards Shastri Junction in NH-744, and then through the central line of NH- 744, is marked as 200.30 meters. As per the report of the Advocate Commissioner, the measurements were taken through 'true safe and shortest pedestrian pathway' observing all civic and traffic rules. 22. Along with I.A.No.2 of 2019, the petitioner has produced as Ext.P8, a report dated 16.01.2019 prepared by Dr.M.M.Khan, the Chartered Engineer, who prepared Annexure B location sketch produced along with the report of the Advocate Commissioner. According to the petitioner, the said report prepared by the Chartered Engineer for filing before this Court was submitted to the Advocate Commissioner, and a copy of that report was given to the learned counsel for the petitioner. According to the petitioner, the said report prepared by the Chartered Engineer for filing before this Court was submitted to the Advocate Commissioner, and a copy of that report was given to the learned counsel for the petitioner. In paragraph 8 of the said report dated 16.01.2019, the Chartered Engineer has stated that, a pedestrian proceeding towards the petitioner's hotel from the gate of the Government school will safely and conveniently choose the pathway (i.e., road margin) along the western side of Pathanapuram Road and then cross the National Highway at the pedestrian cross on the western side of Sasthri Junction and then proceed along the road margin on the southern side of National Highway to reach the northern boundary of the hotel. In the report, it has also been stated that, the said pathway has been approved by the Advocate Commissioner for finalising the measurement. The so called pedestrian cross on the western side of Sasthri Junction finds no place in Annexure B location sketch. Similarly, the existence of such a pedestrian cross on the western side of Sasthri Junction finds no place in the report of the Advocate Commissioner. 23. As evident from Ext.P2 rough sketch produced by the petitioner, which is in fact a site plan, which forms part of the building permit, there is a bell-mouth on the eastern road margin of Pathanapuram Road at Sasthri Junction. Therefore, if a pedestrian proceeding towards the petitioner's hotel from shatabthi smaraka gate of the Government School chooses the road margin on eastern side of Pathanapuram Road, by crossing Kunnicode - Pathanapuram PWD Road (in front of that gate) and then proceeds towards east through the bell-mouth on the eastern road margin of that PWD Road, and proceeds towards east through the road margin on the northern side of NH-744, and then crosses NH-744 in front of the main gate of the hotel, which is presently closed with brick masonry, the gate to gate distance will be less than 200 meters. A pedestrian choosing the eastern road margin of Kunnicode-Pathanapuram PWD Road and the northern road margin of NH-744 can also avoid the crossing of NH-744 at Sasthri Junction. A pedestrian choosing the eastern road margin of Kunnicode-Pathanapuram PWD Road and the northern road margin of NH-744 can also avoid the crossing of NH-744 at Sasthri Junction. A mere perusal of Ext.P2 site plan, which forms part of the building permit, drawn at a standard metric scale of 1:200, would make it explicitly clear that the gate to gate distance from shatabthi smaraka gate of the Government School to the main gate of the petitioner's hotel (presently closed with brick masonry) through the eastern road margin of Kunnicode-Pathanapuram PWD Road and the road margin on the northern side of NH-744 will certainly be within prohibited distance, i.e., less than 200 meters, since the gate-to gate distance measured through the road margin on the western side of the PWD road and the road margin on the southern side of NH-744 is only 200.30 meters. In Annexure B location sketch, the Chartered Engineer omitted to note the bell-mouth on the eastern road margin of Pathanapuram Road at Sasthri Junction. 24. As evident from Ext.P2 site plan, which forms part of the building permit, the western boundary of the petitioner's hotel is abutting a stream. The main gate of the petitioner's hotel (presently closed with brick masonry) is approximately 20.76 meters away from that stream and the width of that gate is 8.20 meters. Therefore, even if the gate to gate distance from the centre (middle point) of shatabthi smaraka gate of the Government school to the centre of the main gate of the petitioner's hotel is taken as 200.30 meters as shown in Annexure B location sketch prepared by the Chartered Engineer, the pillar on western side of the main gate will be at a distance of approximately 196.2 meters (200.30 - 4.10) from the centre (middle point) of shatabthi smaraka gate of the Government school. The width of shatabthi smaraka gate of the Government school is not shown in Annexure B location sketch. If the approximate width of that gate is taken as 2 meters [see: Annexure C and Annexure R3(c)-1 photographs] the pillar on the southern side of shatabthi smaraka gate of the Government school will be at a distance of approximately 195.2 meters (196.2 - 1) from the pillar on western side of the main gate of the petitioner's hotel. 