Kerala High Court
Dr. Tomy Antony vs State Of Kerala on 13 June, 2025
2025:KER:41733
W.P(C) 33795/24 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
FRIDAY, THE 13TH DAY OF JUNE 2025 / 23RD JYAISHTA, 1947
WP(C) NO. 33795 OF 2024
PETITIONER/S:
1 DR. TOMY ANTONY,
AGED 55 YEARS
S/O. ANTONY, PRINCIPAL, YUVAKSHETRA INSTITUTE OF MANAGEMENT
STUDIES, EZHAKKAD P.O, MUNDUR, PALAKKAD, PIN - 678631
2 FR. MATHEW GEORGE VAZHAYIL,
AGED 55 YEARS
S/O VARKEY, DIRECTOR, YUVAKSHETRA INSTITUTE OF MANAGEMENT
STUDIES UNDER YUVAKSHETRA CHARITABLE TRUST, EZHAKKAD P.O,
MUNDUR, PALAKKAD, PIN - 678631
3 YUVAKSHETRA CHARITABLE TRUST,
REP. BY ITS PATRON, MAR PETER KOCHUPURAKKAL ALIAS BABY
KOCHUPURAKKAL, AGED 58 YEARS, S/O MANI, NOORANI AT NOORANI
BISHOPS HOUSE, PIRAYIRI AMSOM AND DESOM, PALAKKAD, PIN -
678004
BY ADVS.
SRI.J.JULIAN XAVIER
SRI.FIROZ K.ROBIN
SRI.JOSE. V.V. (THENGATHARA)
SRI.ROY JOSEPH
SMT.ANIES MATHEW
SHRI.NIRMAL KURIEN EAPEN
SMT.THASNEEM BADARUDEEN
SHRI.THOMAS P.B.
SRI.RAJU JOSEPH (SR.)
RESPONDENT/S:
1 STATE OF KERALA,
REP. BY ITS SECRETARY (EXCISE), TAXES (A) DEPARTMENT, GOVT.
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
2 DISTRICT COLLECTOR, PALAKKAD,
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W.P(C) 33795/24 2
KENATHUPARAMBU, KUNATHURMEDU, PALAKKAD, PIN - 678013
3 THE EXCISE COMMISSIONER,
COMMISSIONRATE OF EXCISE, EXCISE HEAD QUARTERS, NANDAVANAM,
THIRUVANANTHAPURAM, PIN - 695033
4 THE DEPUTY EXCISE COMMISSIONER,
EXCISE DIVISION OFFICE, CIVIL STATION, PALAKKAD, PIN -
678001
5 A. RADHAKRISHNAN,
PROPRIETOR, ARK HOTEL & CONVENTION CENTRE,REP. BY ITS
MANAGING DIRECTOR, EZHAKKAD P.O, PALAKKAD, PIN - 678631
BY ADVS.
GOVERNMENT PLEADER SRI. SREEJITH V.S. FOR R1 TO R4
SRI.M.G.KARTHIKEYAN FOR R5
SRI.NIREESH MATHEW
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04.06.2025, THE COURT ON 13.06.2025 DELIVERED THE FOLLOWING:
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W.P(C) 33795/24 3
MOHAMMED NIAS C.P., J.
......................................................
W.P(C) No.33795 of 2024
......................................................
Dated this the 13th day of June, 2025
JUDGMENT
The petitioners challenge the FL3 licence granted to the 5 th
respondent under Exts.P19, P20, and P21, and also seek its cancellation.
The petitioners contend that they are an educational institution, which
is the immediate neighbour of the 5th respondent hotel, and challenge
the grant of licence on the following grounds:-
(i) The FL-3 licence, issued without notice to the petitioners despite
this Court's direction in W.P.(C) No. 16129/2024 to consider the
application in the light of the observation in Biju Joseph v. Chacko
[1992 (2) KLT 312 (FB)], is vitiated for violation of the principles of
natural justice.
