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2025 DIGILAW 2411 (KER)

Town Brethren Assembly v. State of Kerala

2025-09-10

S.MANU

body2025
JUDGMENT : S. MANU, J. 1. Petitioner claims to be a congregation following Holy Bible as the only doctrinal scripture of Christianity and involving themselves in praying and worshipping God without any intervention of any mediators. Petitioner has constructed a building within the limits of Angamaly Municipality in a property purchased in 1982. According to them, it is a Church as defined under the provisions of the Rules framed under the Kerala Abkari Act . On coming to know that the 6 th respondent was proposing to start a bar in a building situated about 80 meters from the petitioner's building, they raised objections. They submitted objections before the Excise Commissioner and the Assistant Excise Commissioner, Ernakulam. 2. Petitioner approached this Court in W.P. (C)No.12860/2008. By judgment dated 11.4.2008 the writ petition was disposed of directing the Secretary, Department of Taxes to consider the objections. The Secretary thereafter closed the matter as no application for license by the 6 th respondent was pending before the Excise Commissioner. According to the petitioner, thereafter an application was submitted by the 6 th respondent for license. Circle Inspector of Excise recommended that the Brethren Assembly Hall may not be considered as a Church. While forwarding the application, the Assistant Excise Commissioner and Joint Excise Commissioner requested for clarification as to whether the Brethren Assembly Hall will come within the ambit of the definition of Church in the Foreign Liquor Rules. The 2 nd respondent considered the issue and by an order dated 7.12.2008 found that the Brethren Assembly Hall will fall under the definition of Church and rejected the application of the 6 th respondent. The 7 th respondent filed a revision petition before the Government against the order rejecting the application for license. In the hearing held before the 1 st respondent, petitioner and respondent No.6 appeared and made submissions. Thereafter the 1 st respondent passed an order on 6.10.2009. Petitioner challenged the said order in W.P.(C)No.29167/2009. This Court by judgment dated 23.2.2010 disposed of the writ petition by setting aside the order passed by the 1 st respondent. First respondent was directed to pass fresh orders after hearing the parties and adverting to the documents produced and contentions urged. 3. While so the 6 th respondent filed a complaint before the 8 th respondent regarding the exemption granted to the petitioner's institution from payment of property tax. First respondent was directed to pass fresh orders after hearing the parties and adverting to the documents produced and contentions urged. 3. While so the 6 th respondent filed a complaint before the 8 th respondent regarding the exemption granted to the petitioner's institution from payment of property tax. The petitioner approached this Court in W.P.(C)No.16025/2010 alleging that the Secretary of the Municipality had revoked the exemption without any notice. By judgment dated 28.5.2010 the said writ petition was disposed of by this Court. This Court noticed the statement of the Standing Counsel for the Municipality that no orders were passed for withdrawing the exemption. Hence, it was clarified that it was up to the petitioner to file appropriate objections to the special notice issued intending to withdraw the exemption. The Municipal Secretary on 25.9.2010 passed a detailed order and confirmed withdrawal of exemption and the consequent assessment for property tax. 4. The 1 st respondent on 24.6.2010 issued the impugned Ext.P37 Government Order. The 1 st respondent found that the Brethren Assembly Hall, Angamaly is not a Church coming within the purview of Church as defined under Note I to the first proviso of Rule 13(3) of the Foreign Liquor Rules and hence the distance rule was satisfied in the case of the 6 th respondent. The Excise Commissioner was directed to take necessary action. License was granted to the 6 th respondent pursuant to Ext.P37 order and the 6 th respondent is still operating the bar. 5. Petitioner thereafter filed the instant writ petition seeking the following reliefs:- (a) To call for the records leading to Ext.P37 and to quash the same by issuing a writ of certiorari. (b) To declare that Angamally Town Brethren Assembly Hall, building no.V/76 of Angamally Municipality is a CHURCH defined under Rule 13(3)(C) of the Foreign Liquor Rules framed under the Kerala Abkari Act . (c) grant such other relief as this Hon'ble Court may deem fit and proper in the circumstances in the case. 6. Counter affidavits were filed by 1 st respondent as well as respondents 6 and 8. Learned Senior Counsel Sri.T.Sethumadhavan and Sri.Santhosh Mathew appeared for the petitioner and the 6 th respondent respectively. Adv.Wilson Urmese appeared for the Municipality and the learned Government Pleader Sri.Tony Augustine appeared for the State. 7. 6. Counter affidavits were filed by 1 st respondent as well as respondents 6 and 8. Learned Senior Counsel Sri.T.Sethumadhavan and Sri.Santhosh Mathew appeared for the petitioner and the 6 th respondent respectively. Adv.Wilson Urmese appeared for the Municipality and the learned Government Pleader Sri.Tony Augustine appeared for the State. 7. The learned Senior Counsel Sri.T.Sethumadhavan submitted that the Brethren Assembly Hall is a place of worship of the Christian congregation distinguished from episcopal Christian Churches. The place of worship is known as Assembly Hall and no idols or icons are used for worship. Baptism and Holy Communion are followed. Marriage and funeral services are conducted under the auspices of the Church. Apart from worship Sunday school, prayers, Bible study and separate prayer meetings for women and men are held in the Assembly Hall. He referred to various documents produced along with the writ petition in support of the contention that the Assembly Hall is a place of religious worship. The learned Senior Counsel also pointed out that in the Municipal records the building was mentioned as 'swantham prarthanalayam/Brethren Assembly Hall'. The building was exempted from payment of property tax as revealed from Ext.P14 certificate dated 18.6.2007. The learned Senior Counsel referred to Ext.P18 report of the Excise Inspector dated 2.8.2008. The Excise Inspector reported that the Brethren Assembly Hall will not come under the definition of Church as under the Foreign Liquor Rules. However, by Ext.P19 dated 7.12.2008. the Excise Commissioner concluded that the Brethren Assembly Hall will come under the definition of Church. When the Government considered the issue in the first round, the Municipal authorities informed that they were not in a position to state that the Brethren Assembly Hall is a Church or not. Municipality had further informed that no NOC was obtained by the petitioner for conducting religious assembly in the Brethren Assembly Hall. The Government concluded that the Assembly Hall was not a Church and issued Ext.P27. The learned Senior Counsel pointed out the observations made by this Court in Ext.P29 judgment. He further submitted that this Court allowed W.P.