A.M. Khanwilkar, J. - (1.) The Respondent constructed a hotel which has been classified as Heritage (Basic) Category for five years (w.e.f. 1st March, 2012 till 28th February, 2017). The Respondent submitted an application for grant of a Beer/Wine Bar FL-11 Licence under the Foreign Liquor Rules. That application was processed by the Deputy Commissioner of Excise, Palakkad. On the basis of the report submitted by the said authority, the Excise Commissioner of Thiruvananthapuram forwarded his recommendation to the Secretary to Government Taxes Department, Government of Kerala, vide a letter dated 28th March, 2012. The Excise Commissioner duly recommended grant of sanction for FL-11 License to the Respondent as per the rules. While the said recommendation was pending consideration before the State Government, the Foreign Liquor Rules came to be amended on 18th April, 2012. The amendment inter alia prescribes the minimum distance of 200 metres from an objectionable institution. The report submitted by the Deputy Commissioner of Excise records the distance between the gate of the hotel of the Respondent and the nearest objectionable institution (being Sree Bhagwati Ayappa Temple, Karuvannurthara) as 70 metres only. Consequent to the amendment to the Foreign Liquor Rules, the Government vide letter No. 8028/A2/2012/TD dated 26th April, 2012, called upon the Excise Commissioner, Thiruvananthapuram to examine the proposal of the Respondent. The Excise Commissioner, by a speaking order passed on 5th June, 2012, came to the conclusion that the application submitted by the Respondent deserved to be rejected and directed it to be returned to the Deputy Commissioner of Excise, Palakkad.
(2.) For answering the controversy at hand, we deem it apposite to reproduce the said communication in its entirety: "PROCEEDINGS OF THE EXCISE COMMISSIONER, KERALA THIRUVANANTHAPURAM (Present: Sri. A. Ajith Kumar IAS) Sub:- Excise- Abkari-Application for FL-11 licence to Palkkad Heritage Hotels, Koduvayoor, Palakkad rejected -orders issued. Read:- (1) Govt. Letter No. 8028/A2/2012/TD dated 26/04/2012 (2) Letter No. CZ3-577/12 dated 19.03.2012 of the Joint Excise Commissioner, Central Zone, Ernakulam. (3) Letter No. P-6-1611/12 dated 16/03/12 & 21/03/2012 of Deputy Commissioner of Excise, Palakkad. (4) Application dated 01/03/2012 of Sri. M.J. Thomas (5) GO (Ms) No. 107/11/TD dated 17/08/11 (6) GO (P) No. 72/2012/TD dated 18/04/12 ORDER NO. XC6-7476/12/K. Dis Dated 05.06.2012 The Joint Excise Commissioner, Central Zone, Ernakulam has forwarded, vide letter read as 1st above, an application submitted by Sri. M. J. Thomas, Managing Partner, M/s Palakad Heritage Hotels, Eroor P.O. Ernakulam requesting sanction for FL-11 licence in his name to the Palakkad Heritage Hotels, Koduvayoor, Palakkad having a valid heritage basic category classification certificate vide order No. 27/HRACC (08)/2011 dated 09.03.2012 of the Member Secretary (HRACC) Ministry of Tourism, Government of India, Chennai. The hotel is situated in Re. Sy. No. 673/8-1 Koduvayoor Village in Chittur Taluk bearing door No. XI/324 of Koduvayoor Grama Panchayat in Palakkad District. The Deputy Commisisoner of Excise, Palakkad has reported that the nearest objectionable institution is the Sree Bhagavathy Ayyappa Temple, Karuvannurthara which is 70 meters away from the gate of the hotel. Before the amendment made vide Government order read as 6th above, as per rule 13 (3) of Forensic Liquor Rules, there was a restriction that no FL-3 licence shall be issued to hotels which are located within 200 meters from objectionable site (educational institution, temple, church, mosque or burial ground, schedule caste/schedule tribe colony ) but those hotels other than in the private sector having four, five star, five star deluxe classification will be exempted from the distance restrictions in the interest of promotion of tourism and also in the case of hotels in private sector of above categories and hotels having heritage, heritage grand and heritage classic classification is issued by Ministry of Tourism, Government of India, the distance limit was only 50 meters from objectionable site. Vide Government order read as 6th above, the said rule is modified by deleting the exemption of distance restrictions in the case of hotels in private sector of above categories, thereby at present the distance limit to those hotels in private sector of above categories, thereby at present the distance limit of those hotels in private sector of all categories from the objectionable site is 200 meters. In the above circumstances and as reported by the Joint Excise Commissioner, Central Zone, Executive and Deputy Commissioner of Excise, Palakkad and since the nearest objectionable institution viz. the Sree Bhagavathy Ayyappa Temple, Kanvannurthara is located only 70 metres away from the gate of the hotel the application read as 4th above is hereby rejected and returned to the Deputy Commissioner of Excise, Palakkad. Sd/- Excise Commissioner"
(3.) Against this decision, the Respondent filed a writ petition before the High Court of Kerala, being Writ Petition (C) No.14220 of 2012 for the following reliefs: "i) call for the records leading to Ext. P7 and quash the same by issuing a writ of certiorari or other appropriate writ, order or direction; ii) declare that petitioner is entitled to get an FL-11 licence as per Ext. P-2 application. iii) Declare that Ext. P6 amendment to the extent it introduce distance of 200 meters from objectionable institutions for getting FL-11 license is discriminatory and without any basis; iv) Declare that if the hotels located within 200 meters from objectionable institutions are permitted to conduct the licenses, the petitioner is also entitled to get license as per Ext. P2 application; v) Issue a writ of mandamus or other appropriate writ, order or direction commanding the respondent 1 to 5 to issue an FL-11 license under Rule 13 (11) of the Foreign Liquor Rules, beer/wine parlour license, vide Ext. P-2 application on the basis of the rule/law prevailed on the date of Ext. P-5 (28.3.2012); vi) Issue a writ of mandamus or other appropriate writ, order or direction commanding the respondents 1 to 5 not to renew FL-3 and FL-11 licenses, which are conducting within 200 meters from the objectionable institutions, if the petitioner is denied FL-11 license; and vii) Grant such other and further relief as this Hon'ble Court may deem fit and proper in the interest of justice.";