25. If the approximate width of that gate is taken as 2 meters [see: Annexure C and Annexure R3(c)-1 photographs] the pillar on the southern side of shatabthi smaraka gate of the Government school will be at a distance of approximately 195.2 meters (196.2 - 1) from the pillar on western side of the main gate of the petitioner's hotel. 25. In State of Kerala v. Sukumaran [ 1988 (2) KLT 261 ], in the context of clause (b) of sub-rule (2) of Rule 6 of the Kerala Abkari Shops (Disposal in Auction) Rules, 1974, which provides for a statutory prohibition for grant of licence for running a foreign liquor shop within 400 metres from any educational institution, temple, church, mosque or burial ground, the Division Bench held that the object of the rule is to ensure that the student community is not exposed to the vice of consumption of liquor. The Division Bench noticed that, consumption of liquor is constitutionally recognised as a vice is clear from the fact that it is one of the directive principles contained in Article 47 of Part IV of the Constitution of India. Paragraph 3 of the said decision reads thus; “3. As the Division Bench has, in W.A.No.36/88, already affirmed the decision of the learned single Judge, even if the delay in filing the appeal is condoned in this case, this appeal has to be dismissed on merits. We fail to see why it become necessary for the State Government to prefer an appeal against the judgment of the learned single Judge, that too after the judgment of the learned single Judge stood affirmed by the decision of the Division Bench in W.A.No.36/88, filed by the aggrieved party. Counsel for the State however submitted that the State is interested in the principle of law being settled namely, as to whether a hostel attached to an educational institution can be regarded as an educational institution for the purpose of the Abkari Rules. In other words, the State is interested in taking the stand that though no foreign liquor retail shop can be granted within the distance of 400 metres from an educational institution, that it is permissible for the Stale to grant such a licence for a foreign liquor retail shop within a distance of 400 metres from the hostel attached to an educational institution. In other words, the State's concern and interest is in preserving its freedom or discretion to grant licence to a liquor shop to be located within a distance of 400 metres from a hostel attached to an educational institution. We fail to see how this would be consistent with the object of the rule. The object of the rule is to ensure that the student community is not exposed to the vice of consumption of liquor. That consumption of liquor is constitutionally recognised as a vice is clear from the fact that it is one of the directive principles contained in Article 47 of Part IV of the Constitution. The State is required to strive to reach this constitutional goal and not function in a reverse direction. What the State is interested in is in taking the foreign liquor shop to a place nearer to the hostel. A foreign liquor retail shop is not only a place where foreign liquor is sold but also a place where it is allowed to be consumed. We are shocked that the State does not feel concerned about protecting the student community from this vice inspite of the constitutional mandate.” (underline supplied) 26. The FL-3 licence granted to the petitioner's hotel is one issued under sub-rule (3) of Rule 13 of the Foreign Liquor Rules, 1953. As per sub-rule (3) of Rule 13, Foreign Liquor 3 Hotel (Restaurant) license 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 the 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.28,00,000/-. However, no such license shall be issued to hotels if located within 200 meters from any educational institution, temple, church, mosque, burial ground or Scheduled Caste/Scheduled Tribe colony. As per the proviso to sub-rule (3) of Rule 13, where the Commissioner is satisfied that the conditions specified in this sub-rule are not capable of being imposed on the restaurants situated in airports, railway stations and such other places, he may, with the previous sanction of Government, relax any of the said conditions or impose any new conditions. 27. As per the proviso to sub-rule (3) of Rule 13, where the Commissioner is satisfied that the conditions specified in this sub-rule are not capable of being imposed on the restaurants situated in airports, railway stations and such other places, he may, with the previous sanction of Government, relax any of the said conditions or impose any new conditions. 27. As per Note (1) to sub-rule (3) of Rule 13 of the Foreign Liquor Rules, 'Church' means a public place where prayer is offered by Christians. 'Educational Institutions' means schools or colleges under the control of the State Education Department or Central Board of Education and which has been duly recognised by the Government. 