(C)No.29169/2009 finding that there was no proper consideration by the Government and remitted the matter. The learned Senior Counsel vehemently contended that in the next round Ext.P37 order was passed by the Government again without proper application of mind and without stating reasons in support of the conclusion. He further submitted that this Court allowed W.P.(C)No.29169/2009 finding that there was no proper consideration by the Government and remitted the matter. The learned Senior Counsel vehemently contended that in the next round Ext.P37 order was passed by the Government again without proper application of mind and without stating reasons in support of the conclusion. He argued that Ext.P37 order is liable to be set aside solely on the ground that it is not a reasoned and speaking order. The learned Senior Counsel pointed out that the Government narrated the contentions of both sides and thereafter gave its conclusion in a single sentence. He hence submitted that Ext.P37 cannot be sustained in view of the settled principles of administrative law. The learned Senior Counsel further submitted that various documents produced along with the writ petition would show that the Brethren Assembly Hall is a place of religious worship which absolutely satisfies the definition of Church under the Foreign Liquor Rules. He pointed out that as revealed from the relevant file notes Secretary to the Government had concluded that the Assembly Hall is a Church. However, the Minister took a contrary view and decided that it will not fall within the ambit of Church as defined under the Rules. He pointed out that a reasoned opinion of the Secretary was overruled by the Minister and hence the final decision taken by the Government is arbitrary and improper. The learned Senior Counsel submitted with regard to the revocation of exemption from payment of property tax by the Municipality that the said decision was taken in a highly improper manner. He submitted that the petitioner has sought a declaration in the instant writ petition that the Brethren Assembly Hall is a Church. Municipality is a party to the writ petition. During the pendency of the writ petition the Secretary of the Municipality ventured to decide the same issue by passing an order holding that the petitioner's institution is not a Church entitled for exemption. He hence submitted that the said conclusion of the Municipality is liable to be ignored by this Court. Refuting the contention of the opposite side that the said order issued by the Secretary of the Municipality became final, the learned Senior Counsel submitted that a statutory appeal was submitted to the Municipality against the decision of the Secretary on 6.11.2010. He hence submitted that the said conclusion of the Municipality is liable to be ignored by this Court. Refuting the contention of the opposite side that the said order issued by the Secretary of the Municipality became final, the learned Senior Counsel submitted that a statutory appeal was submitted to the Municipality against the decision of the Secretary on 6.11.2010. A copy of the appeal memorandum and the acknowledgment were handed over to substantiate this contention. 8. Sri.Santhosh Mathew, learned Senior Counsel appearing for the respondents 6 and 7 opened his submissions clarifying that his clients have no case that the Brethren Assembly is not a Christian religious congregation. He submitted that the dispute is precisely about the claim of the petitioner that the Brethren Assembly Hall, Angamaly is a Church under Note to Rule 13(3) of the Foreign Liquor Rules. He contended that the second relief sought in the writ petition is totally untenable as granting declarations of such nature is not within the jurisdiction of this Court under Article 226. The learned Senior Counsel made extensive reference to Ext.R6(e) order of the Secretary of the Municipality by which exemption from payment of property tax granted with respect to the Assembly Hall was revoked. He contended that the said order is a well- considered order passed by the Secretary of the Municipality. The Secretary after elaborate consideration of the entire facts and circumstances concluded that the Assembly Hall is not a Church for the purpose of assessment to property tax. He submitted that though the Secretary of the Municipality examined the issue in the context of taxation, the provisions of the taxation laws in this regard are pari materia with the provisions of the Foreign Liquor Rules and hence the conclusions arrived at by the Secretary of the Municipality are relevant for the purpose of the present case also. The learned Senior Counsel made reference to Ext.P18 report of the Circle Inspector of Excise recommending that the Assembly Hall may not be considered as a Church. He pointed out that another Bar Hotel is functioning within 200 m. from the Hall. A toddy shop is situated within 400 m. from the petitioner's building. Petitioner has not raised any objection regarding functioning of the Bar Hotel and Toddy Shop. Granting of licenses to those would show that the Department did not consider the Brethren Assembly Hall as a Church. A toddy shop is situated within 400 m. from the petitioner's building. Petitioner has not raised any objection regarding functioning of the Bar Hotel and Toddy Shop. Granting of licenses to those would show that the Department did not consider the Brethren Assembly Hall as a Church. Learned Senior Counsel made reference to judgment of this Court in O.P.No.8328/1990 in which Bethel Gospel Hall was found to be not a Church. He submitted that Ext.P27 order was issued by the Government on 06.10.2009 after proper consideration of the facts and circumstances of the case. The Government took note of the reports of the Excise Authorities and Municipal Authorities and concluded that Brethren Assembly Hall, Angamaly is not a Church. He pointed out that Ext.P31 representation seeking to withdraw tax exemption of the Brethren Assembly Hall was submitted on 15.3.2010. On the basis of the same, proceedings were initiated by the Municipality. As directed by this Court in W.P.