(ii) That FL-3 licence issued to the 5th respondent to conduct 'Bar' is
obtained through fraud and misrepresentation.
(iii) This Court in Ext.P14 judgment directed the Government to
consider the grant of FL3 licence in the light of the decision reported in
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Biju Joseph (supra). Therefore, it is the responsibility of the 1 st
respondent to issue notice to the petitioners and to consider the
objections, but the government failed to consider this.
(iv) The recommendations in Exts.P11 and P13 are issued mechanically
without consideration of the grave social impact and threat to student
welfare posed by a bar operating next to a college campus.
(v) As per Rule 13(3) of the Foreign Liquor Rules, 1953, no FL-3 licence
shall be issued to a Four Star hotel if it is located within 50 meters of an
educational institution. The 5th respondent's hotel, having a Four Star
classification as per Ext.P13, is situated adjacent to the petitioners'
educational institution with no intervening space between the
boundaries. The measurement must be taken boundary-to-boundary,
not gate-to-gate, and granting a licence in such proximity defeats the
very object of the distance restriction prescribed under the Rule.
(vi) The presence of the bar hotel within 66 meters of the educational
institution is a serious distraction to students and a threat to their
development, violating their fundamental right to live with dignity
under Article 21.
(vii) The grant of FL-3 licence to the 5 th respondent violates public
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interest, morality, and the right to life with dignity under Article 21, as
held in Ganapathy Iyer and others v. State of Kerala [2018 (2) KHC
698], My Hindustan Paints, Thrissur and others v. State of Kerala
and others reported in [2017 (3) KHC 717], and Prasanth Babu M.V. v.
Kannur Kalluchethu Vyavasaya Thozhilali Sahakarana Sangam
[2010 (4) KLT 508]. The proximity of the liquor outlet to the
educational institution defeats the purpose of distance rules and
disrupts the academic environment. The recommendation in Ext.P13
thus disregards binding precedents and is legally unsustainable.
2. Earlier, the petitioners had approached this Court by filing
W.P. (C) No. 2680/2024, which resulted in the Ext.P12 judgment that
directed the Excise Commissioner to consider Ext. P14 objection of
petitioners, and pass appropriate orders thereon after giving an
opportunity of hearing to the petitioners and the 5th respondent,
within a period of one month. Thereafter, Ext.P13 order was passed by
the Excise Commissioner on 21.3.2024, granting FL3 licence, finding
that the hotel is situated in an unobjectionable site as per Foreign
Liquor Rules, which was again challenged, resulting in Ext.P14
judgment in W.P(C) No. 16129/2024. There was also a challenge to the
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amendment to sub-rule (3) of Rule 13 of the Foreign Liquor Rules, 1953,
by which the distance of 200 metres to be maintained from an
educational institution, temple, church, mosque, or burial ground was
reduced to 50 metres.
3. The challenge to the amendment of the rule was repelled,
and the writ petition was disposed of as under :
"A Full Bench of this Court in the case of Biju Joseph v. Chacko (1992
KHC 354) has considered the unamended Rule 13 (3) and 13 A. The
Government shall consider the provisions of Rule 13 (3) and 13A of
the Foreign Liquor Rules while taking decision on the
recommendation Ext. P11 and P13 for grant of bar license to the ARK
Hotel and Convention Centre. This Court in its judgment in Biju
Joseph (Supra) has held that while granting FL-3 license the specific
factors mentioned in Rule 13A and clause 22 of the conditions of FL3
license, viz., whether the location of the shop is objectionable from
the point of view of "public interest or expediency" which are the
principles prescribed as the guiding principles in the matter of grant
of an FL-3 license to bars, hotel or restaurants. Thus, the Government
should take into consideration of the aforesaid principles while
considering the application of the petitioners for grant of license in
view of the recommendations in Ext. P11 and P13."
