IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 1ST JULY 2011 / 10TH ASHADHA 1933 WP(C).No. 14684 of 2011(I) --------------------------------------- PETITIONER(S): ------------------------ 1. SATHEESAN T., S/O.VELUKUTTY, THONNITHODI HOUSE, VELLAYUR, NILAMBUR, MALAPPURAM DISTRICT. 2. SURESH BABU O., S/O.VELAYUDHAN, OOTTUPURATH HOUSE, CHEMBRASSERY, PANDIKKAD, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): -------------------------- 1. THE DEPUTY EXCISE COMMISSIONER, MALAPPURAM, PIN-676 505. 2. THE CIRCLE INSPECTOR, EXCISE CIRCLE OFFICE, MANJERI, MALAPPURAM DISTRICT, PIN-676121. R1 & R2 BY GOVERNMENT PLEADER SRI.M.MUHAMMED SHAFI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.14684/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE MINUTES OF THE TODDY SHOP WORKERS MEETING HELD ON 01/04/2011. P2 COPY OF THE COMMUNICATION ISSUED TO THE 1ST PETITIONER DATED, 17/5/2011 BY THE 2ND RESPONDENT. P3 COPY OF THE APPLICATION SUBMITTED BY THE FIRST PETITIONER DATED, 01/4/2011 TO THE 2ND RESPONDENT. P4 COPY OF THE APPLICATIONS SUBMITTED FOR EACH SHOPS UNDER GROUP VII OF MANJERI EXCISE RANGE BY THE FIRST PETITIONER. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts C.T. RAVIKUMAR, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P.(C)No. 14684 OF 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of July, 2011 J U D G M E N T The petitioners are abkari workers registered under the Abkari Workers Welfare Fund Act. The first petitioner is also the convener of the employees working in Group VII of Manjeri Excise Range that consists of six toddy shops. The second petitioner is an employee in one of the six toddy shops. There was no licensed contractors in respect of the said six toddy shops. In the said circumstances the second respondent issued Ext.P2 communication to the petitioner intimating him of the proposal to entrust him all the six toddy shops by way of departmental management scheme. In fact, prior to the issuance of Ext.P2 first petitioner has submitted Ext.P3 application to the second respondent virtually requesting to entrust the said toddy shops with the employees under Group VII of Manjeri Excise Range under the Departmental management scheme. Thereafter, he had submitted Ext.P4 series of applications for licence in respect of the said toddy shops and also permission to pay tree tax for the toddy WPC.No.14684/2011 : 2 : tapping. The petitioner was then informed that in respect of toddy shop No.38 of Chembrassery Toddy Shop, the application could not be entertained as there are complaints with respect to the said toddy shop to the effect it lies within the prohibitory distance. It is in the said circumstances that this writ petition has been filed mainly with a prayer to issue a writ of mandamus commanding the respondents to grant licence under the departmental management scheme to toddy shop No.38, Chembrassery under Group VII of Manjery Excise Range as applied by the first petitioner. 2. The main contention of the petitioner is that the said toddy shop had been functioning in the very same premises for the past 23 years or thereabouts. In the said circumstances, in the light of 2nd proviso to Rule 7(2) of the Abkari Shops Disposal Rules(for short 'Rules') licence could not be denied on the ground that the said shop lies within the prohibitory distance. A statement has been filed in this writ petition by the second respondent. It is stated therein that the building in which the Chembrassery Toddy Shop(building No.V/287 of Pandikkad Gramma Panchayat) is situates within the prohibitory distance in terms of the provisions under rule WPC.No.14684/2011 : 3 : 7(2) of the Rules and that the shop remained unlicensed and closed. Thus, it is evident that the reason for denying licence in respect of toddy shop No.38 of Chembrassery is that the premises wherein it is proposed to be conducted lies within the prohibitory distance. As already noticed, the specific contention of the petitioner is that the said shop had been functioning in the very same premises all through out the past 23 years. The said specific contention of the petitioner was not refuted in the statement. That apart, it is evident from the statement that till 31.3.2011 it had been functioning therein. In the context of the contention it is relevant to refer to proviso to Rule 7(2) of the Rules. It reads thus:- 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 licenced in previous years availing of the exemptions given to them by notifications/Government orders in this regard. In the context of the contentions it is also relevant to refer to a decision of a bench of this Court in Venu v. Commissioner of Excise reported in 2010(1)KLT 771. I am of the view that in view of the second proviso to Rule 7(2) and also in the light of the decision of Venu's case (Supra) the objection WPC.No.14684/2011 : 4 : regarding the distance rule would thus apply only if the shop in question was housed in a different building during the yester years. In this case, admittedly, the shop in question had been functioning in the same premises all through out and, in fact, till 31.3.2011 it was functioning in the same premises. In the said circumstances, I am of the considered view that the objection raised for not entertaining the application for the petitioner for licence raising the aforesaid objection is wholly unsustainable. Consequently, there will be a direction to the first respondent to consider the application for licence submitted by the petitioner in respect of Toddy shop No.38 of Chembrassery and pass appropriate orders in terms of the relevant provisions and in the light of the observations in this judgment. This shall be done expeditiously, at any rate, within a period of two weeks from the date of receipt of copy of this judgment. Sd/- C.T.RAVIKUMAR, Judge jma //true copy// P.A to Judge