(C)No.16025/2010 the Secretary of the Municipality conducted a hearing and later issued Ext.R6(e) order. The learned Senior Counsel contended that in fact the Municipality had concluded that the Brethren Assembly Hall was not entitled for exemption as revealed from the assessment register. The order produced as Ext.R6(e) by the Municipality was issued as the petitioner approached this Court and this Court directed the Secretary to consider the matter after permitting the petitioner to submit objections. Sri.Santhosh Mathew pointed out that tentative decision was taken by the Municipality much earlier than before issuing Ext.R6(e). He further submitted that the said order issued by the Secretary of the Municipality still remains in force as it was not challenged by the petitioner. He argued that the Brethren Assembly Hall is a place utilized for various purposes by the Brethren mission and it is not an exclusive place used for religious worship. He submitted that the primary authority of the Department, the Circle Inspector after factual verification recommended that the Hall need not be considered as a Church. He also pointed out that another competent authority, Secretary of the Municipality, though in the context of taxation laws, after elaborate factual analysis concluded that the petitioner's Hall is not a Church. The Senior Counsel further contended that such factual findings are not liable to be disregarded and no different factual conclusions can be drawn by this Court while exercising the jurisdiction under Article 226. The Senior Counsel further contended that such factual findings are not liable to be disregarded and no different factual conclusions can be drawn by this Court while exercising the jurisdiction under Article 226. Challenging the contentions of the learned Senior Counsel for the petitioner that the file Notes produced to show that the Secretary to Government had concluded that the Hall is a Church and the Hon'ble Minister without giving sufficient reasons to disagree with the said view took a decision in favour of the 6 th respondent by pointing out that File Notes can be taken note of only for limited purposes and it is ultimately the final decision that matters. He submitted that the competent authority, the Hon'ble Minister with proper application of mind decided that Brethren Assembly Hall is not a Church. He also refuted the contention of the learned Senior Counsel for the petitioner that Ext.P37 is a non-speaking order and liable to be set aside for that reason. He submitted that the Government while issuing Ext.P37 was acting as a revisional authority and giving elaborate reasons was not required. The learned Senior Counsel further submitted that there is no merit in the contention that the authority which passed the order was not the officer who heard the parties and hence the decision is vitiated. The learned Senior Counsel contended that the writ petition has been pending before this Court for long and hence the issue may be decided on merits by this Court to put an end to the controversy and litigation. 9. The learned Standing Counsel for the Municipality disputed the contentions of the petitioner. He submitted that the Brethren Assembly Hall is not a church and the petitioner are not entitled for any relief. He submitted that the building is under a private ownership of a few persons and is not a place of public worship. The learned counsel submitted that exemption from payment of property tax was availed wrongly by the petitioner and the Municipality later rectified the mistake and assessed the building for the purpose of property tax. He pointed out the order dated 25/9/2010 issued by the Secretary of the Angamaly Municipality rejecting the petition submitted by the Brethren Church for recalling the special notice issued by the Municipality revoking the exemption. He pointed out the order dated 25/9/2010 issued by the Secretary of the Angamaly Municipality rejecting the petition submitted by the Brethren Church for recalling the special notice issued by the Municipality revoking the exemption. The learned counsel submitted that every relevant aspect to be taken note of for the purpose of deciding whether the assembly hall of the petitioner is a church were taken note by the Secretary of the Municipality, properly analysed and ultimately the Secretary concluded that the Assembly Hall is not a church. The learned counsel further submitted that the said conclusion though arrived at in the context of taxation is relevant in the case at hand also. The learned Standing Counsel also submitted that the petitioner did not challenge the order issued by the Secretary refusing to recall the decision to revoke the exemption from payment of property tax. The learned Standing Counsel further argued that none of the documents produced by the petitioner is sufficient to arrive at a conclusion that the building is satisfying the requirements of church as defined under the Foreign Liquor Rules as also Kerala Abkari Shops Disposal Rules, 2002. Learned counsel hence asserted that the writ petition is only to be dismissed. 10. The learned Senior Counsel appearing for the petitioner had made elaborate submissions regarding the non- speaking nature of Ext.P37 order. Learned Senior Counsel cited various authorities in support of the contention that giving reasons is indispensable. The learned Senior Counsel appearing for the 6 th respondent relying on a judgment of the Hon'ble Supreme Court in National Highways Authority of India v. Madhukar Kumar, , submitted that it is not necessary to give reasons in support of every order passed by administrative authorities and unless there is a duty to record reasons, order passed by the administrative authority cannot be set aside for want of reasons. He relied on the following paragraph of the judgment of the Hon'ble Supreme Court:- “72. It is one thing to say that there should be reasons, which persuaded the administrator to take a particular decision and a different thing to find that the reasons must be incorporated in a decision. The question, relating to duty to communicate such a decision, would arise to be considered in different situations, having regard to the impact, which it, in law, produces. The question, relating to duty to communicate such a decision, would arise to be considered in different situations, having regard to the impact, which it, in law, produces. In fact, the second proviso to Rule 17 of the Rules, provides not only for there being reasons, but the reasons for refusal to permit barricades, must be communicated. If the law provides for a duty to record reasons in writing, undoubtedly, it must be followed and it would amount to the violation of the statute, if it were not followed. Even if, there is no duty to record reasons or support an order with reasons, there cannot be any doubt that, for every decision, there would be and there must be, a reason. 73. The Constitution does not contemplate any public authority, exercising power with caprice or without any rationale. But here again, in the absence of the duty to record reasons, the Court is not to be clothed with power to strike down administrative action for the mere reason that no reasons are to be found recorded. In certain situations, the reason for a particular decision, may be gleaned from the pleadings of the authority, when the matter is tested in a court. From the materials, including the file notings, which are made available, the court may conclude that there were reasons and the action was not illegal or arbitrary. From admitted facts, the court may conclude that there was sufficient justification, and the mere absence of reasons, would not be sufficient to invalidate the action of the public authority. Thus, reasons may, in certain situations, have to be recorded in the order. In other contexts, it would suffice that the reasons are to be found in the files. The court may, when there is no duty to record reasons, support an administrative decision, with reference to the pleadings aided by materials.” 11. I find it difficult to agree with the submissions of the learned Senior Counsel appearing for the 6 th respondent in this regard. It must be noted that the impugned order was pursuant to the judgment dated 23.2.2010 in W.P.