IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 7TH OCTOBER 2010 / 15TH ASWINA 1932 WP(C).No. 6925 of 2010(S) ------------------------- PETITIONER: --------------- G.SUDHEESH KUMAR, AGED 37 YEARS, S/O.GOPINATHAN NAIR, SHAYAMALAYAM, THIRUVALLOM.P.O, THIRUVANANTHAPURAM. BY ADV. SRI.A.X.VARGHESE SRI.A.V.JOJO SRI.BRIJESH MOHAN RESPONDENTS: --------------- 1. THE COMMISSIONER OF EXCISE, GOVT.OF KERALA, PARK VIEW, THIRUVANANTHAPURAM. 2. THE DEPUTY COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. 3. THE ASSISTANT EXCISE COMMISSIONER, GOVT.OF KERALA, THIRUVANANTHAPURAM. 4. THE EXECUTIVE ENGINEER, NATIONAL HIGHWAY DIVISION, P.W.D., THIRUVANANTHAPURAM. 5. THE CIRCLE INSPECTOR OF EXCISE, THIRUVANANTHAPURAM. 6. THE CORPORATION OF THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE COMPLEX, PARK VIEW, THIRUVANANTHAPURAM. 7. ANILKUMAR, "BABA NILAYAM", UPANIYOOR DESOM, KALLIYOOR VILLAGE, THIRUVANANTHAPURAM. 8. KOMALAN, S/O.CHANDRANANDAN, "MUDUPIRRAVILA PUTHENVEEDU", KATTACHANKUZHI, VENGANOOR, THIRUVANANTHAPURAM. 9. RADHAKRISHNAN, S/O.KRISHNAN, PANAVILA VEEDU, KOTTUKAL, THIRUVANANTHAPURAM. ADDL. RESPONDENT: 10. SREEKUMARAN, S/O.KUMARA PANICKER, VAZHAVILAKATH MELEPUTHENVEEDU, NEYYATTINKARA TALUK, AVIYANNOOR VILLAGE, TRIVANDRUM. (ADDL. RESPONDENT IS IMPLEADED VIDE ORDER DT.20.5.2010 IN I.A. NO.6269/2010.) ADV. SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE FOR R6 SRI.P.K.MANOJKUMAR FOR R6 G.P. SRI.BASANT BALAJI FOR R1 TO 5 SRI.M.G.KARTHIKEYAN FOR R8 SRI.NIREESH MATHEW FOR ADDL.R10 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: P1: TRUE COPY OF JUDGMENT DT.6.11.2009 IN W.P.(C) 20522/2009 OF THE HON'BLE HIGH COURT. P2: TRUE COPY OF ORDER DT.14.1.2010. P3: PHOTOGRAPHS OF TODDY SHOP PRIOR TO THE PASSING OF EXT.P2 ORDER. P4: TRUE COPY OF ORDER DT.6.5.2009. P5: TRUE COPY OF ORDER PASSED BY R6 DT.15.9.2009. P6: PHOTOGRAPHS SHOWING THE PRESENT CONDITION OF THE TODDY SHOP. P7: TRUE COPY OF STATEMENT FILED BY R4 HEREIN IN W.P.(C) 17408/2009. P8: TRUE COPY OF ORDER DT.17.5.2010. P9: TRUE COPY OF JUDGMENT DT.5.5.2009 IN WPC NO.13104/2009 OF THE HON'BLE HIGH COURT. P10: TRUE COPY OF JUDGMENT DT.26.5.2009 IN WPC NO.13159/2009 OF THE HON'BLE HIGH COURT. P11: TRUE COPY OF PLAN PREPARED BY THE PRIVATE SURVEYOR NAMELY SREEJITH.R. P12: TRUE COPY OF AFFIDAVIT OF THE WORSHIPERS OF THE PADAYARAKAM KAVU DT.2.10.2010. P13: TRUE COPY OF NOTICE DT.4.10.2010 WITH REGARD TO AYILYA POOJA. P14: TRUE COPY OF RECEIPT DT.26.7.2010. RESPONDENT'S EXHIBITS: R8(a): PHOTOCOPY OF LICENCE NO.22/2009-10 IN RESPECT OF TODDY SHOP NO.3/09-10 ISSUED BY THE DEPUTY EXCISE COMMISSIONER, TRIVANDRUM DT.2.7.2009. R8(b): PHOTOCOPY OF AFFIDAVIT FILED ON BEHALF OF R5 IN W.P.(C) NO.17408/2009 BEFORE THIS HON'BLE COURT, DT.3.8.2009. R8(c): PHOTOCOPY OF STATEMENT FILED ON BEHALF OF R3 IN WPC NO.17408/2009 BEFORE THIS HON'BLE COURT, DT.20.7.2009. R8(d): PHOTOCOPY OF JUDGMENT DT.6.8.2009 IN WPC NO.17408/2009 PASSED BY THIS HON'BLE COURT. R8(e): PHOTOCOPY OF I.A. NO.10056/2009 IN WPC NO.20533/2009 FILED BEFORE THIS HON'BLE COURT, DT.10.8.2009. TRUE COPY P.S. TO JUDGE C.R. C.N.RAMACHANDRAN NAIR & K.SURENDRA MOHAN, JJ. .................................................................... W.P.(C) No.6925 of 2010 .................................................................... Dated this the 7th day of October, 2010. JUDGMENT Ramachandran Nair, J. This is a pubic interest litigation filed challenging Ext.P2 whereunder the Commissioner of Excise has reconfirmed entitlement of the party respondent to carry on toddy business in the toddy shop located on the road side in Thiruvallam. The petitioner's specific case is that the toddy shop is functioning within the prohibited distance from a temple and so much so, licence issued is in violation of Rule 7(2) of the Abkari Sops Disposal Rules, 2002 (hereinafter called “the Rules”). In the first round of litigation this court directed the Commissioner to consider whether petitioner's allegation is true and if so, to recall the licence. However, the Commissioner has thereafter considered the matter and even though he came to the conclusion that the toddy shop is within 338 metres i.e. prohibited distance from the Padayarakam Nagarkavu, he still permitted the licencee to continue the toddy shop W.P.(C) No.6925/2010 2 because according to him, the said Kavu does not answer the description of “temple” as defined under the Abkari Rules. 2. Counsel for the petitioner has relied on Commission Report submitted by Advocate Commissioner appointed by this court wherein he has confirmed the existence of the Kavu and according to him, it is within 267 metres from the toddy shop. Photographs of the Kavu produced in court show that it is a pucca concrete building with a long shed constructed with steel pipes and corrugated sheet roof for the large number of people to stand and offer prayers without being affected by sun and rain. The photograph shows that the Kavu is a typical temple with a tall metal lamp installed in the foreground and a hundi is also installed in the front side of the Kavu for people to make offerings. Even though there is variance in the finding of the Commissioner in Ext.P2 and in the Advocate Commissioner's report about the distance within which the Kavu is located from the toddy shop, we do not think the difference has any significance because even according to the Commissioner's order, the Kavu is located within W.P.