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Kumar v Western Divisional Liquor Tribunal [2005] FJHC 668; HBM0027.2004L (14 March 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBM0027 OF 2004L

BETWEEN:

JAIN KUMAR
Appellant

AND:

WESTERN DIVISIONAL LIQUOR TRIBUNAL
Respondent

Counsel for the Appellant: Mr. R. Gordon
No Appearance for the Respondent

Date of Hearing & Judgment: 14 March 2005

EXTEMPORE JUDGMENT

This matter comes before the court by way of a special case filed pursuant to section 27(1) of the Liquor Act (Cap. 192). A special case once filed with the court is to be dealt with as if it were a stated case pursuant to the provisions of Part X of the Criminal Procedure Code.

The Western Division Liquor Tribunal has stated the case and in doing so, has set out the facts, the grounds of determination and the opinion of the Tribunal. Attached to and forming part of the case stated is the judgment of the Tribunal, the record of Tribunal and the objections and reports that were before the Tribunal when it made its determination.

The Tribunal concluded that the application be dismissed on the basis that the reasonable requirements of the neighbourhood did not justify the grant of the off licence to the applicant.

Section 51(2) sets forth the objections that may be made to the grant of a new off licence. Section 51(2)(e) states:

“That the reasonable requirements of the neighbourhood do not justify the grant of such licence.”

The ground upon which the Tribunal refused the application is indeed an available ground for refusal.

The Tribunal in its judgment identified that the only ground for consideration of the application, was that the reasonable requirements of the neighbourhood did not justify the grant of another licence in the area as all other criteria were met. The Tribunal went on to consider that Kermode Road is a densely populated residential area and that Sukanaivalu and Tavakubu Roads are also heavily populated residential areas. The judgment sets forth that the likely population of Kermode Road is about 100 residents and that there are two existing outlets in the area, the Carlton Brewery and an outlet on Bavadra Road, some 800 metres away.

Reports were furnished to the Tribunal by Lautoka City Council, which did not oppose the application, and by the District Officer Lautoka/Yasawa who recommended the approval of the licence. It appears that this report is the source of the reference to Kermode Road having a population of about 1,000 people.

The report in fact says:

“The building is new and will be the only liquor shop in Kermode Road, an area that has about 1,000 population excluding public from Kashmir and nearby residential areas.”

The investigating officer, PC 2175 Ajay Kumar in his report recommended that the applicant be given a liquor licence that there is no liquor shop available in the area.

There is nothing in the judgment of the Tribunal to indicate that it considered what the relevant neighbourhood was; is it merely Kermode Road, is it Kermode Road, Sukanaivalu Road and Tavakubu Roads or is it an area that takes in Kashmir. It is submitted on behalf of the appellant, that the neighbourhood includes most relevantly the Kashmir residential area which it is further submitted as a growing residential area.

By virtue of the provisions of section 27(1) of the Liquor Act, an appeal to this court lies only where the decision of the Tribunal is erroneous in point of law. It is submitted by the appellant the failure of the Tribunal to define the neighbourhood to enable it to then consider whether the reasonable requirements of that defined neighbourhood have been met or exceeded is indeed an error of law. With this submission I agree.

The Tribunal has clearly failed to identify the neighbourhood and therefore any determination that it has made as to whether or not the reasonable requirements of that undefined neighbourhood have been met or not must indeed be an error.

Accordingly in the circumstances, it appears to me that the order of the Tribunal should be quashed, in lieu thereof the application granted and I order accordingly.

JOHN CONNORS
JUDGE

At Lautoka
14 March 2005