(C)No.29167/2009. This Court disposed of the writ petition by setting aside the previous order issued in revision and directing the 1 st respondent to hear the parties and pass fresh orders. Parties were granted liberty to produce and rely on additional documents. It must be noted that the impugned order was pursuant to the judgment dated 23.2.2010 in W.P.(C)No.29167/2009. This Court disposed of the writ petition by setting aside the previous order issued in revision and directing the 1 st respondent to hear the parties and pass fresh orders. Parties were granted liberty to produce and rely on additional documents. The 1 st respondent was directed specifically to advert to the documents produced and the contentions urged. Therefore the 1 st respondent was bound to follow the directions issued by this Court. Perusal of Ext.P37 shows that the Secretary to the Government has only narrated the contentions of both sides and without any discussion on the same arrived at the conclusion that the Brethren Assembly Hall is not a church. There is no reference to any of the documents produced by the parties. A disappointing feature of Ext.P37 order is that the decision has been given in a single sentence in paragraph 6 without any analysis and without giving any reasons. It becomes more disappointing to note that the said order was passed pursuant to the judgment dated 23.2.2010 in W.P. (C)No.29167/2009. This Court disposed of the writ petition by setting aside the previous order issued in revision and directing the 1 st respondent to hear the parties and pass fresh orders. Parties were granted liberty to produce and rely on additional documents. The 1 st respondent was directed specifically to advert to the documents produced and the contentions urged. However, the 1 st respondent has obviously acted contradictory to the said directions in the judgment and defeated the very purpose of issuing the directions by passing the cryptic order impugned in this writ petition. It is surprising to see that the authority who issued the order was the Principal Secretary to the Government (Taxes). Normally the said order ought to have been set aside and the matter should have been remitted with a direction to pass fresh orders strictly in accordance with the directions issued by this Court in W.P.(C)No.29167/2009. However, for two reasons I refrain from doing so. It is pertinent to note that this writ petition was disposed of earlier by judgment dated 21.03.2023. Against the judgment of the learned Single Judge petitioner filed W.A.No.1134/2023. On 06.07.2023, a detailed interim order was passed by the Division Bench in the writ appeal. However, for two reasons I refrain from doing so. It is pertinent to note that this writ petition was disposed of earlier by judgment dated 21.03.2023. Against the judgment of the learned Single Judge petitioner filed W.A.No.1134/2023. On 06.07.2023, a detailed interim order was passed by the Division Bench in the writ appeal. Subsequently, by judgment dated 17.8.2023 the appeal was disposed. The Division Bench made the following observations in the judgment:- “3. Taking note of the mistake, this Court, while passing order on 6/7/2023, has observed that the approach taken in closure of the instant writ petition is not legally correct and the learned Single Judge ought to have considered the issue whether the appellant is a 'Church', as understood in Rule 13(3) of the Foreign Liquor Rules, on merits. 4. Having heard the learned Senior Counsel appearing for the appellant and the learned counsel for the 6 th respondent, we are also of the considered opinion that the impugned judgment is liable to be set aside, in so far as the learned Single Judge committed a mistake by closing the writ petition based on the judgment rendered in W.P. (C)No.29745/2010 filed by the licencee. 5. In our view, the question whether the Assembly Hall of the appellant is a Church as mentioned in proviso to note (i) of Rule 13(3) of the Foreign Liquor Rules ought to be decided on merits, since the 6 th respondent's entitlement for licence is dependent on the answer to the said question.” 12. Thus, the question of whether the petitioner Assembly Hall qualifies as a church under Rule 13(3) of the Foreign Liquor Rules must be decided on the merits by this Court. Furthermore, since this writ petition has been pending since 2010, remitting the issue to the Government would put the parties in a bind because it is quite likely that the disgruntled party will challenge the decision of the government once more by coming to this court. I therefore move on and address the matter on its merits. 13. Rule 13(3) of the Foreign Liquor Rules reads as under:- “13(3). I therefore move on and address the matter on its merits. 13. Rule 13(3) of the Foreign Liquor Rules reads as under:- “13(3). Foreign Liquor 3 Hotel (Restaurant) license.- License in this form may be issued by the Excise Commissioner under orders of Government, in the interest of promotion of tourism in the State, to hotels which have obtained three star, four star, five star, five star deluxe, heritage, heritage grand or heritage classic classification from 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.35,00,000 (Thirty Five Lakhs only). However, no such licence shall be issued to hotels having three star classification if located within 200 (Two Hundred) metres and to hotels having four star, five star, five star deluxe and heritage classification if located within 50 (Fifty) metres from any educational institution, temple, church, mosque, burial ground or scheduled caste/scheduled tribe colony. The applicant shall produce from the Abkari Workers' Welfare Fund Inspector, a Certificate to the effect that he has remitted before the date of application for the license, the arrears of contributions if any payable up to the 31 st day of December of the preceding year.” Note: I under the Rule reads as follows:- “Note: (1) "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 where deity is installed under a building and includes a mutt also: Provided that any structure on the road side pavement or in a compound of a private building with or without deity shall not be considered as a Temple, Church, Mosque: Provided further that if any Educational Institution/Temple/Church/Mosque or Burial Ground comes into existence subsequent to the grant of licence it shall not disentitle such bar attached hotels for continuance.” Hence, for the purpose of the Foreign Liquor Rules, 'Church' means a public place where prayer is offered by Christians. Therefore, the basic requirements to satisfy the criteria in the note is that the place should be 1) a public place, 2) it must be a place where prayer is offered by Christians. 