(C) No.6925/2010 3 prohibited distance of 400 metres as according to him it is located only 338 metres away from the toddy shop, whereas according to the Advocate Commissioner's report, the distance between the toddy shop and the Kavu is only 267 metres. If the Kavu answers the description of “temple” under the Rules, then certainly the Commissioner's order is liable to be vacated and the licence issued should be cancelled. Rule 7 (2) of the Rules specifically bars granting of licence to toddy shops located within 400 metres of any Educational Institution, Temple, Church, Mosque, Burial ground and Scheduled Caste/Scheduled Tribes Colonies. The only question that calls for our decision is whether the kavu answers the description of "temple" as defined under Rule 2(m) of the Rules which is as follows: "Temple" means a place of public religious worship by Hindus where a deity is installed under a building and includes a mutt also: Provided that any structure on the road side, pavement or in a compound of a private building with or without a deity shall not be considered as a "Temple". The petitioner has relied on the Commissioner's report, photographs W.P.(C) No.6925/2010 4 produced and also Ext.P12 affidavit filed by some devotees, Exts.P13 and P14 pertaining to the festival conducted in the temple. The Commissioner has not considered any of these documents or evidence produced before this court. On the other hand, he has assumed that a Nagarkavu which is the abode of Snake God cannot be a temple at all. In our view, the Commissioner is under a misconception as to what is a temple. Snake Gods are worshiped traditionally for centuries in Kerala and even now Snake Gods are worshiped in Kerala. The difference between a regular temple and the abode of Snake God is that ordinary place of Hindu worship where deities are installed are called temples and place of worship where Snake God is installed is called Kavu. The poojas and rituals before Snake Gods are also little different. However, a Nagarkavu which is the abode of Snake God is also a place of worship of Hindus and is no way different from ordinary temples where deities are installed. Counsel has produced leading Mathruboomi Weekly dated 12the September, 2010 wherein there is a detailed article about all the major Kavus in Kerala. The contention of W.P.(C) No.6925/2010 5 the petitioner is that the article itself illustrates that the abode of Snake Gods are nothing but places of worship and so much so, those Kavus clearly answer the description of temple contained in Rule 2(m) of the Rules. Besides filing an affidavit from various devotees who are said to be offering prayers in the Kavu referred above, counsel for the petitioner has also produced Exts.P13 and P14 leaflets pertaining to the festival namely, Ayilyapooja being held in the Kavu. The photograph itself indicates that quite large number of people assemble for prayer at a time and in order to protect them from sun and heat, a long shed is constructed in front of the building where deity is installed. Further, as already noticed, typical five step metal lamp is installed in front of the Kavu and even a Hundi is installed for people to make offerings. 3. Government Pleader and counsel appearing for the party respondents contended that the Kavu is located in a private property and so much so, it cannot be said to be a place of public worship which alone can be called a "temple" under Rule 2(m) of the Rules. We are unable to accept this because what is relevant is whether the Kavu or W.P.(C) No.6925/2010 6 Temple involved is a place of public worship by Hindus. Ever so many temples in Kerala are located in private properties and several such temples are managed by trusts or even individuals. What is important is not the location or ownership of the temple, but whether the temple is open for worship by public and if so, such place of worship answers the description of temple, no matter it is located in private property. So much so, this argument of the Government Pleader is unacceptable and we reject the same. 4. There is no dispute that the Kavu is a pucca concrete building constructed in the typical form of the Sanctum Sanctorum of a temple and installation of a deity is also not in dispute. In view of our findings above that the Nagarkavu in this case answers the description of temple contained in Rule 2(m), the finding to the contrary by the Commissioner in Ext.P2 is liable to be set aside. Consequently the licence issued to the party respondent is liable to be recalled. However, since the toddy shop was functioning there for a few years and more than half of the licence period is over, we feel cancellation of licence W.P.(C) No.6925/2010 7 for this financial year may not be justified. Accordingly we dispose of the W.P.(C) by declaring that the Nagarkavu referred in this case is a temple and by vacating the finding of the Commissioner in Ext.P2 to the contrary, with direction to him not to issue licence for the toddy shop in the same location from next financial year onwards. C.N.RAMACHANDRAN NAIR Judge K.SURENDRA MOHAN Judge pms