IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 19TH MARCH 2009 / 28TH PHALGUNA 1930 WP(C).No. 27630 of 2008(L) -------------------------------------- PETITIONER(S): ---------------------- PARAMESWARAN, S/O.RAMAN, VETTIYATTIL HOUSE, THEKKUMMURI, DESOM, VARANDARAPPILLY VILLAGE, MUKUNDAPURAM TALUK. BY ADV. MR.M.C.JOHN RESPONDENT(S): ------------------------- 1. THE COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. 2. THE ASSISTANT EXCISE COMMISSIONER, THRISSUR. 3. THE CIRCLE INSPECTOR OF EXCISE, IRINJALAKUDA, THRISSUR DISTRICT. * ADDL. R4 IMPLEADED ADDL. R4: LALU C.K., S/O.KESAVAN, CHERAI HOUSE, NELLAYI-680 305. * IS IMPLEADED AS ADDL. R4, VIDE ORDER DTED 30/01/2009 IN I.A.989/2009. R1 TO R3 BY GOVERNMENT PLEADER SMT.SUDHA DEVI ADDL. R4 BY ADV. MR.C.A.CHACKO THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 27630 of 2008(L) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE RELEVANT PAGES OF THE LICENCE NO.9/08-09 DATED 10/04/2008 ISSUED BY THE 2ND RESPONDENT. EXT.P1(a): COPY OF THE RELEVANT PAGES OF THE LICENCE NO.564/02-03 FOR “NELLAYI” DATED 12/12/2002. EXT.P1(b): COPY OF THE RELEVANT PAGES OF THE LICENCE NO.694/07-08 DATED 11/06/2007 FOR “NELLAYI” SHOP IN GROUP NO.VII ISSUED BY 2ND RESPONDENT. EXT.P1(c): COPY OF THE CERTIFICATE C1-08-09 DATED 20/01/2009 ISSUED BY THE SECRETARY (SPL. GRADE) PARAPPUKKARA GRAMA PANCHAYAT. EXT.P1(d): COPY OF THE CERTIFICATE NO.C1-08-09 DATED 20/01/2009 ISSUED BY THE SECRETARY (SPL. GRADE) PARAPUKKARA GRAMA PANCHAYAT. EXT.P2: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P3: COPY OF THE REPORT NO.IC-14/98 OF THE 3RD RESPONDENT. EXT.P4: COPY OF THE CONSENT LETTER. EXT.P5: COPY OF THE BUILDING PERMIT EXT.P6: COPY OF THE BUILDING TAX RECEIPT. EXT.P6(a): COPY OF THE JUDGMENT DATED 06/06/2008 IN W.P.(C). NO. 16398/2008. EXT.P6(b): COPY OF THE NOTICE NO.R5-3020/08 DATED 05/08/2008 OF THE 2ND RESPONDENT. EXT.P7: COPY OF THE JUDGMENT DATED 19/08/2008 IN W.P.(C). NO. 24948/2008. EXT.P8: COPY OF THE ORDER NO.XA2-10643/2008 DATED 21/08/2008. EXT.P9: COPY OF THE ORDER NO.R5-3020/08 DATED 12/08/2008 SERVED ON 29/08/2008. RESPONDENT'S EXHIBITS: EXT.R4(a): COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DATED 06/06/2008 IN W.P.(C). NO. 16938/08. //TRUE COPY// P.S. TO JUDGE Rs/ V.GIRI, J. ------------------------- W.P.(C)No.27630 of 2008 ------------------------- Dated this the 19th day of March, 2009. JUDGMENT The petitioner was a licensee of Toddy Shop No.89/08-09 (Nellayi Group) of Irinjalakuda Range for the year 2008-09. According to the petitioner, he has been a licensee since 2002. 2. It is common case that the said shop was in a building bearing panchayat assessment No.V/54 (There is a dispute as to whether it is V/54 or V/154. It may not be very material, in the circumstances of the case.) of the Parapookkara Panchayat, owned by one Jigimon. For the year 2001-02, the toddy shop was licensed in the same building on the strength of G.O.(MS)No.70/2000/TD dated 19.04.2000 which permitted shops bid in auction in 2000-01 to be continued in the same premises, wherein it was being conducted during the previous year, notwithstanding the distance rule which prohibited location of toddy shops and W.P.(C)No.27630 of 2008 :: 2 :: liquor shops within 200 meters from Educational Institution or a place of religious worship, SC/ST Colonies and burial ground. The protection so afforded to the existing shops as per the Government Order mentioned above was made statutory as per the proviso to Rule 7(2) of the Kerala Abkari Shops Disposal Rules, 2002, wherein the shops which were located at a place during 2001-02 were permitted to be continued to be located in the same place, notwithstanding the distance rule. It is, therefore, that T.S.No.89/08-09 continued to function in Building No.V/54 (or V/154 as the case may be) of the Parapookkara Panchayat till 2008-09. 3. While so, the building where the toddy shop was functioning was acquired for the National Highway. In that circumstance, the petitioner applied for shifting of the shop to another place about 25 metres away, but comprised in the same survey number and sub-division. The application was processed and by Ext.P3, it was recommended by the Circle Inspector of Excise. The premises, to which the shop was W.P.(C)No.27630 of 2008 :: 3 :: sought to be shifted, was originally an unnumbered building. Later, after obtaining a building permit, a building was constructed and it was numbered and tax was remitted as per Ext.P6. It is to this building that shifting was sought. 4. In the meanwhile, the 4th respondent, a nearby resident filed objection. His objections were directed to be considered as per Ext.P6(a) judgment. A hearing was proposed under Ext.P6(b). The petitioner had approached this court in W.P.