14. The learned counsel for the petitioner had made reference to various documents especially Exts.P2 photographs, P3 extract from the baptism register, P4 extract from the birth register and P5 extract from the marriage register maintained by the church. Some photographs claiming to be of the rites and rituals performed in the church were also pointed out. Sale deed dated 30 th March, 1982 by which the property was purchased was also referred to. Some other documents showing exemption from assessment to property tax and other aspects are also produced which were also referred to during the course of arguments. The learned counsel strenuously argued that the document produced along with the writ petition clearly point out that the Assembly Hall is a place of worship where prayers are offered by the Christian congregation 'Brethren church'. The learned Senior Counsel appearing for the 6 th respondent vigorously controverted the claim that the Assembly Hall is a church. He, with reference to various documents argued that the property was purchased by some individuals and the building was also constructed by them. The learned Senior Counsel placed reliance on the third proviso to Rule 13(1) of the Foreign Liquor Rules which reads as under:- “Provided that any structure on the roadside pavement or in a compound of a private building with or without deity shall not be considered as a Temple, Church or Mosque.” 15. He submitted that any structure in a compound of a private building with or without deity shall not be considered as a temple, church or mosque. The learned Senior Counsel vehemently submitted that the petitioner Assembly Hall is situated in a private property and that has been described as their own place of worship even in the registers of the Municipality. He hence submitted that it is not a place of worship by public and hence the Assembly Hall will not fall within the purview of the expression 'church' under the Foreign Liquor Rules. I shall proceed to examine the merits of the conflicting contentions after referring to some of the reported judgments of this Court. 16. He hence submitted that it is not a place of worship by public and hence the Assembly Hall will not fall within the purview of the expression 'church' under the Foreign Liquor Rules. I shall proceed to examine the merits of the conflicting contentions after referring to some of the reported judgments of this Court. 16. In Thilakan v. Commissioner of Excise, 2009 (3) KLT 229 , this Court considered as to whether a niskara palli is a mosque for the purpose of Kerala Abkari Shops Disposal Rules, 2002. Division Bench of this Court held as under:- “3. The definition of Mosque under R.2(l) of the Abkari Shops Disposal Rules reads as follows: “Mosque” means a public place where prayer is offered by Muslims: Provided that any structure on the road side, pavement or in a compound of a private building with or without a deity shall not be considered as a “Mosque”. Going by the above definition, it would appear that any public place, where prayers are offered by Muslims, will be treated as a Mosque, unless it is covered by the proviso. The proviso says that any structure on the road side, pavement or in the compound of a private building will not be considered as a Mosque. It is not in dispute that the building is used by Muslims for offering prayers. No one has a case that the structure concerned is a structure on the road side or pavement or in the compound of a private building. Undisputedly, Muslims offer prayers there. So, it answers the definition of Mosque. Of course, the Mosque as understood in common parlance or as understood by the Wakf Board may be different, but the Rule making authority has chosen to give an artificial meaning to it. Since the meaning of the words are plain, the court is bound to give effect to the same. Its decision cannot be clouded by any concept regarding Mosque in common parlance. So, we are of the view that finding of the learned single Judge that the structure in question is a Mosque for the purpose of R.2(l) of the Rules is legal and valid. Therefore, the Writ Appeal fails. But, learned counsel for the appellant submitted that he has got yet another contention relying on the fact that the shop was being run in the same building for the last few years. Therefore, the Writ Appeal fails. But, learned counsel for the appellant submitted that he has got yet another contention relying on the fact that the shop was being run in the same building for the last few years. The said contention is seriously disputed by the counsel appearing for respondents 3 and 4. Since this is not a point raised before the learned single Judge, it is not proper for us to consider the same. The remedy of the petitioner is to move the learned single Judge. In view of the above facts, the Writ Appeal is dismissed. The right, if any, of the appellant to move the learned single Judge will not be affected by this judgment.” 17. In Divakaran M.K. v. Commissioner of Excise, Tvm. and others, 2010 (1) KLT 19 a learned Single Judge of this Court considered a writ petition in which the issue was as to whether a Pentecostal prayer hall can be considered as a church for the purpose of Kerala Abkari Shops Disposal Rules. “5. The establishment hierarchy cannot be expected to work by each superior officer doing the entire job by himself. Necessary materials will have to be collected. To exclude any chance of the Deputy Commissioner’s views having influenced the impugned decision of the Commissioner, I have adverted to, as noticed above, the initial report of the Circle Inspector of Excise, who is the basic authority to conduct the site inspection and makes the report. There is controversy between the parties as to whether the distance from the site in question to the structure that is termed as a church is 220 or 250 meters. That controversy is dependent on whether the distance from the main road up to the main gate of the structure called church should be counted. Either way, that makes no difference because the total distance which may be relevant is 400 meters since it is a toddy shop. Going by the findings in the impugned order, one of the cardinal questions that was addressed before the Commissioner is as to whether the prayer hall of Pentecostal denomination is a church. Either way, that makes no difference because the total distance which may be relevant is 400 meters since it is a toddy shop. Going by the findings in the impugned order, one of the cardinal questions that was addressed before the Commissioner is as to whether the prayer hall of Pentecostal denomination is a church. The learned counsel for the petitioner relied on a decision of this Court (Ext.P6) wherein, it was held that a hall by name Bathel Gospel Hall where only some worship meetings are held, does not amount to a church since that hall is not an apostolic church governed by Ecclesiastical Hierarchy. Though it is not necessary to agree or disagree with the views in that judgment to that effect, the larger conspectus of Christian, Christianity etc. is understood without making any classification between the different denominations which may or may not form an Ecclesiastical Hierarchy or which may otherwise stand. I say this to further indicate that for the purpose of the word ‘church’ in relation to R.7(2), such a controversy need not arise. R.7(2) uses the word ‘church’ and R.2(f) of the Disposal Rules defines ‘church’ to mean a public place where prayer is offered by Christians provided that no structure on the road side, pavement or in a compound of a private building with or without a deity shall be considered as a church. Even the rule making authority had been well notified of the fact that a church could exist without a deity. This is why the proviso to R.2(f) is so couched. The non-existence of a deity is, therefore, not of any particular evidentiary value to decide the issue. The Commissioner, acting on the report of the Circle Inspector, has concluded that the hall in question is a place where Christians belonging to Pentecostal denomination congregate and have prayers occasionally except on Tuesdays and Thursdays. That finding of fact cannot be treated as palpably perverse or totally unavailable on the materials on record. Sitting in jurisdiction under Art.226, I do not, therefore, find any error of law or of jurisdiction with the impugned order. In the result, the writ petition fails and it is accordingly dismissed. No costs.” This Court refused to interfere with the conclusion of the Excise Commissioner that a place Christians belonging to Pentecostal denomination congregate and have prayers is a church. 