Thottathil B. Radhakrishnan, J.@mdashThe Petitioner, in the first among the captioned matters, filed an application for FL-3 license in terms of the
Foreign Liquor Rules. The Circle Inspector of Excise reported to the Assistant Excise Commissioner that the site is an unobjectionable one, though
there is a thycavu (niskarapally), which is not a place where Juma prayers are being offered. Accordingly, the Assistant Commissioner forwarded
the application with the recommendation that the licence could be granted as applied for. However, the Deputy Commissioner of Excise reported
to the Joint Commissioner that though not mentioned in the petition by the President of the Karamana Juma-Ath, a hostel housing the students of
the Ayurveda College is at a distance of 140 metres from the proposed site for the Bar and the distance from the Hotel to the main gate of the
Panchakarma Hospital is 230 metres and that the main gate of the Panchakarma Hospital is generally used by the public. The Joint Commissioner
thereafter personally inspected the proposed site and noted that though the distance of the proposed Bar from the Poojapura Ayurveda Research
Institute is 230 metres, and the distance from the gate on the eastern side of the compound, which is for entry to the hostel is only 140 metres. It
was reported that the so-called thycavu is in a land which stands in the name of one Mohanan Nair and therefore there is no material to hold that it
is a public place. With the aforesaid materials, the Commissioner of Excise issued the order impugned in these writ petitions on 7-9-2009 holding
that the applicant is ineligible for FL-3 license in the site in question which is within the prohibited distance of 200 metres from an educational
institution, viz. Ayurveda College Hostel in Poojappura. The Commissioner held that the Niskarappally at Poojappura is not an objectionable
structure for the purpose of grant of FL-3 license to the applicants. Hence these writ petitions.
2. Though faintly, it was suggested by the learned Counsel for the Petitioner in W.P. (C) 27360 of 2009 at the time of final hearing that the
impugned order is revisable. If that argument is to be accepted, then all these writ petitions may have to go. But, the parties have addressed
arguments even on merits and a Commissioner''s report is also on record touching the controversy between the parties.
3. The Petitioner in W.P. (C) 27007 of 2009, who hereinafter is referred to as the ''applicant'', contends that the findings in the impugned order
that the Ayurveda College Hostel is an educational institution and is within the prohibited distance of 200 metres from his hotel is unsustainable in
law and on facts. On the basis of his pleadings, it is argued that the Government Ayurveda College is not situated anywhere near Poojappura and
the Panchakarma Ayurveda Hospital and Research Centre in Poojappura are situated in about 25 acres and the distance between its main gate
and the applicant''s hostel is 230 metres. It is contended that though there are four gates for the said hotel compound, the gate to be taken note of
is the main gate, which is generally used by the general public. In support of the applicant''s contentions, his learned senior counsel argued that the
decision of this Court in State of Kerala v. Sukumaran 1988 (2) KLT 261 laying down that the hostel is part of an educational institution, has no
application because of the indisputable fact that the educational institution viz., Government Ayurveda College, Thiruvananthapuram, is situated far
away from Poojappura and the mere facility for the students to stay, does not make the so-called hostel at Poojappura, part of the educational
institution--The Government Ayurveda College. To drive home this point, the learned Counsel relied on the decision of this Court in Josegiri
Hospital v. Government of Kerala 2008 (3) KLT 627 wherein it was held that dormitory, boarding house and hostel of students do not form part
of the integral, immediate and proximate activities of education of students. It is argued that in terms of Rule 13(3) of the Foreign Liquor Rules, the
application for license has to be submitted to the Assistant Commissioner and it is that officer who is duty bound to look into the factual aspects
and report the relevant matters for consideration of the Commissioner and in that statutory process, the intermediary Abkari Officers including
Deputy Commissioner and the Joint Commissioner have no say.
4. The learned Counsel appearing for the objectors, the Petitioners in W.P. (C) 27360 of 2009 and W.P. (C) 29594 of 2009, argued that thycavu
is a place where muslims offer prayers and that this issue is covered by the judgments of this Court Thilakan Vs. Commissioner of Excise, . It was
thus contended that the findings in the impugned order that thycavu in the locality is not an objectionable structure in relation to the site in question
is unreasonable and liable to be interfered with.
5. The learned Government Pleader argued that the impugned order does not warrant interference and contains findings of facts which have not
been pleaded or proved to be vitiated by illegality, irrationality or procedural impropriety. The decision of this Court in Tiroorangadi Muslim
Orphanage Committee v. Government of Kerala and Anr. 2007 (2) K.H.C. 822 rendered referring to Council of Civil Service Unions v. Minister
for Civil Service 1985 A.C.C. 374 was referred to.
6. Before proceeding further, it needs to be noted that one of the objectors, viz. the Petitioner in W.P. (C) 27360 of 2009 has filed O.S. No. 933
of 2008 before the MunsifPs Court, Thiruvananthapuram seeking perpetual injunction against the applicant from vending liquor in the hotel.