'Mosque' means public place where prayer is offered by Muslims. 'Temple' means a place of public and religious worship by Hindus were diety is installed under a building and includes a mutt also. As per the first proviso to Note (1) to sub-rule (3) of Rule 13, any structure on the road side pavement or in a compound of a private building with or without diety shall not be considered as a Temple, Church or Mosque. As per the second proviso to Note (1), 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. As per Note (2) to sub-rule (3) of Rule 13, 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. The words 'and the same will be measured from gate to gate' were added in Note (2) to sub-rule (3) of Rule 13, with effect from 01.04.1993, vide G.O(P)No.30/93/TD dated 04.03.1993. 28. As per Note (2) to sub-rule (3) of Rule 13 of the Foreign Liquor Rules, in calculating the distance of 200 meters of the building where a bar attached hotel (restaurant) is established, from any educational institution, temple, church, mosque, burial ground or Scheduled Caste/Scheduled Tribe colony, the basis will be the shortest pathway/lane/street/road generally used by the public and the same will be measured from gate to gate. Therefore, once the building for accommodating a bar attached hotel is located, then the distance between that building and the nearby educational institution, temple, church, mosque or Scheduled Caste/Scheduled Tribe colony, the gate to gate distance has to be calculated through the shortest pathway/lane/street/road generally used by the public, keeping in view of the mandate of Note (2) to sub-rule (3) of Rule 13, in order to find out whether that building is located within 200 metres from the educational institution, temple, church, mosque or Scheduled Caste/ Scheduled Tribe colony. 29. In State of Kerala and others v. M. Vijaya Kumar [ 2009 (1) KHC 522 ] a Division Bench of this Court held that the Note [i.e., Note (2)] under sub-rule (3) of Rule 13 of the Foreign Liquor Rules was amended by adding the words 'and the same will be measured from gate to gate' vide notification bearing No.G.O.(P)30/93/TD dated 04.03.1993; which shows that the 'shortest distance' mentioned in the Note does not pave way to any illogical conclusions. In the said decision, the Division Bench relied on the judgment [Ext.P5] rendered by another Division Bench with reference to sub-rule (2) of Rule 6 of the Kerala Abkari Shops (Disposal in Auction) Rules, 1974, wherein it has been held that the measurement effected by the Commissioner therein from gate to gate along the foot path and through the 'zebra crossing', in conformity with the traffic rules, is perfectly in order. Paragraphs 5 and 8 of the said decision read thus; "5. After considering the rival contentions, the learned single Judge, placing reliance on the decision rendered by the Division Bench of this Court in State of Kerala vs. Sukumaran [ 1988 (2) KLT 261 ] held that the hostel is part of the educational institution and hence the distance rule contained in Rule 13(3) of the Foreign Liquor Rules very much applies to the hostel also. However, it was observed by the learned single Judge that the distance has to be measured from the 'main gate of the hostel' to the 'main gate of the hotel'. However, it was observed by the learned single Judge that the distance has to be measured from the 'main gate of the hostel' to the 'main gate of the hotel'. Taking note of the fact that the road in question has a 'central line' and also a 'zebra crossing' as divulged from Ext.P4 and relying on the mandate given by the Division Bench in Ext.P5 judgment, it was held that the distance had to be measured by taking the distance that a law abiding pedestrian would walk through, using the 'zebra cross' to reach the hotel from the hostel gate. Accordingly, the impugned order was set aside and the Writ Petition was disposed of directing that the distance from the gate of the men's hostel of the Medical College, Thiruvananthapuram to the main gate of the petitioner's hotel shall be re-measured in terms of the above observation and to decide the issue afresh within the time as specified therein. xxxxxx xxxxxx xxxxxx xxxxxx xxxxxx 8. With regard to the mode of measurement of the prohibited distance, the learned Single Judge has placed reliance on Ext.P5 judgment rendered by a Division Bench of this Court, wherein it has been categorically held that the measurement effected by the Commissioner therein from gate to gate along the foot path and through the zebra crossing, in conformity with the traffic rules, is perfectly in order. It is true that the said decision was rendered with reference to Rule 6(2) of the Kerala Abkari Shops (Disposal in Auction) Rules, 1974. But the fact remains that the crux of Note (2) to Rule 13(3) of the Foreign Liquor Rules now relied on by the State/Department was also in existence in a more or less similar form as a 'Note' after the third proviso to Rule 6(2) of the Kerala Abkari Shops (Disposal in Auction) Rules, 1974 - having had been added and notified vide G.O.