18. In the result, the writ petition fails and it is accordingly dismissed. No costs.” This Court refused to interfere with the conclusion of the Excise Commissioner that a place Christians belonging to Pentecostal denomination congregate and have prayers is a church. 18. In Sudheesh Kumar v. Commissioner of Excise, 2010 (4) KLT 673 , Division Bench of this Court considered whether a Nagarkavu where snake god is worshiped would answer the description of temple under the Abkari Shops Disposal Rules. This Court concluded that the 'kavu' where Hindus worship snake god open to worship by public answers the description of temple though it is located in private property. Relevant paragraphs of the judgment are extracted hereunder:- “3. Photographs of the Kavu produced in Court show that it is a pucca concrete building with a long shed constructed with steel pipes and corrugated sheet roof for the large number of people to stand and offer prayers without being affected by sun and rain. The photograph shows that the Kavu is a typical temple with a tall metal lamp installed in the foreground and a hundi is also installed in the front side of the Kavu for people to make offerings. Even though there is variance in the finding of the Commissioner in Ext.P2 and in the Advocate Commissioner's report about the distance within which the Kavu is located from the toddy shop, we do not think the difference has any significance because even according to the Commissioner's order, the Kavu is located within prohibited distance of 400 metres as according to him it is located only 338 metres away from the toddy shop, whereas according to the Advocate Commissioner's report, the distance between the toddy shop and the Kavu is only 267 metres. If the Kavu answers the description of “temple” under the Rules, then certainly the Commissioner's order is liable to be vacated and the licence issued should be cancelled. R. 7(2) of the Rules specifically bars granting of licence to toddy shops located within 400 metres of any Educational Institution, Temple, Church, Mosque, Burial ground and Scheduled Caste/Scheduled Tribes Colonies. If the Kavu answers the description of “temple” under the Rules, then certainly the Commissioner's order is liable to be vacated and the licence issued should be cancelled. R. 7(2) of the Rules specifically bars granting of licence to toddy shops located within 400 metres of any Educational Institution, Temple, Church, Mosque, Burial ground and Scheduled Caste/Scheduled Tribes Colonies. The only question that calls for our decision is whether the kavu answers the description of “temple” as defined under R.2(m) of the Rules which is as follows: “Temple” means a place of public religious worship by Hindus where a deity is installed under a building and includes a mutt also: Provided that any structure on the road side, pavement or in a compound of a private building with or without a deity shall not be considered as a “Temple.” 4. The petitioner has relied on the Commissioner's report, photographs produced and also Ext.P12 affidavit filed by some devotees, Exts.P13 and P14 pertaining to the festival conducted in the temple. The Commissioner has not considered any of these documents or evidence produced before this Court. On the other hand, he has assumed that a Nagarkavu which is the abode of Snake God cannot be a temple at all. In our view, the Commissioner is under a misconception as to what is a temple. Snake Gods are worshiped traditionally for centuries in Kerala and even now Snake Gods are worshiped in Kerala. The difference between a regular temple and the abode of Snake God is that ordinary place of Hindu worship where deities are installed are called temples and place of worship where Snake God is installed is called Kavu. The poojas and rituals before Snake Gods are also little different. However, a Nagarkavu which is the abode of Snake God is also a place of worship of Hindus and is no way different from ordinary temples where deities are installed. Counsel has produced leading Mathruboomi Weekly dated 12 th September, 2010 wherein there is a detailed article about all the major Kavus in Kerala. The contention of the petitioner is that the article itself illustrates that the abode of Snake Gods are nothing but places of worship and so much so, those Kavus clearly answer the description of temple contained in R.2(m) of the Rules. The contention of the petitioner is that the article itself illustrates that the abode of Snake Gods are nothing but places of worship and so much so, those Kavus clearly answer the description of temple contained in R.2(m) of the Rules. Besides filing an affidavit from various devotees who are said to be offering prayers in the Kavu referred above, counsel for the petitioner has also produced Exts.P13 and P14 leaflets pertaining to the festival namely, Ayilyapooja being held in the Kavu. The photograph itself indicates that quite large number of people assemble for prayer at a time and in order to protect them from sun and heat, a long shed is constructed in front of the building where deity is installed. Further, as already noticed, typical five step metal lamp is installed in front of the Kavu and even a Hundi is installed for people to make offerings.” 19. Discernment of the contentions of the rival parties as well as the Municipality shows that the only question to be considered and decided is as to whether the petitioner Assembly Hall should be reckoned as a church under the Foreign Liquor Rules and Kerala Abkari Shops Disposal Rules. 20. The 6 th respondent is not disputing that the Brethren Church is a Christian congregation. It is a denomination within the Christian community following some different beliefs and systems of worship. According to the averments in the writ petition, members of Brethren community involved themselves in praying and worshiping God without any intervention of any mediators. They follow the Holy Bible as the only Doctrinal Scripture of Christianity. They submit that existence of congregational sects of Christians is well recognised and there is a mention of the Brethren community in the census of 1931. The petitioner assert that members of the Assembly pray and worship God according to their faith in their places of worship which are usually called Assembly Hall. They also submit that places of worship and prayer of Brethren community distinguishes them from episcopal Christian churches with idols or icons. Having idols or icons in the place of worship is against their faith and Holy Scripture. 