IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 17TH FEBRUARY 2009 / 28TH MAGHA 1930 WA.No. 1076 of 2008() --------------------- AGAINST THE JUDGMENT IN WPC 34249/07 APPELLANT(S): RESPONDENTS 1 TO 4 IN WPC --------------------------------------- 1. STATE OF KERALA REP. BY SECRETARY TO GOVERNMENT, DEPARTMENT OF TAXES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF TAXES, EXCISE COMMISSIONERATE, THIRUVANANTHAPURAM. 3. ASST. EXCISE COMMISSIONER, ALAPPUZHA. 4. THE CIRCLE INSPECTOR OF EXCISE, KUTTANAD EXCISE RANGE, ALAPPUZHA. BY GOVERNMENT PLEADER SRI. NOBLE MATHEW RESPONDENT(S): PETITIONER IN THE WPC ------------------------------------ UDAYAMMA MANOHARAN, W/O.LATE K.K.MANOHARAN, KOCHUKAYALCHIRA, PONGA, KAINAKARI, KUTTANAD, ALAPPUZHA DISTRICT. BY ADV. SRHI. N. REGHURAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17/02/2009, ALONG WITH WPC NO. 23765 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 1076 of 2008 & W.P.(C).No. 23765 of 2008 D - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of February, 2009 JUDGMENT Balakrishnan Nair, J. W.A.No.1076 of 2008 The respondents in the writ petition are the appellants. The writ petitioner is the respondent herein. The writ petitioner's husband was the licensee of Toddy Shop No.44 of Kuttanad Excise Range. The last of the licences issued in favour of the said shop was during the financial year 2000 - 2001. The site of the toddy shop was objectionable as the same was within the prohibited distance of a Church. By virtue of the exemption orders issued by the Government, as per G.O.(Ms) No.74/99/TD dt.21.4.1999, the shop was licensed in the very same premises for the year 2000 - 2001. Thereafter, there was a change in the W.A.No. 1076 of 2008 & W.P.(C).No. 23765 of 2008 2 Abkari Policy and the Workers' Co-operative Society was granted the privilege to run the toddy shops in the above Excise Range. But the said Co-operative Society has not chosen to apply for licence to run the shop for the year 2001 - 2002. As part of the new Abkari policy, 1000 toddy shops in the State were abolished for the year 2002 - 2003. One of them was T.S.No.44 of Kuttanad Excise Range. As per the Abkari policy for the year 2007 - 2008, the cancelled toddy shops were restored and consequently T.S.No.44 was also restored and it was re- numbered as T.S. 108 of Group VII of Kuttanad Excise Range. 2. The petitioner applied for licence for the said shop for the year 2007 - 2008 as per Ext.P4. The petitioner claimed the benefit of the second proviso to Rule 7(2) of the Kerala Abkari Shops Disposal Rules, 2002, so that she could house the shop in the very same premises where it was earlier run. Since the application was not considered, the petitioner approached this Court seeking a writ of mandamus to direct respondents 3 and 4 to process the petitioner's W.A.No. 1076 of 2008 & W.P.(C).No. 23765 of 2008 3 application in the light of the second proviso to Rule 7(2) of the aforementioned Rules and to grant the licence. 3. The respondents, who are the appellants herein, resisted the writ petition stating that the case of the petitioner is not covered by the proviso. After hearing both sides, the learned Single Judge upheld the contentions of the petitioner and a direction was issued to grant the licence to her. The aggrieved respondents have come up in appeal. 4. We heard the learned counsel on both sides. 5. The second proviso to Rule 7(2) as it stood at the relevant time reads as follows: “Provided further that the restrictions regarding distance from an Educational Institution, Temple, Church, Mosque, Burial ground and Scheduled Caste/Scheduled Tribes Colonies for locating toddy shops shall not apply to those shops which remained unlicensed for want of unobjectionable site and which are for that reason sought to be located at the same place where they were licensed in previous years availing of the exemptions given to them by notifications/Government orders in this regard.” W.A.No. 1076 of 2008 & W.P.(C).No. 23765 of 2008 4 For getting the benefit of the above proviso, the shop concerned should have remained unlicensed for want of unobjectionable site and for that reason the same is sought to be located at the same place where it was licensed in the previous years, availing exemptions given to it by Notifications/Government orders in this regard. 6. In this case, we notice that the shop was not licensed for the year 2001 - 2002 because of the fact that the Workers' Co-operative Society which got the privilege to vend toddy has not chosen to submit any application for licence. Subsequently it remained unlicensed because there was no shop at all as it was abolished by the Government. The toddy shop was ordered to be re-established only during the financial year 2007 - 2008. So, it was not a shop which remained unlicensed for want of unobjectionable site, which is the first ingredient for the application of the second proviso to Rule 7(2). It remained unlicensed for the year 2001 - 2002 because the Workers' Co-operative Society did not apply for licence. Thereafter, it remained unlicensed as the shop itself was abolished. Therefore, we feel that W.A.No. 1076 of 2008 & W.P.(C).No. 23765 of 2008 5 on the facts of the case, the second proviso to Rule 7(2) of the Kerala Abkari Shops Disposal Rules, 2002 is not attracted. Therefore, the direction given by the learned Single Judge cannot be sustained. Accordingly the Writ Appeal is allowed and the Writ Petition is dismissed. W.P.(C) 23765 of 2008 7. The petitioner herein, who has got the privilege to vend toddy for the year 2008 - 2009 in T.S.No. 44 (which was later re-numbered as T.S. 108 and now re-numbered as T.S. 107) is claiming the benefit of Ext.P5 judgment in W.P.C. 34249 of 2007 for locating the toddy shop in the premises where it functioned during the year 2000 - 2001. Since we have already reversed Ext.P5 judgment in Writ Petition 34249 of 2007 as per the judgment in W.A.No.1076 of 2008, the prayer of the petitioner cannot be granted. 8. Accordingly, this Writ Petition is dismissed. But this will not affect the rights of the petitioner to house the aforementioned toddy W.A.No. 1076 of 2008 & W.P.(C).No. 23765 of 2008 6 shop in some unobjectionable site within the notified limits of the schedule of the shop. (K. BALAKRISHNAN NAIR) Judge (M.L. JOSEPH FRANCIS) Judge tm