7. First, I shall deal with the contentions of the objectors in relation to the finding to the extent that the so-called thycavu is no objection for granting
the license in question. The materials on record before the Commissioner tend to suggest that the building, which is shown as a thycavu stands in
the name of one Mohanan Nair. With the materials and additional materials being placed before this Court, the Petitioner in W.P. (C) 29594 of
2009, one of the objectors, essentially, tries to demonstrate that the title to the said property vests in a Jama-Ath or a Trust and the Commissioner
ought not to have decided otherwise. That issue is also the subject-matter of the suit noted above. Leaving aside that the present fact situation
appears to be that even if there was transfer of title, the revenue records and the Corporation assessment records are yet to be appropriately
modified. With all this, is the contention of the applicant that the documents shown by the objectors relate to yet another parcel. These disputed
questions of fact are not to be gone into in these writ petitions. They cannot be resolved on the basis of affidavits. Not only that, the resolution of
that dispute, in this case, will not by itself, terminate this litigation in favour of the objectors. On the basis of the materials then available on record,
the Commissioner cannot be treated to have acted illegally, irrationally, improperly or irregularly in arriving at the decision that so-called thycavu is
not a structure, which could be treated as within the objectionable distance from the site in relation to which the license is sought for. The findings in
that regard are neither perverse nor totally unavailable on records that were available before the Commissioner. Those findings do not therefore,
warrant interference under Article 226 of the Constitution of India.
8. In so far as the question relating to the educational institution is concerned, it needs to be noted that the decision in Josegiri''s case (supra) was
rendered by this Court on the question whether dormitory, boarding house and hostel of students form integral, immediate and proximate activities
to education, to fall within the expression,''educational purpose'' as enjoined by Section 3(1)(b) of the Kerala Building Tax Act, 1975. Firstly, that
is a fiscal legislation. More importantly, the question that was considered was as to exemption from a fiscal license. Interpretations placed on fiscal
legislations, particularly exemptions therefrom, cannot be imported into the domain of abkari laws and interpretation thereof.
9. The Division Bench in Sukumaran''s case (supra) held that the purpose of keeping the student community away from the vicinity of the liquor
vending premises is a matter of prime concern. This principle has been adopted by the Division Bench in State of Kerala v. Vijayakumar 2009 (1)
K.LT. 578. That decision was unsuccessfully challenged by the State before the Apex Court. In Sukumaran''s case (supra), the Bench held that
the object of the rule prescribing the prohibited distance is to ensure that the student community is not exposed to the vice of consumption of
liquor. That consumption of liquor is constitutionally recognized 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. The
Bench went on to state that even otherwise, there would be no hesitation to take the view that hostel attached to educational institution being an
integral part of education must be reckoned as part and parcel of the educational institution, and that is a reasonable interpretation, having regard to
the object of the rule under consideration, which obviously is that the student community shall not be exposed to the vice of consumption of liquor.
Applying that principle, it does not matter even if the situs of the hostel which is the house of residence for students is away from the place where
education is imparted, that is the College. It would be incongruous to the requirement of insulating an educational institution, if it is to be held that
there could be a liquor vending point near a hostel which is away from the College, though the students to whom instructions are imparted in the
College, stay in the hostel in question. The nexus between the hostel and the College where instructions are imparted, is not to be measured by the
distance to be traversed by the student, from the college to the hostel. The proximity between the hostel and the college is to be understood with
reference to the purpose for which a hostel is provided in relation to a college. The hostel is where the student lives what is expected of an orderly
life of a student, in connection with his undergoing the course of study imbibing the instructions that are imparted in the college. Whatever be the
physical distance between the building which houses the college and the building which houses the hostel, the content of the activities of the hostel is
part of the sublime activities of the college, which is nothing but imparting instructions as part of education. Therefore, it cannot but be held that a
hostel is an integral part of the educational institution even if it is away from the college building in the mundane materialistic sense. This is only the
manner in which the concept of educational institution could be understood in relation to a college and its hostel, for the purpose of the prohibitions
contained in the Foreign Liquor Rules.
10. Turning to the facts of the case in this regard, the Commissioner has found in the impugned order that the report of the Joint Commissioner
shows that there is a men''s hostel within the Panchakarma Ayurveda Medical College Complex. The students of the Government Ayurveda
Medical College Hostel, Thiruvananthapuram stay in that hostel. Though the entire land housing the Panchakarma Ayurveda Medical College is
about 25 acres, the hostel is at one extreme comer, ""having separate fencing and gate on the eastern side opening to the tarred public road in front
of it"". The Commissioner also found that the ""hospital compound and the remaining part of the hospital complex are connected by a wicket gate
which of course is not motorable"". Annexure C-1 sketch produced by the Advocate Commissioner, along with his report dated 6-10-2009 filed in
WP(C) 27007 of 2009 shows that the Poojappura-Thirumala Road branches off towards Mudavanmughal and the proposed site (Hotel Sabari
Park) is aside that road. The main gate of the hotel opens on to the Poojappura-Mudavanmughal Road. Kesavan Nair Road branches off from
that road and gate G5 in that road is shown as the gate to the hostel building. In his additional report dated 20-10-2009, following subsequent
inspection in terms of the order of this Court, the Advocate Commissioner has stated, in paragraph 5 thereof, that the hostel faces east and there is
a board in the east west direction, fixed in Kesavan Nair Road outside the gate on the southern side. The undisputed Ext. R-4(a) photographs
clearly show the gate, which is G-5 in the aforesaid Annexure C-1 sketch. Those photographs vividly demonstrate that a separate gate is provided
for the hostel and that the hostel is meant for the students of the Government Ayurveda College. From that gate, the distance to the applicant''s
hostel site is 177 metres as found by the Advocate Commissioner. The findings on facts, in that regard, in the impugned order therefore remains
unassailable.
11. For the aforesaid reasons, there is no ground to interfere with the impugned order on this issue also.
In the result, these writ petitions fail. They are accordingly dismissed. No costs.