(Ms.)No.136/86/TD dated 20.10.1986. The Note under Rule 13(3) of the Foreign Liquor Rules was further amended by adding the words 'and the same will be measured from gate to gate' vide notification bearing No. G.O.(P)30/93/TD dated 04.03.1993; which shows that the 'shortest distance' mentioned in the Note does not pave way to any illogical conclusions. The Note under Rule 13(3) of the Foreign Liquor Rules was further amended by adding the words 'and the same will be measured from gate to gate' vide notification bearing No. G.O.(P)30/93/TD dated 04.03.1993; which shows that the 'shortest distance' mentioned in the Note does not pave way to any illogical conclusions. Since the cause of action forming the subject matter of Ext.P5 judgment was of the year 1993 and since Ext.P5 verdict was passed by the Bench in October, 1993 (at a time when the restrictive Note was very much available under Rule 6(2) of the relevant Rules), it is rather puerile to contend by the State that the scope of such restriction is still to be unearthed. Anyhow, Ext.P5 judgment has not been challenged by the State and it has become final.” (underline supplied) 30. In Karthikeyan v. Excise Commissioner [ 2016 (3) KLT 144 ], a decision relied on by the learned Senior Counsel for the petitioner, the issue that came up for consideration before this Court, in the context of sub-rule (2) of Rule 7 of the Kerala Abkari Shops Disposal Rules, 2001 was how the distance between a liquor outlet and an educational institution with many access points to be reckoned. As per sub-rule (2) of Rule 7, no toddy shops shall be located within 400 metres and no Foreign Liquor-1 shops shall be located within 200 metres from an educational institution, temple, church, mosque, burial ground or Scheduled Caste/Scheduled Tribes colonies. In calculating distance the basis will be the shortest pathway/lane/street/road generally used by the public and the same shall be measured from gate to gate. After referring to the law laid down in Sukumaran's case (supra) and other decisions on the point, this Court held that sub-rule (2) of Rule 7 has a noble objective of ensuring that the baneful activity of liquor sale or, worse still, liquor consumption in public should not take place within a reasonable distance from a few particular places of significance: educational institutions, hospitals, places of worship, etc. Though any moral value cannot be imported into the issue, the fact remains that the serenity and safety of the educational institutions has to be zealously guarded; the young minds have to be shielded from the pernicious practices and habits. Though any moral value cannot be imported into the issue, the fact remains that the serenity and safety of the educational institutions has to be zealously guarded; the young minds have to be shielded from the pernicious practices and habits. This Court noticed that, the school in question caters to the educational needs of students from Class I to XII, who are of an impressionable age susceptible to lures and temptations of the times. And their growth into adulthood is mostly by imitation. Appreciably, the Legislature has brought on the Statute book sub-rule (2) of Rule 7 to ensure that no avoidable calamity befalls the young minds. This Court held that a building can have more than one main gate and that, if the officials are satisfied that any other gate is also used for access, it shall be considered as another 'main' gate, while they determine the distance. Once we take access or approachability as the principal criterion, the semantic niceties of the main gate and the wicket gate pale into insignificance. Any other interpretation of the rule in question will stultify the statutory scheme. 31. In Hotel Deliza Residency v. State of Kerala and others [ 2017 (4) KHC 582 ] the issue that came up for consideration before the Division Bench was as to whether the State is entitled to take recourse to Note (2) of sub-rule (1) of Rule 13 of the Foreign Liquor Rules, to calculate the distance of 500 meters from the outer edge of the National or State Highway or of a service lane along the Highway, in the absence of any other yardstick prescribed in the judgment of the Apex Court in State of Tamil Nadu v. K.Balu [ (2017) 2 SCC 281 ]. Sub-rule (1) of Rule 13 of the Foreign Liquor Rules provides for Foreign Liquor-1 Licence. Similarly, Sub-rule (3) of Rule 13 provides for Foreign Liquor-3 Licence. The Division Bench noticed that the purpose of providing 200 metres prohibited distance from the specified institutions/places, and the purpose of directing that no liquor shops shall be established within 500 metres of the outer edge of the National or State Highway or of a service lane along the highway, are totally different. The Division Bench noticed that the purpose of providing 200 metres prohibited distance from the specified institutions/places, and the purpose of directing that no liquor shops shall be established within 500 metres of the outer edge of the National or