4. Writ Appeal No.1234/2024 filed by the petitioners was
withdrawn, and the relevant portion of the judgment is extracted :
"4. Having confronted the learned Senior Counsel that though the
cause of action accrued, the Government may or may not accept the
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request of either of the parties, the petitioners ought not to have
assailed the aforementioned order in the court. The learned counsel,
on instructions, seeks liberty of this Court for withdrawal of the
writ petition consequent to writ appeal with liberty to challenge in
case the Government decides against the interest of the
appellants/petitioners. The appellants are also at liberty to raise all
contentions raised in the writ petition as well as in the writ appeal
before the competent authority in terms of the observations of the
Excise Commissioner in Ext. P13 order."
5. The petitioners contend that after the above judgment, on
06.9.2024 itself, the petitioners again requested the Excise
Commissioner not to grant the licence, as seen from Ext.P16. However,
even without getting the requisite permission, the 5 th respondent has
started running a bar hotel, is the allegation.
6. A counter affidavit has been filed on behalf of the 4 th
respondent contending that the 5th respondent submitted a valid
application for a fresh FL3 licence through the proper channel, and the
4th respondent conducted an inspection to verify compliance with the
Foreign Liquor Rules. It is confirmed as shown in Ext. P11 Report that
the hotel satisfies all mandatory requirements under the Foreign
Liquor Rules and submitted the same to the 2 nd respondent, District
Collector. The 4th respondent submits that the measurements taken
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during inspection found that the distance from the hotel gate to the
main college gate is 160 meters, and to the playground gate is 70
meters. The minimum required distance for a 4-star classified hotel, as
per the 2017 amendment to the Rules, is 50 meters, and this condition
is satisfied.
7. It is also stated that although the hotel shares a boundary
with the college playground, the properties are separated by a
compound wall, and no direct access exists from the playground to the
hotel. The concerns raised by the petitioners about possible student
access to liquor are governed by Sections 15A and 15B of the Abkari
Act, which prohibit the sale and consumption of liquor by persons
under 23 years of age, and violations are subject to penal action. The
final FL3 licence was granted by the Excise Commissioner on
12.09.2024, based on all statutory compliance and recommendations,
and the process was in accordance with the law. Therefore, the 4 th
respondent contends that the petitioners' challenge is devoid of merit,
as all statutory requirements have been followed, and appropriate
inspections and procedures were duly completed before
recommending the licence.
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8. A counter affidavit has been filed by the 5 th respondent, the
party respondent, contending as follows:
(i) The petitioners had earlier challenged the same issue of grant of
licence through multiple writ proceedings, resulting in Exts. P12, P14,
and P15 judgments, where the High Court had already rejected the
challenge to the 50-meter distance rule, holding it a valid policy
decision.
(ii) The 50-meter minimum distance for 4-star and above hotels was a
deliberate policy decision of the Government, and has already been
upheld by the High Court as intra vires the Abkari Act and not
arbitrary or unconstitutional. The petitioners' challenge to the 2017
amendment reducing the distance from 200 to 50 meters is therefore
res judicata and cannot be raised again, especially when more than 200
hotels in Kerala operate under the same rule.
(iii) The 5th respondent's hotel is a 4-star classified hotel, and the
distance from the main gate of the hotel to the college gate is 170
meters; the distance from the hotel to the playground gate is also more
than 50 meters, thus complying with the Foreign Liquor Rules.
(iv) The petitioners themselves admit that the hotel satisfies the
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distance requirement, and the objection is now redirected against the
distance rule itself, which is a settled matter of government policy.
(v) The petitioners failed to exhaust the statutory alternative remedy
available under Rule 40 of the Foreign Liquor Rules, which provides for
filing a revision petition before the Government. Invoking Article 226
directly is improper in such circumstances.
(vi) The petitioners' institution is a self-financing college, not a
Government or aided institution, and many 4-star and 5-star hotels in
Kerala are located near educational institutions, even within a 50-
meter radius.
(vii) The claim that 4-star hotels run "local bars" for low-income
consumers is false, and such bars operate under strict regulatory
supervision. The pricing, ambience, and services of 4-star hotels are
generally unaffordable to common students.
