IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 9TH JUNE 2010 / 19TH JYAISTHA 1932 WP(C).No. 16555 of 2010(T) ---------------------------------------- PETITIONER(S): ------------------------- E.P.SOMAN, S/O. PAZHANI ANDI, IDIYAMPOTTA HOUSE, NENMARA, CHITTOOR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.B.GOPAKUMAR RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY THE COMMISSIONER OF EXCISE, KERALA, THIRUVANANTHAPURAM. 2. DEPUTY COMMISSIONER OF EXCISE, THRISSUR. 3. THE ASSISTANT EXCISE COMMISSIONER, THRISSUR. 4. THE CIRCLE INSPECTOR OF EXCISE, IRINJALAKKUDA. 5. PARAMESWARAN, S/O. RAMAN, VETTIYATTIL, THEKKUMURI, VARANTHARAPPILLY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 6. LALU C.K., S/O. KESAVAN, CHERAI HOUSE, NELLAYI, THRISSUR-680 305. R1 TO R4 BY GOVERNMENT PLEADER SMT. N.SUDHA DEVI R6 BY ADV. SRI.C.A.CHACKO THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/06/2010, THE COURT ON 09/06/2010 DELIVERED THE FOLLOWING: Kss WPC.NO.16555/2010 T APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE LICENCE NO.9/2008-09 ISSUED TO THE 5TH RESPONDENT. P1(A): COPY OF THE ORDER NO.R5.1575/08/A DTD. 11/11/2008 ISSUED BY THE ASST.EXCISE COMMISSIONER, THRISSUR. P2: COPY OF THE JUDGMENT IN WPC.NO.27630 OF 2008(L)DTD. 24/10/2008 IN THE HON'BLE COURT. P2(A): COPY OF THE JUDGMENT IN R.P.NO.12 OF 2009 (L) DTD. 19/01/2009. P2(B): COPY OF THE JUDGMENT IN WPC.NO.27630 OF 2008 (L) DTD. 19/03/2009 IN THE HON'BLE COURT. P3: EXTRACT OF THE LICENCE ISSUED IN FAVOUR OF THE PETITIONER. P3(A): COPY OF THE JUDGMENT IN W.A.NO.8118 OF 2009 (L) DTD. 30/06/2009. P4: COPY OF THE REPRESENTATION SEND BY 6TH RESPONDENT TO 3RD RESPONDENT DTD. 28/07/2009. P4(A): COPY OF THE ORDER G.O.(MS) NO.70/2000/T DTD. 19/04/2000. P4(B): COPY OF THE LETTER NO.R5-1942/09 DTD. 03/08/2009 SEND BY THE OFFICE OF THE DEPUTY EXCISE COMMISSIONER, TRISSUR TO THE 6TH RESPONDENT. P5: COPY OF THE JUDGMENT IN WPC.NO.25785 OF 2009 (P). P6: COPY OF THE ORDER NO.XA2- 12533/2009 DTD. 30/11/2009. P7: COPY OF THE REPRESENTATION DTD. 03/11/2009. P8: COPY OF THE JUDGMENT DTD. 14/01/2010 IN WP(C) NO.36409/2009 OF THE HON'BLE HIGH COURT OF KERALA. P9: COPY OF THE JUDGMENT DTD. 26/01/2010 IN W.A.NO.116/2010 OF THE HON'BLE HIGH COURT OF KERALA. P10: COPY OF THE ORDER G.O.(MS) NO.55/2010/TD DTD. 05/03/2010. Kss ..2/- ..2.... WPC.NO.16555/2010 T P11: COPY OF THE ORDER IN WPC.NO.9416 OF 2010 (B) DTD. 19/03/2010 OF THE HON'BLE HIGH COURT OF KERALA. P12: COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT UNDER REF. NO.R5-1250/2010 DTD. 29/03/2010. P13: COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT UNDER REF.NO. R5-3020/07 DTD. 18/05/2010. RESPONDENT'S EXHIBITS: R6(A): COPY OF THE ORDER DTD. 12/08/2008. R6(B): COPY OF THE ORDER DTD. 21/08/2008. R6(C): COPY OF THE 6TH RESPONDENT'S REPRESENTATION. R6(D): COPY OF THE REPRESENTATION BY THE NEIGHBOUR BEFORE THE 2ND RESPONDENT. R6(E): COPY OF THE RECEIPT ISSUED BY THE OFFICE OF THE 2ND RESPONDENT ACKNOWLEDGING THE RECEIPT OF R6(C) AND R6(D). R6(F): COPY OF THE ACKNOWLEDGMENT CARD ACKNOWLEDGING RECEIPT OF EXT.R6(C) AND R6(D). /TRUE COPY/ P.S.TO JUDGE Kss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.16555 of 2010-T - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of June, 2010. JUDGMENT The petitioner who is granted the privilege of vending toddy in respect of T.S. No.89 of Nellayi (Group No.VII) of Irinjalakuda Range, is aggrieved by Ext.P13 order rejecting his application for licence on the ground that the site is an objectionable one under Rule 7(2) of Abkari Shops Disposal Rules, 2002. He is further directed to find out another unobjectionable site to locate the toddy shop. 2. Heard learned counsel for the petitioner, learned counsel for the 6th respondent and learned Govt. Pleader. 3. The history of the case is as follows: The 5th respondent herein was the licensee of Toddy Shop No.89 during the previous years, upto 1.7.2009. The shop was functioning in building No.5/154 belonging to one Jiji Mon. The premises was acquired for widening the National Highway, requiring a shifting of the same to another building, viz. building No.IX/57- A belonging to one Venugopal, situated on the eastern side of the National Highway 47. This was permitted as per Exts.P1 and P1(a) orders passed by the Excise authorities. It is pointed out by the petitioner that the 5th wpc 16555/2010 2 respondent was the licensee of the very same shop since the year 2002 till the year 2009. 4. The 6th respondent who is a nearby resident of the building, objected to the shifting. The matter was earlier considered by this Court in W.P.