State Highway or of a service lane along the highway, are totally different. To achieve the object that liquor is sold only beyond the 200 metre prohibited distance from the specified places/institutions, it is necessary that the distance should be measured through the shortest pathway/lane/street/road used by the general public and that the measurement shall be from gate to gate. But these yardsticks for measurement of distance are not of relevance in measuring the 500 metre distance prescribed by the Apex Court, as the object that is sought to be achieved by such prescription is totally different. If the purpose that is achieved by these two prescriptions are totally different, the prescriptions contained in Foreign Liquor Rules, 1953, cannot be imported when the 500 metre specified in the judgment of the Apex Court is determined. The Division Bench held that if the distance is measured from the edge of a highway, and if the liquor outlet or the vending point per se is beyond 500 meters, it passes the judicial muster: it must be reckoned that the outlet is beyond the distance mandated by the Supreme Court. Therefore, neither the State nor the authorities subordinate thereto, could have called in aid the provisions of Note (2) to sub-rule (1) of Rule 13 while determining the eligibility of an applicant for a licence under the Foreign Liquor Rules. 32. In Vikrama Shama Shetty v. State of Maharashtra [ (2006) 6 SCC 70 ], the question that came up for consideration before the Apex Court was as to whether the revisional authority under the Bombay Prohibition Act, 1949 was right in refusing FL-III licence to the appellant on the ground that the distance between the establishment of the appellant and the entrance to the mosque is less than 75 metres and therefore, in view of what is provided in sub-rule (1C) of Rule 45 of the Bombay Foreign Liquor Rules, 1953 the licence could not have been granted. Sub-rule (1C) of Rule 45 provides that no licence under sub-rule (1B) shall be granted in respect of any hotel or restaurant which is situated within a distance of 75 metres from any educational or religious institution or from any bus stand, station or depot of the Maharashtra State Road Transport Corporation or from the boundary of any National or State highway. As per Explanation (iii) to sub-rule (1C) of Rule 45, the distance shall be measured from the midpoint of the entrance of the hotel or restaurant along with the nearest path by which the pedestrian ordinarily reaches, (a) the midpoint of the nearest gate of the institution if there is a compound wall and if there is no compound wall, the midpoint of the nearest entrance of the institution; or (b) the midpoint of the nearest gate of the bus stand, station or depot of the Maharashtra State Road Transport Corporation if there is a compound wall and if there is no compound wall, the nearest point of the boundary of such bus stand, station or depot; or (c) the boundary of the National or State highway. The Apex Court held that a bare reading of the provisions makes the position clear that the distance requirement is mandatory. 33. In Vikrama Shama Shetty's case (supra), on facts, the Apex Court noticed that as per the report of the Architect (from the panel of Architects maintained by the High Court, who had carried out measurements in terms of sub-rule (1C) of Rule 45) the hotel belonging to the appellant abuts Abhaychand Gandhi Marg and the mosque is located across the road at the junction of Abhaychand Gandhi Marg and Narsi Natha Street. The mosque has three entrances, out of which two are from a common passage having access to Narsi Natha Street. The third entrance is from Abhaychand Gandhi Marg. Though the door to the mosque was closed when the Commissioner went for inspection, the report records that the door was opened on the request of the Commissioner and it was found that it directly opened into the prayer hall of the mosque. The second entrance to the mosque from Narsi Natha Street is at a distance of 98.47 metres. The third entrance to the mosque from Abhaychand Gandhi Marg is at a distance of 60.06 metres. The second entrance to the mosque from Narsi Natha Street is at a distance of 98.47 metres. The third entrance to the mosque from Abhaychand Gandhi Marg is at a distance of 60.06 metres. In the report, the Commissioner noted that this door is generally closed and is occasionally used as an exit. The Commissioner has further recorded that during the course of inspection, he was informed that generally people enter the mosque through the second entrance. The Apex Court noticed that, from the report of the Commissioner appointed by the High Court, it is clear that two entrances to the mosque are within the mandatory distance. It may be that, as rightly noticed by the learned Single Judge, on a particular occasion one of the entrances may be closed. It has also been noted that one of the entrances is used as an exit. The stress is on the nearest distance and not the most used distance. 