(C)No.24948/08 praying for a direction to the Excise Commissioner to take a decision on his application for shifting. Ultimately, the commissioner, by Ext.P8 dismissed the petitioner's application. In the meanwhile, the Assistant Commissioner, pursuant to Ext.P6(a) judgment, passed an order vide Ext.P9, on the representation filed by the 4th respondent noting that the licensee has already been directed to find alternate unobjectionable site. 5. Two reasons are given in Ext.P8 to reject the petitioner's application. Firstly that the building to which the W.P.(C)No.27630 of 2008 :: 4 :: shop was sought to be shifted is an unnumbered one. Secondly, the protection earlier allowed for continuance of toddy shop in the premises that were located during the year 2000-01 was confined to the year 2000-01 and that no such relaxation was given in the subsequent years. 6. A statement has been filed on behalf of the 3rd respondent and a counter affidavit has been filed by the 4th respondent. 7. Insofar as the first objection raised in Ext.P8 that the building to which the shop was sought to be shifted is an unnumbered building is concerned, the objection really does not survive, because a number has been assigned and it is evidenced by Ext.P6. The second objection is that the protection for continuance of toddy shop in the premises where it was located during the year 2000-01 was confined to the year 2000-01 and not for the subsequent years. 8. Firstly the shifting of the shop was sought only because the premises where the shop was located earlier has W.P.(C)No.27630 of 2008 :: 5 :: been acquired for the National Highway. Secondly, the shop to which shifting is sought is a place about just 25 metres away and this has not been refuted in Ext.P8 order passed by the Excise Commissioner. Thirdly, going by the statement filed by the 3rd respondent, the benefit that was granted under the earlier Government Order, G.O.(MS)No.70/2000/TD dated 19.04.2000 in respect of toddy shops licensed during the year 2000-01 from the application of the distance rule, in a different form has been incorporated in the statute as per the proviso to Rule 7(2) of the Rules, 2002 and it is because of this that the toddy shop was continued to be licensed in the same premises during 2008-09. Paragraph 3 of the statement filed on behalf of the 3rd respondent is relevant. Shifting has been necessitated on account of the acquisition of the land for the National Highway and the shifting is sought to be done to another building, within a radius of 50 metres, which condition is considered as relevant, as stated in the earlier Government Order, going by paragraph 2 of the statement of W.P.(C)No.27630 of 2008 :: 6 :: the 3rd respondent. I am, therefore, of the view that the second objection contained in Ext.P8 is also untenable. I also take note of the contention of the petitioner that shifting of the shop to the new premises which is 25 metres away from the earlier premises has not resulted in abridging the distance between the shop and educational institution or a place of religious worship. Further, the actual objection as regards the location of the present premises is not discernible either from Ext.P8 or the statement of the 3rd respondent. 9. Learned counsel for the 4th respondent submitted that the petitioner has no specific case that there is no other unobjectionable site in the locality, to which the shop could be shifted and therefore, the proviso to Rule 7(2) of the Disposal Rules is not applicable to the present case. I am not impressed with this submission. Shifting has been necessitated on account of the acquisition of the land where the shop was being run all these days. Such shifting itself is to another premises within 25 metres of the original site. W.P.(C)No.27630 of 2008 :: 7 :: Authorities have not found the fact that the premises to which the shop is now sought to be shifted is more objectionable than the original site. It is not the case of the 4th respondent that the distance between any one of the institutions mentioned in Rule 7(2) of the Rules and the premises where the toddy shop is being conducted has been further abridged on account of the shifting of the shop. In fact, the precise reason why the site to which the shop was sought to be shifted is objectionable in terms of the Rules is not discernible even from the counter affidavit of the 4th respondent. For all these reasons, I am of the view that Exts.P8 and P9 are unsustainable. Accordingly, the writ petition is allowed. Exts.P8 and P9 are quashed. It is submitted by the counsel for the petitioner that, pursuant to an order passed by this court, the licence has already been issued and the judgment was later recalled on a motion made by the 4th respondent. Be that as it may, as the licence has already W.P.(C)No.27630 of 2008 :: 8 :: been issued in respect of the new premises, that shall be permitted to be operated, consequent upon the declaration made in this judgment. Sd/- (V.GIRI) JUDGE sk/ //true copy//