(C) No.27630/2008, wherein the authorities were directed to pass fresh orders permitting the fifth respondent who was the petitioner therein, to shift the toddy shop to the building for which he submitted an application for licence. On a review petition filed by the 6th respondent herein, the judgment was reviewed, as he was not heard, by Ext.P2(a) order and later the writ petition was allowed after re-hearing, by Ext.P2(b) judgment. This Court took the view that the proviso to Rule 7(2) of the Disposal Rules entitles the petitioner therein to locate the shop in the building proposed. Accordingly, licence was issued. After expiry of the abkari year, the Writ Appeal filed by the 6th respondent herein came up for hearing on 30.6.2009 and Ext.P3(a) is the copy of the judgment. The petitioner had obtained licence for the year 2009-2010, but he was not a party to the Writ Appeal. The 6th respondent who was the appellant in the Writ Appeal, was allowed to raise his objections in the matter, if the petitioner herein is proposing to locate the toddy shop in the very same premises. Initially his objection was wpc 16555/2010 3 rejected relying upon Ext.P4(a) Government Order by Ext.P4(b) order. Later, this Court allowed him to move the Commissioner of Excise, as per Ext.P5 judgment and by Ext.P6 the Commissioner sustained the objections and directed the petitioner to relocate the shop. The order was passed after observing that the petitioner herein agreed for a shifting, during the hearing of the matter, which was denied by him by filing Ext.P7. Even though a challenge was made by the petitioner before this Court in W.P.(C) No.36409/2009, it was repelled by Ext.P8 judgment. The matter was taken up in Writ Appeal by him and the judgment of the Division Bench is produced as Ext.P9. He was allowed to conduct the shop till the end of the abkari year, leaving open the remedy of the 6th respondent to raise objections for the year 2010-2011. Other directions were also issued to the petitioner to ward off the complaint regarding nuisance, etc. Ext.P10 is the copy of the Abkari Policy for the year 2010-2011. By Ext.P13 order, it is found that the proposed site is situated 120 meters away from the Pisharikkal Sree Durga Bhagavati Temple and 275 meters away from the St. Mary's Church. It is further held that the same is not entitled for the benefit of the second proviso to Rule 7(2) of the Rules. 5. Learned counsel for the petitioner pointed out that the issue wpc 16555/2010 4 whether the shop is entitled for the benefit of the second proviso to Rule 7 (2) of the Rules was elaborately considered by this Court in the judgment in the earlier writ petition filed by the 5th respondent, Ext.P2(b). It is therefore submitted that the finding in the present order which are contrary to the judgment, cannot be supported at all. The shop was one licenced from 2001-2002 onwards and therefore it was entitled for the benefit of G.O. (MS) No.70/2000/T dated 19.4.2000 and the scheme of which was introduced in the proviso to Rule 7(2) of the Rules. It is submitted that the petitioner never admitted before the Excise Commissioner as recorded in Ext.P6 order, that the location of the shop in the present building causes nuisance to the 6th respondent and others and that he is willing to shift the same to another place. It is pointed out that Ext.P8 judgment, upholding Ext.P6 order, was interfered with by the Division Bench in Ext.P9 judgment, in the light of the denial by the petitioner herein and further allowing him to conduct the business in the shop. With regard to the allegation of causing nuisance by the flow of seepage and wastage to the property of the sixth respondent, directions were issued in Ext.P9 judgment itself and he has complied with all those directions. It is submitted that the issue whether the petitioner was entitled for the benefit of wpc 16555/2010 5 the second proviso to Rule 7(2) of the Rules, was not a matter which was raised before the Division Bench while rendering Ext.P9 judgment and the specified objection, if any, with regard to the alleged nuisance alone was raised therein. It is therefore submitted that the decision taken in the order issued by the Deputy Commissioner as per Ext.P13, is per se illegal. It is further pointed out that going by sub para 1 of para 4 Ext.P10, it is clearly mentioned that toddy shops functioning during 2009-2010 will be allowed to function in 2010-2011 also. It is further pointed out that para 5 of Ext.P10 also supports the location of the shop in the very same building as Ext.P10 confers a clear benefit on the licensees to locate the shop in the very same premises. It is pointed out that the same was not at all considered by the Deputy Commissioner while passing Ext.P13 order. 6. Learned Govt. Pleader and learned counsel appearing for the 6th respondent opposed the contentions of the learned counsel for the petitioner by contending, inter-alia, that the building wherein the toddy shop was functioning prior to the shifting to the present building of which the 5th respondent was the licensee, was acquired by the National Highway. The present building is a new one and therefore the benefit of the proviso to Rule 7(2) will not be applicable as far as the petitioner is concerned. wpc 16555/2010 6 Learned counsel for the 6th respondent further submitted that the petitioner had admitted before the Excise Commissioner that the shop is causing nuisance and therefore he will shift it and he cannot go back on the same in this proceedings. 