34. In Bhadrasenan v. State of Kerala [ 2017 (4) KLT 549 ], a Division Bench of this Court, in the context of Note - (2) to sub-rule (2) of Rule 13 of the Kerala Foreign Liquor Rules, found that, by constructing a compound wall and using as a path the space between the old compound wall shared by another property owner and the new compound wall; and by erecting a new gate almost at the rear of the hotel, just close to the parking lot, the licensee has met the distance criterion and made himself eligible to an FL-11 licence, subject to his fulfilling other eligibility criteria, if any. Paragraphs 10, 16 and 17 of the said judgment read thus; ““10. Despite the increased distance, the Excise Commissioner through Ext.P11 rejected Bhadrasenan's application. He has observed that the hotel gate, as seen from the sketch, is placed at the back of the hotel building through Bhadrasenan's own property. So it is obvious that he has shifted the gate inside his own property to get the distance of 212 metres and to circumvent the distance shown. In the end, the authority has held that that part of the path leading to the newly erected gate is not a public path. xxxxxx xxxxxx xxxxxx xxxxxx xxxxxx 16. So it is obvious that he has shifted the gate inside his own property to get the distance of 212 metres and to circumvent the distance shown. In the end, the authority has held that that part of the path leading to the newly erected gate is not a public path. xxxxxx xxxxxx xxxxxx xxxxxx xxxxxx 16. Applying the ratio of Babu John to the facts of this case, we gather from the sketch presented to us that Bhadrasenan cleared a part of the property; on one extreme, he constructed a compound wall and used as a path the space between the old compound wall shared by another property owner and the new compound wall. Almost at the rear of the hotel, he erected a new gate, just close to the parking lot. 17. Reaching up to the parking lot, a customer must have access to the hotel only through that gate. Indeed, to reach that gate, the customer should use the newly formed path. Granted the path is not part of the thoroughfare meant to be generally used by the public. But Bhadrasenan has not put curbs on anybody's accessing the road, and indeed the gate is at the far end. Thus, the gate to gate distance measured goes beyond 200 metres as has been found by the excise officials in their Ext.P10 report. Further, the undisturbed ratio of Babu John lays down that the path being owned by an individual cannot be a hindrance. Therefore, bound by the holding of Babu John, we find that Bhadrasenan has met the distance criterion and made himself eligible to an FL-11 license subject to his fulfilling other eligibility criteria, if any.” (underline supplied) 35. In the instant case, at the time of applying for FL-11 licence, in the year 2015, the petitioner closed the main gate of the hotel from NH-744, and provided access to his hotel through a pathway having a width of 4.60 meters abutting the eastern boundary of the petrol pump of Indian Oil Corporation. The gate of the petitioner's bar hotel at the time of grant of FL- 11 licence in the year 2015 and that at the time of grant of FL- 3 licence in the year 2018 is the gate presently approved by the Excise Authorities. The gate of the petitioner's bar hotel at the time of grant of FL- 11 licence in the year 2015 and that at the time of grant of FL- 3 licence in the year 2018 is the gate presently approved by the Excise Authorities. It is after securing Ext.R3(a) FL-3 licence in the year 2018, the petitioner has chosen to make Ext.P3 application dated 03.08.2018 before the 2nd respondent Excise Commissioner, through the 3rd respondent Deputy Excise Commissioner seeking permission to open the said main gate. 36. As already noticed, as per the provisions under sub-rule (3) of Rule 13 of the Foreign Liquor Rules, read with Note (2) of sub-rule (3), in calculating the distance from church, educational institution, mosque, temple, etc., the basis shall be shortest pathway/lane/street/road generally used by the public and the same shall be measured from gate to gate. Therefore, the mandate of the said provision is to measure the distance from gate to gate through the shortest pathway/lane/street/road generally used by the public. In the absence of any provision, similar to that in sub-rule (1C) of Rule 45 of the Bombay Foreign Liquor Rules, 1953, dealt with by the Apex Court in Vikrama Shama Shetty's case (supra), to measure the distance from the midpoint of the entrance of a hotel to the midpoint of the nearest gate of any educational institutions or religious institutions, etc., the procedure adopted by the Advocate Commissioner and the Chartered Engineer to measure the gate to gate distance from the center (middle point) of shatabthi smaraka gate of the Government school to the centre of the main gate of the petitioner's hotel (which is presently closed with brick masonry) is per se illegal. The distance, as per sub-rule (3) of Rule 13, read with Note (2), has to be measured from the edge of the movable