21. Article 25 of the Constitution ensures freedom of conscience and free profession, practice and propagation of religion. Article 26 deals with freedom to manage religious affairs. Having idols or icons in the place of worship is against their faith and Holy Scripture. 21. Article 25 of the Constitution ensures freedom of conscience and free profession, practice and propagation of religion. Article 26 deals with freedom to manage religious affairs. The language of Article 26 makes it clear that the rights under the said Article are available to every religious denomination or any section thereof. In Bijoe Emmanuel and Others v. State of Kerala and Others, (1986) 3 SCC 615 the Hon'ble Supreme Court made the following Observations:- “20. The meaning of the expression “religion” in the context of the Fundamental Right to freedom of conscience and the right to profess, practise and propagate religion, guaranteed by Article 25 of the Constitution, has been explained in the well known cases of Commissioner, Hindu Religious Endowment, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [ AIR 1954 SC 282 : 1954 SCR 1005 ], Ratilal Panachand Gandhi v. State of Bombay [ AIR 1954 SC 388 , 392 : 1954 SCR 1055 ] and S.P. Mittal v. Union of India [ (1983) 1 SCC 51 ]. It is not necessary for our present purpose to refer to the exposition contained in these judgments except to say that in the first of these cases Mukherjea, J. made a reference to “Jehovah's Witnesses” and appeared to quote with approval the views of Latham, C.J. of the Australian High Court in Adelaide Company v. The Commonwealth [67 CLR 116] and those of the American Supreme Court in West Virginia State Board of Education v. Barnette [87 Law Ed 1628, 1633 : 319 US 624, 629 (1943)]. In Rotilal's case [ AIR 1954 SC 388 , 392 : 1954 SCR 1055 ] we also notice that Mukherjea, J. quoted as appropriate Davar, J.'s following observations in Jamshed Ji v. Soonabai [(1909) 33 Bom 122 : 10 Bom LR 417] : “If this is the belief of the community and it is proved undoubtedly to be the belief of the Zoroastrian community, — a secular Judge is bound to accept that belief — it is not for him to sit in judgment on that belief, he has no right to interfere with the conscience of a donor who makes a gift in favour of what he believes to be the advancement of his religion and the welfare of his community or mankind.” We do endorse the view suggested by Davar, J's observation that the question is not whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion. Our personal views and reactions are irrelevant. If the belief is genuinely and conscientiously held it attracts the protection of Article 25 but subject, of course, to the inhibitions contained therein.” 22. The Note I under Rule 13(3) defines 'church' as a public place where prayer is offered by Christians. The expression 'church' has been outlined in a very broad manner in the Note. Any public place where prayer is offered by Christians can be considered as a church. If the intention of the rule making authority was to bring within the scope of the expression only conventional ecclesiastic churches, the language of the Note would have been restrictive in nature. To the contrary, the expression has been given a wider connotation in the Note. The same, in my view, is well in tune with Articles 25 and 26 of the Constitution. 23. Petitioner has produced several documents to show that members of their congregation use the Assembly Hall for affairs integral to their faith including prayers. Ext.P3 extract from the baptism register, Ext.P4 extract from the birth register and Ext.P5 extract from the marriage register are to be noted in this regard. It is also to be noted that several believers conducted wedding ceremonies in the Hall. There is no denial by the 6 th respondent that the Hall is not at all used for conducting prayers. It is also to be noted that several believers conducted wedding ceremonies in the Hall. There is no denial by the 6 th respondent that the Hall is not at all used for conducting prayers. The members of Brethren Church have been obviously utilising the Assembly Hall for prayers and also for other religious purposes. Concept about places of worship differs from religion to religion and in many cases from denomination to denomination also. Given the mandate of Articles 25 and 26, it cannot be said that unless a place of worship of a denomination has comparable features with the places of worship of other denominations broadly following the same faith, the former cannot be recognised as a place of worship. Though the assembly hall might be in use for allied purposes intrinsic to religious belief apart from prayers, it cannot be refused to be considered as a place where prayers are offered by Christians . Therefore, I am of the view that the claim of the petitioner, that the Brethren Assembly Hall, Angamaly, used by members of the Brethren community for prayers, is a church for the purpose of Rule 13(3) of the Foreign Liquor Rules, 1953, cannot be rejected. 24. The learned Senior Counsel for the 6 th respondent had raised a specific contention that the Brethren Assembly Hall is a private property purchased by some individuals. However, the recitals of Ext.P10 sale deed clearly show that the property was purchased for the purpose of the congregation known as ‘Open Brethren’. Reading of Ext.P10 unmistakably points out that the property was acquired not for the benefit of any individuals, as contended. It is also to be noted that the petitioner- congregation is totally different in its characteristics when compared with established conventional churches. Therefore, acquiring of property by a group of individuals following the faith for the purpose of worship by all members following the same faith cannot be considered as for their personal benefits. Hence, the contention that the Brethren Assembly Hall will fall within the proviso to Note I cannot be accepted. 25. On behalf of the party respondent as well as the Municipality extensive reference was made to the order dated 25.9.2010 issued by the Municipal Secretary, confirming the decision to revoke the exemption granted to the Brethren Church from assessment for property tax. 25. On behalf of the party respondent as well as the Municipality extensive reference was made to the order dated 25.9.2010 issued by the Municipal Secretary, confirming the decision to revoke the exemption granted to the Brethren Church from assessment for property tax. The Secretary of the Municipality has negated the claim of the petitioner for continuing the exemption stating several reasons. However, the entire analysis was for fiscal purposes under a different set of laws. Therefore, the observations and conclusions of the Municipal Secretary has no relevance in deciding the question as to whether the Assembly Hall can be considered as a church under the Foreign Liquor Rules. This Court is not bound to take into account any such observations and conclusions, except for the purpose of noting that the exemption granted to the petitioner, treating the Assembly Hall as a building set apart for public worship, was revoked. Further, it is to be noted that the provisions of Section 235(a) of the Kerala Municipality Act,1994, are not in pari materia with the relevant provisions of the Foreign Liquor Rules. 