(viii) The Hon'ble Supreme Court itself has held in the decision in State
of Kerala V. Surendradas [AIR 2014 Supreme Court 2762] that
hotels having four-star and above classification form a different and
distinct category when it comes to the grant of FL-3 licence.
9. After hearing the learned counsel appearing on both sides
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and perusing the directions issued by this Court in Ext.P14 judgment
referred to above, it is to be noticed that the official respondents were
directed to consider the impact of the judgment in Biju Joseph v.
Chacko (1992 (2) KLT 312) while considering the grant of an FL3
licence. Though Ext.P19 refers to the existence of the petitioners'
institution, there is no further consideration at all as directed in the
judgment in Biju Joseph (supra). The judgments referred to above that
directed the objections of the petitioners to be considered, have to be
understood as giving an opportunity before the grant of the licence
and not after, more so when objections were raised on account of the
existence of an educational institution much earlier and they had even
challenged the reduction of the distance ruling from 200 metres to 50
metres, albeit unsuccessfully. Though the objections of the petitioners
are noticed in Ext.P13 order passed by the Excise Commissioner, there
is no consideration of the same as directed in Ext.P14 judgment while
passing Ext.P20 order.
10. Taking note of the fact that the petitioners had all along
objected to the licence being granted to the 5 th respondent and had
alerted the respondents through Ext.P16 letter mentioned above
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regarding the inter partes judgments, I am of the view that the
petitioners ought to have been afforded an opportunity of hearing
before the grant of licence. Absent the same, the impugned orders
cannot be sustained.
11. Accordingly, the respondents will reconsider the issue of
grant of licence to the 5th respondent, after hearing the petitioners and
the 5th respondent, strictly in terms of the directions issued by this
Court in Ext.P14 judgment and the relevant Act and the rules. It will be
open to the parties to produce such materials to substantiate their
contentions, which will be adverted to by the official respondents
while taking a decision as directed above. However, taking note of the
fact that the 5th respondent had started functioning in September 2024,
I deem it appropriate to permit them to continue the operation for
three months from today, within which time the respondents will take
a fresh decision on the question of grant of licence to the 5 th
respondent as directed above. It is made clear that further
continuance, after three months, will be based on the orders to be
passed by the official respondents as directed above. Needless to say
that the impugned orders are not being quashed as such only for
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permitting the party respondent to carry on the activity as noted
above. A fresh decision shall be taken untrammelled by the interim
arrangement made herein, and strictly in accordance with the above
observations and in terms of the relevant Act and Rules.