barrier (gate) touching the southern pillar of shatabthi gate of the Government school to the edge of the movable barrier touching the western pillar of the main gate of the petitioner's hotel (which is presently closed with brick masonry), through the shortest pathway, i.e., through the bell-mouth on the eastern road margin of Pathanapuram Road at Sasthri Junction. As noticed hereinbefore in paragraph 23, on such measurement, the gate to gate distance will be less than 200 meters, in which event, if the petitioner's hotel is permitted to function with the proposed gate, it will amount to violation of distance rules. In such circumstances, the 2nd respondent cannot be found fault with in rejecting the request made by the petitioner in Ext.P3, vide Ext.P4 order. 37. In Chandan Mull Indra Kumar and others v. Chiman Lal Girdhar Das Parkh and another [ AIR 1940 PC 3 ], a decision relied on by the learned Senior Counsel for the petitioner, it was held that, it is not safe for a court to act as an expert and to overrule the elaborate report of a Commissioner, whose integrity and carefulness are unquestioned, whose careful and laborious execution of his task was proved by his report, and who had not blindly adopted the assertions of either party. A reading of the said decision of the Privy Council would show that, in that case the court was dealing with a report of the Advocate Commissioner, which was marked during trial, after examining the Advocate Commissioner. 38. Order XXVI, Rule 9 of the Code of Civil Procedure, 1908 enables the court to issue a commission for local investigation, if it is satisfied that such local inspection is requisite or proper for the purpose of elucidating any matter in dispute, etc. When a commission report and plan are filed in court, as per the direction of the court, the court shall not act merely as a post office and receive it on file. In the light of the provision contained in Order XXVI, Rule 10(3) Code, the court shall go through the report and see whether it is in order, irrespective of whether any objection is filed or not. 39. In the instant case, as already noticed, while calculating the gate to gate distance for the purpose of sub-rule (3) of Rule 13 of the Foreign Liquor Rules, the distance has to be calculated through the shortest pathway/lane/street/road generally used by the public. As already noticed hereinbefore, at paragraph 23 of this judgment, there is a bell-mouth on the eastern road margin of Pathanapuram road at Sasthri junction, as evident from Ext.P2 rough sketch produced by the petitioner, which is in fact a site plan, which forms part of the building permit. As already noticed hereinbefore, at paragraph 23 of this judgment, there is a bell-mouth on the eastern road margin of Pathanapuram road at Sasthri junction, as evident from Ext.P2 rough sketch produced by the petitioner, which is in fact a site plan, which forms part of the building permit. Therefore, if a pedestrian proceeding towards the petitioner's hotel from shatabthi smaraka gate of the Government School chooses the road margin on the eastern side of Pathanapuram road, by crossing Kunnicode- Pathanapuram PWD road (in front of that gate) and then proceeds towards east through the bell-mouth on the eastern road margin of that PWD road, and then proceeds towards east through the road margin on the northern side of NH-744, and then crosses NH-744 in front of the main gate of the hotel, which is presently closed with brick masonry, the gate to gate distance will be less than 200 meters. This is the nature of objection raised by the 3rd respondent to the report of the Advocate Commissioner, as discernible from that objection dated 30.01.2019 and Ext.R3(f) sketch enclosed therewith. When the presence of such bell-mouth at Sasthri junction is evident from Ext.P2 site plan (and also from Ext.P1 rough sketch) produced by the petitioner, he cannot now contend that, this Court has to accept the measurement made by the Advocate Commissioner in his report dated 10.01.2019, which is one based on Annexure B location sketch prepared by the Chartered Engineer. The findings of this Court in paragraphs 22, 23 and 24 of this judgment are sufficient to discard Annexure B location sketch prepared by the Chartered Engineer. 40. Relying on Ext.P8 report of the Chartered Engineer, the learned Senior Counsel for the petitioner would point out that, at the time of inspection, the shatabthi smaraka gate of the Government school was found closed and as such, the distance has to be measured from the main gate of the Government school and not from shatabthi smaraka gate. The report of the Advocate Commissioner dated 10.01.2019 does not contain any such finding. Moreover, a mere locking of a gate will not lead to an inference that the gate is permanently closed and is not in use by the children. In Vikrama Shama Shetty's case (supra), the Apex Court held that stress is on the nearest distance and not on the most used distance. Moreover, a mere locking of a gate will not lead to an inference that the gate is permanently closed and is not in use by the children. In Vikrama Shama Shetty's case (supra), the Apex Court held that stress is on the nearest distance and not on the most used distance. As held by this Court in Karthikeyan's case (supra), once the access or approachability is taken as a principle criterion, the semantic niceties of the main gate and the wicket gate pale into insignificance. Any other interpretation of the rule in question will stultify the statutory scheme. 