7. Rule 7 of the Rules allows licensing of toddy shops subject to the general conditions provided therein. Sub-rule (2) provides that no toddy shop shall be located within 400 meters from an Educational Institution, Temple, Church, Mosque, Burial ground and Scheduled Castes/Scheduled Tribes colonies. As far as Foreign Liquor shops are concerned, the distance is 200 meters. The second proviso therein reads thus: “Provided further that the restrictions in distance from an Educational Institution, Temple, Church, Burial ground and Schedule Caste/Schedule Tribes colonies for locating toddy shops shall not apply to those shops which remained unlicensed for want of any unobjectionable site, but where to be located at the same place where they were licensed for the year 2001-2002.” 8. Herein, going by the facts pleaded in the writ petition, it can be seen that the 5th respondent was the licensee from the year 2002 onwards. The facts narrated in Ext.P2(b) judgment shows that the said shop was licensed in the same building for the year 2001-02 on the strength of the wpc 16555/2010 7 Govt. Order dated 19.4.2000 which permits continuance of the shops bid in auction in 2000-01 in the same premises, wherein it was being conducted during the previous year, notwithstanding the distance rule. The second proviso to Rule 7(2) gives the statutory recognition of the right conferred under the above Govt. Order. Therefore, notwithstanding the distance rule, the shops which were being located during the year 2001-2002 were permitted to be continued to be located in the same premises. It is further clear from the above judgment that the present building is only 25 meters away, but comprised in the same survey number and sub division. It was held that the same being also within the objectionable area, the benefit of the second proviso will be available and the writ petition was allowed in favour of the fifth respondent. 9. Learned counsel for the petitioner pointed out that even though in Ext.P3(a) judgment of the Division Bench, the 6th respondent was allowed to raise further objections, the directions therein were obtained without making the petitioner herein a party and therefore those observations cannot bind the petitioner. A reading of the judgment shows that the Writ Appeal was disposed of after noticing that the 5th respondent is not longer the licensee for the year 2009-2010. It was also observed that in view of wpc 16555/2010 8 the subsequent developments, it is unnecessary to consider the validity of the judgment under appeal. Finally, it was clarified that for raising objections, the 6th respondent will not be bound by the findings in the judgment under appeal. How far this will enable the 6th respondent to pursue his objections against the petitioner, is the moot question. 10. But, the 6th respondent now banks upon the admission said to have been made by the petitioner before the Excise Commissioner, as recorded in Ext.P6 order that the functioning of the toddy shop in the existing premises is causing much nuisance to the 6th respondent and that he is willing to shift the toddy shop from the existing premises. This Court did not interfere with the same in Ext.P8 judgment. 11. In appeal from Ext.P8 judgment, wherein the petitioner is the appellant, the Division Bench held thus: “Since the appellant has denied the statement of admission recorded by the Commissioner and since the photographs show that the toddy shop is a newly constructed building, we feel appellant can be permitted to do business for the remaining part of the financial year. However we direct the appellant to see that seapage and wastage do not go to the property of the sixth respondent and ventilation of toddy shop should not be kept open to the house side of the sixth respondent. It would be open to the appellant to open a ventilation wpc 16555/2010 9 for the toddy shop in the entry side of the toddy shop that is on the western side by closing down the ventilation on the house side of sixth respondent. There will be direction to the Excise authorities including the Commissioner to consider whether licence should be renewed in the same premises for the financial year 2010-11 after taking into account the objections raised by the sixth respondent and others. If there is objection from neighbours it would be open to the respondents not to renew the licence except after the appellant or the applicant for licence locates suitable place in the area.” 12. It is the case of the 6th respondent that since the Division Bench allowed him to raise fresh objections this year and as he has raised such objections, the Excise authorities cannot issue a licence in the light of the operative portion of the judgment. It cannot be said that merely because an objection is raised by the 6th respondent, the Excise authorities are denied the power to give the licence. The objections will have to be considered on its merits and in the light of the relevant rules. Since the Division Bench allowed a fresh opportunity to the 6th respondent to raise his objections, if the petitioner wants to locate the shop in the very same building wherein it was located in the previous year, he cannot bank upon the order Ext.P6 as one which is conclusive between the parties. Otherwise, if the same was binding and conclusive on the parties, the Division Bench need not have wpc 16555/2010 10 granted a fresh opportunity to the 6th respondent to raise his objections for the year 2010-2011. Directions were issued to the petitioner to take certain measures to avoid nuisance to the 6th respondent. Therefore, if understood in that manner, it cannot be said that the authorities were deprived of any power to renew the licence in the light of Ext.P6 order passed by the Commissioner. Therefore, all aspects are open for consideration. 