The writ petition is disposed of as above.
Sd/-
MOHAMMED NIAS C.P.
JUDGE
okb/
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APPENDIX OF WP(C) 33795/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE TRUST DEED DATED 26.03.2003
EXECUTED BY ITS PATRON
Exhibit P2 TRUE COPY OF THE SUPPLEMENTARY DEED OF TRUST
EXECUTED ON 23.11.2020
Exhibit P3 TRUE COPY OF THE LAND TAX RECEIPT OF THE
DATED 23.06.2023 ISSUED BY THE VILLAGE
OFFICER, MUNDUR II VILLAGE
Exhibit P3 (1) ENGLISH TRANSLATION OF EXT.P3
Exhibit P3 (a) TRUE COPY OF THE LAND TAX RECEIPT DATED
23.06.2023 ISSUED BY THE VILLAGE OFFICER,
MUNDUR II VILLAGE, RELATED WITH PROPERTY IN
Exhibit P3 (a) (1) ENGLISH TRANSLATION OF EXT.P3(A)
Exhibit P3 (b) TRUE COPY OF THE TAX RECEIPT DATED 23.06.2023
RELATED WITH PROPERTY IN SY.NO.315/4, 317/4,
317/11, 317/7 AND 317/6 ISSUED BY THE VILLAGE
OFFICER, MUNDUR II VILLAGE
Exhibit P3 (b) (1) ENGLISH TRANSLATION OF EXT.P3(B)
Exhibit P3 (c) TRUE COPY OF THE LAND TAX RECEIPT DATED
23.06.2023 WITH RESPECT TO PROPERTY IN
Exhibit P3 (c) (1) ENGLISH TRANSLATION OF EXT.P3(C)
Exhibit P4 TRUE COPY OF THE LATEST PROVISIONAL
AFFILIATION U.O. NO.6183/2023/ADMN. DATED
04.04.2023 TO THE PROGRAMS OFFERED BY YIMS
(UN-AIDED), MUNDUR, PALAKKAD FOR THE ACADEMIC
YEAR 2023-24 ISSUED BY THE REGISTRAR,
UNIVERSITY OF CALICUT
Exhibit P5 TRUE COPY OF THE CERTIFICATE DATED 18.10.2022
ISSUED BY THE DIRECTOR, NATIONAL ASSESSMENT
AND ACCREDITATION COUNCIL TO YIMS
Exhibit P6 PHOTO OF THE HOTEL AND THE YUVAKSHETRA
COLLEGE (NEW BUILDING) SITUATED ON THE
SOUTHERN SIDE OF THE PALAKKAD - KONGAD ROAD
Exhibit P7 PHOTOS OF THE BOUNDARY WALL BETWEEN THE
PROPERTIES OF THE PETITIONERS' AND THAT OF
THE 5TH RESPONDENT
Exhibit P8 TRUE COPY OF THE PETITION DATED 06.01.2024
SUBMITTED BY THE 1ST PETITIONER BEFORE THE
4TH RESPONDENT
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Exhibit P8 (a) ENGLISH TRANSLATION OF EXT.P8
Exhibit P9 TRUE COPY OF THE PETITION DATED 06.01.2024
SUBMITTED BEFORE SRI. MAHIPAL YADAV, IPS,
EXCISE COMMISSIONER, GOVERNMENT OF KERALA
Exhibit P10 TRUE COPY OF THE PETITION DATED 11.01.2024
FILED BY THE PRESIDENT OF PTA, YIMS
Exhibit P10 (a) ENGLISH TRANSLATION OF EXT.P10
Exhibit P11 TRUE COPY OF THE REPORT NO.P6-9991/23 DATED
16.01.2024 OF THE 4TH RESPONDENT
Exhibit P11 (a) ENGLISH TRANSLATION OF EXT.P11
Exhibit P12 TRUE COPY OF THE JUDGMENT DATED 30.01.2024 IN
Exhibit P13 TRUE COPY OF THE ORDER NO. EXC/172/2024-XC6
DATED 21.03.2024 ISSUED BY THE 3RD RESPONDENT
Exhibit P14 TRUE COPY OF THE JUDGMENT DATED 07.08.2024 IN
Exhibit P15 TRUE COPY OF THE JUDGMENT DATED 19.08.2024 IN
Exhibit P16 TRUE COPY OF THE COVERING LETTER DATED
06.09.2024 FORWARDING EXT.P15 TO THE 3RD
RESPONDENT
Exhibit P17 PHOTOS SHOWING SALE OF FOREIGN LIQUOR IN THE
BAR COUNTER OF THE 5TH RESPONDENT BAR VIZ.
ARK HOTEL AND CONVENTION CENTRE
Exhibit P18 PHOTO SHOWING ERECTION OF THE SIGN BOARD
‘BAR' BEFORE ARK HOTEL AND CONVENTION
CENTRE
Exhibit P19 TRUE COPY OF THE HOTEL (RESTAURANT) LICENSE
IN FORM FL3, ISSUED IN THE NAME OF THE 5TH
RESPONDENT DATED 12.09.2024
Exhibit P20 TRUE COPY OF THE ORDER NO. FFL3/2023/00053
DATED 12.09.2024 ISSUED BY THE 3RD RESPONDENT
Exhibit P21 TRUE COPY OF THE LETTER NO. A2/14/2024-TAXES
DATED 06.09.2024 ISSUED BY THE 1ST RESPONDENT