26. In Tilakan v. Commissioner of Excise , 2009 (3) KLT 229 this Court rejected a contention that a Niskara Palli is not a mosque. It was held that any public place where prayers are offered by Muslims will be treated as a mosque unless it is covered by the proviso to Rule 2(l) of Abkari Shops Disposal Rules. Division Bench of this Court held that the mosque as understood in common parlance or as understood by the Wakf Board may be different, but the rule making authority has chosen to give an artificial meaning to it. Similarly, in the case on hand, there is no dispute that the Brethren Assembly Hall is used by members of the Brethren community for religious worship and offering prayers. Hence, it satisfies the definition of 'Church' under the Abkari Shops Disposal Rules. 27. It is relevant to note that in Divakaran M.K. v. Commissioner of Excise, Tvm. and others, 2010 (1) KLT 19 , a learned Single Judge of this Court observed that the larger conspectus of Christian, Christianity, etc. is understood without making any classification between the different denominations which may or may not form an ecclesiastical hierarchy or which may otherwise stand. and others, 2010 (1) KLT 19 , a learned Single Judge of this Court observed that the larger conspectus of Christian, Christianity, etc. is understood without making any classification between the different denominations which may or may not form an ecclesiastical hierarchy or which may otherwise stand. The learned Single Judge in the context of identical provisions of the Abkari Shops Disposal Rules held that even the rule making authority has been well notified of the fact that a church could exist without a deity. This Court refused to interfere with the conclusion of the Excise Authority that the Hall in question in the said case was a place where Christians belonging to Pentecostal denomination congregate and have prayers occasionally. The situation in the case at hand is also similar. 28. The learned Senior Counsel for the 6 th respondent had placed heavy reliance on the judgment of this Court in O.P.No.8328/1990 dated 19.9.1990. In the said case a learned Single Judge of this Court rejected the contention that a hall named Bathel Gospel Hall owned by a private trust, Steward's Association was a Church. The learned Judge accepted the contention of the respondents in the said case that the said hall was used for meetings such as worship meetings, gospel meetings, sisters meetings, youngsters meetings, prayer meetings, etc. and it cannot be considered as a Church. The learned Senior Counsel, referring to Ext.P2 photograph showing the Board in front of Brethren Assembly Hall submitted that the factual situation which was considered in O.P.No.8328/1990 is similar as the Brethren Assembly Hall is also used for various meetings. However, it is to be noted that there is a categorical factual finding in the judgment in O.P.No.8328/1990 that no prayer was conducted in the Gospel Hall owned by Stewards Association. However, it is evident from Ext.P2 that the board in front of Brethren Assembly Hall clearly shows that the same is used for prayers on Sundays from 9:45 am to 12:15 pm and also from 5:30 pm to 6:30 pm. It is also to be noted that the hall has been described on the board as a place of worship. Unlike in the case in O.P.No.8328/1990 the hall in question in this case is used for prayers. It is also relevant to note that in Divakaran M.K. v. Commissioner of Excise, Tvm. It is also to be noted that the hall has been described on the board as a place of worship. Unlike in the case in O.P.No.8328/1990 the hall in question in this case is used for prayers. It is also relevant to note that in Divakaran M.K. v. Commissioner of Excise, Tvm. and others (supra) judgment in O.P.No.8328/1990 was considered by the learned Single Judge. However, the learned Single Judge observed thus about the said judgment:- “The learned counsel for the petitioner relied on a decision of this Court (Ext.P6) wherein, it was held that a hall by name Bathel Gospel Hall where only some worship meetings are held, does not amount to a Church since that hall is not an apostolic Church governed by Ecclesiastical Hierarchy. Though it is not necessary to agree or disagree with the views in that judgment to that effect, the larger conspectus of Christian, Christianity etc. is understood without making any classification between the different denominations which may or may not form an Ecclesiastical Hierarchy or which may otherwise stand.” At any rate, as noted above, the learned Single Judge in O.P.No.8328/1990 rendered the judgment on the factual premise that no prayers were held in the Bathel Gospel Hall of Stewards Association. Factual situation in the instant case being different, the judgment in O.P.No.8328/1990 cannot be of any help to the 6 th respondent. 29. In Sudheesh Kumar's case (supra) Division Bench of this Court held that a place of worship located in a private property open for worship by public will satisfy the definition of 'temple' under the Abkari Shops Disposal Rules. Therefore, merely for the reason that a place of worship is situated within a private property, it cannot be said that the same would not satisfy the definitions of temple/church/mosque under the Foreign Liquor Rules. The real test is whether the place is a public place of worship. When all members of a sect or denomination are permitted to offer prayers in a place situated even within a private property, the said place would satisfy the definition of temple/church/mosque under the Foreign Liquor Rules. 30. In light of the reasoning above, I hold that, for the purposes of Rule 13(3) of the Foreign Liquor Rules, the petitioner's Assembly Hall is a church, and as a result, Ext. P37 is set aside. 31. 30. In light of the reasoning above, I hold that, for the purposes of Rule 13(3) of the Foreign Liquor Rules, the petitioner's Assembly Hall is a church, and as a result, Ext. P37 is set aside. 31. Division Bench of this Court in Sudheesh Kumar's case, after finding that license issued to the party respondent was liable to be revoked as a Nagarkavu was situated within the prohibited distance, permitted the license to operate till the end of the financial year as the toddy shop was functioning for a few years and some time had passed after the license was obtained. Similarly, in the case at hand, the 6 th respondent hotel was provided license under the Abkari Shops Disposal Rules several years ago and it was submitted at the Bar that for the current financial year also the license was renewed. Hence, the State authorities are directed not to renew the license of the 6 th respondent after the end of the current financial year. The writ petition is disposed of with the above declarations and directions.