13. It cannot be disputed that the second proviso to Rule 7(2) gives a protection to locate the shop even in spite of the distance rule, in the very same building, as it was entitled for the benefit of the earlier Govt. Order dated 19.4.2000. The view taken in Ext.P13 is that, the present building wherein the shop is functioning, was licensed without availing the benefit given in the second proviso to Rule 7(2). This reasoning is patently wrong. Copy of the Govt. Order produced as Ext.P4(a) gives the meaning of “same location”. If the building is within a radius of 50 meters from the earlier location of the shop, the same is sufficient to get the benefit. The present building is only 25 meters away from the earlier building which was acquired for widening the National Highway, on its eastern side. If it was within the prohibited distance, and not eligible for the benefit of the second proviso, the authorities would not have granted licence for that year. This wpc 16555/2010 11 Court also found in Ext.P2(b) judgment that since the building is only 25 meters away from the earlier building wherein the toddy shop was functioning from 2001 onwards availing the benefit of the second proviso to Rule 7(2), the said benefit cannot be denied to the present building also. It is clear that the present building is one within the prohibited distance. By shifting it from the earlier building, it was not taken out from the prohibited distance provided under Rule 7(2). The location of the same within the said premises, therefore, is clearly in view of the benefit of the second proviso to which the petitioner is entitled. The findings therefore, rendered in Ext.P13 that the same is an objectionable site under Rule 7(2) and therefore it cannot be licensed, cannot be supported. There is no valid reason to deny the benefit given to the 5th respondent for the earlier years, to the petitioner herein. 14. Even though learned counsel for the 6th respondent submitted that the admission made by the 6th respondent is also an aspect on which Ext.P13 was passed, obviously the order does not rest upon the same. The Division Bench in Ext.P9 judgment, had allowed the petitioner to continue the business after observing that the petitioner has denied the statement of admission recorded by the Commissioner. He was directed to see that wpc 16555/2010 12 seepage and wastage do not go to the property of the 6th respondent and ventilation of toddy shop should not be kept open to the house side of the 6th respondent. These directions will govern the matter for this year also to ward off any allegation of nuisance by the 6th respondent. The objection raised by the 6th respondent this year has been produced as Ext.R6(c). Therein it is mentioned that the functioning of the shop affects the privacy and peaceful living of his family. No other specific allegations of nuisance have been mentioned in Ext.R6(c). Hence, if the petitioner is entitled for the benefit of the second proviso to Rule 7(2), the right to conduct the shop in the same building cannot be denied to him. 15. The Abkari Policy for this year, as evidenced by Ext.P10 provides that toddy shops functioned during 2009-2010 will be allowed to function in 2010-2011 also. Learned Govt. Pleader submitted that the petitioner is not entitled for the benefit of the said para, as he is not entitled to get a licence. Obviously, the idea behind the said para is clear, in that the toddy shops functioned during 2009-2010 will be allowed to function 2010-2011 also. This also will help the case of the petitioner. 16. Learned counsel for the 6th respondent then sought for an opportunity for the 6th respondent to raise fresh objections in the matter, if wpc 16555/2010 13 this Court finds that the reasons stated in Ext.P13 cannot be supported. 17. The writ petition is therefore allowed. Ext.P13 is quashed. There will be a direction to respondents 2 to 4 to issue licence to the petitioner to conduct Toddy Shop No.89 of Irinjalakuda Range, as expeditiously as possible, at any rate, within two weeks from the date of receipt of a copy of this judgment. This will not stand in the way of the right of the 6th respondent to move the authorities, if any specific items of nuisance are caused by the conduct of the shop after it starts functioning. No costs. (T.R. Ramachandran Nair, Judge.) kav/