41. Placing reliance on Annexure-B location sketch prepared by the Chartered Engineer, the learned Senior Counsel for the petitioner would contend that, there is a distance of 46.75 meters from the main gate of the petitioner's hotel to the bar gate near western boundary abutting the stream and if the gate to gate distance is measured from shatabthi smaraka gate of the Government school to the bar gate of the petitioner's hotel, the distance will be much beyond the prohibited distance of 200 meters. As already noticed, FL-3 licences are being issued under sub-rule (3) of Rule 13 of the Foreign Liquor Rules, in the interest of promotion of tourism in the State and not for promoting sale of the liquor to the local residents. As already held by the Division Bench of this Court in Hotel Deliza Residency's case (supra), the purpose, i.e., no liquor shops shall be established within 500 meters distance from the National Highway in terms of the judgment of the Apex Court in K. Balu's case (supra) and the purpose of the distance rule in terms of the provisions contained in the Foreign Liquor Rules are totally different. Therefore, measurement of distance from the gate of an educational institution to the bar gate of a hotel having FL-3 licence or the distance to the vending point has no relevance in the matter of calculation of distance as per the mandate of sub-rule (3) of Rule 13 of the Foreign Liquor Rules. Therefore, the petitioner cannot contend that, for the purpose of calculating the distance under sub-rule (3) of Rule 13 of the Foreign Liquor Rules, read with Note (2), the gate to gate distance has to be measured upto the bar gate or vending point of the petitioner's hotel. 42. Therefore, the petitioner cannot contend that, for the purpose of calculating the distance under sub-rule (3) of Rule 13 of the Foreign Liquor Rules, read with Note (2), the gate to gate distance has to be measured upto the bar gate or vending point of the petitioner's hotel. 42. Similarly, in Ext.P6 judgment in W.P.(C)No.32560 of 2009, this Court was dealing with a case in which the hotel with FL-3 licence was in the third floor of a commercial building having seven floors. The commercial complex has several shop rooms having different business activities and the shop rooms which belong to several persons are occupied by several entities. In that decision, this Court held that as hotel starts from the third floor from which point only the distance can be measured. The law laid down in the said decision has no application to the facts of the instant case. 43. As noticed hereinbefore at paragraph 24, the western boundary of the petitioner's hotel is abutting a stream. The main gate of the petitioner's hotel, which is presently closed with brick masonry, is approximately 20.76 meters away from that stream. As can be seen from the photographs of the petitioner's hotel placed on record as Ext.R3(d) series, the building constructed by the petitioner is situated very near to the southern road margin of NH-744 and the compound wall of the hotel is having brick masonry for a height of nearly 3 to 4 feet. The upper portion of the compound wall is having iron railings on brick pillars. As per the provisions under Ext.R3(a) FL-3 licence, the petitioner has to exhibit the name board of the bar hotel with statutory warning. If the petitioner is permitted to shift the entrance to the place, as sought for in Ext.P3 application, such board has to be erected on the southern boundary of NH-744. Considering the proximity to the Government school on the side of Pathanapuram-Kunnicode road, such a course cannot be permitted at all. 44. If the petitioner is permitted to shift the entrance to the place, as sought for in Ext.P3 application, such board has to be erected on the southern boundary of NH-744. Considering the proximity to the Government school on the side of Pathanapuram-Kunnicode road, such a course cannot be permitted at all. 44. When the object of sub-rule (3) of Rule 13 of the Foreign Liquor Rules read with Note (ii) to that sub-rule is to ensure that the student community is not exposed to the vice of consumption of liquor and that baneful activity of liquor sale should not take place within a distance of 200 meters, from an educational institution, the request made by the petitioner in Ext.P3 application was rightly rejected by the 2nd respondent. In such circumstances, I find absolutely no reason to interfere with Ext.P4 order dated 27.10.2018 of the 2nd respondent. The writ petition fails and the same is accordingly dismissed.