IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 13TH SEPTEMBER 2010 / 22ND BHADRA 1932 WP(C).No. 22903 of 2010(K) -------------------------- PETITIONER: ------------------ PRASANTH BABU.M., S/O.KUNCHIKANNAN, 'ANUPAMA', P.O.THANA, KANNUR - 670 012. BY ADV. SRI.KALEESWARAM RAJ RESPONDENTS: ----------------------- 1. KANNUR KALLUCHETHU VYAVASAYA THOZHILALI SAHAKARANA SANGOM, REPRESENTED BY THE SECRETARY, KANNUR KALLUCHETHU VYAVASAYA THOZHILALI SAHAKARANA SANGOM, KANNUR. 2. DISTRICT COLLECTOR, KANNUR. 3. EXCISE DEPUTY COMMISSIONER, KANNUR. 4. DEPUTY EXCISE COMMISSIONER, KANNUR. 5. SUPERINTENDENT OF POLICE, KANNUR. 6. CIRCLE INSPECTOR OF POLICE, KANNUR. 7. STATION HOUSE OFFICER, KANNUR. R1 BY ADV. SRI.M.G.KARTHIKEYAN R2 BY GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/09/2010 ALONG WITH W.A NO.1522/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: vk WP(C).No. 22903 of 2010(K) APPENDIX PETITIONER'S EXHIBITS EXHIBIT. P1. COPY OF THE PHOTOS SHOWING THE VARIOUS MOMENTS IN THE AGITATION. “ P2. COPY OF THE NEWS REPORTS. “ P3. COPY OF THE MINUTES OF THE MEETING “ P4. COPY OF THE MINUTES SIGNED COPY. “ P5. COPY OF THE SKETCH “ P6. COPY OF THE ORDER DATED 17.2.2010 RESPONDENTS EXHIBIT. EXT.R1(A) :COPY OF THE DETAILS OF THE ABKARI CASES REGISTERED BY THE EXCISE DEPARTMENT FROM THEKKI BAZAR AREA FROM 2006 ONWARDS. P.S. TO JUDGE / TRUE COPY / VK `C R' C.N.RAMACHANDRAN NAIR & K.SURENDRA MOHAN, JJ. ------------------------------------------- W.P.(C) No.22903 of 2010 & W.A.No.1522 of 2010 ------------------------------------------- Dated this the 13th September, 2010 JUDGMENT Ramachandran Nair, J. The petitioner, a Municipal Councilor representing the local public has filed this writ petition for a direction to the respondents to shift Toddy Shop No.3 located at Thekky Bazar in Kannur Town to another place. 2. We have heard the counsel appearing for the petitioner, the counsel appearing for the first respondent and the Government Pleader appearing for the remaining respondents. The above mentioned toddy shop was shifted to the objectionable site in the busy town area under Ext.P6 order issued by the Commissioner of Excise on 17.2.2010. However, ever since the toddy shop was shifted to the densely populated area in the town, the people including school children and ladies started agitation against the continuance of the toddy shop. The wpc No.22903/2010 & 1522/2010 2 petitioner has produced large number of photographs and reports published in the news papers about the agitation taken up by the local people for closure of the toddy shop. Ultimately, the representatives of the political leaders including the local M.P. constituted a Sub Committee, which negotiated with the first respondent for shifting and a decision was taken to shift the toddy shop to a suitable place. The minutes of the committee is produced as Ext.P3 in the writ petition. It is seen from Ext.P3 that the decision was to stop retail sale in the toddy shop thereby much of the nuisance is avoided in as much as the customers discontinued visiting the toddy shop. However, it is stated in Ext.P3 that until a new suitable building is located, the workers of the first respondent can bring toddy to the toddy shop, measure the same and distribute it to other toddy shops for sale. It is specifically stated that this work also will be done between 10 a.m. and 11.30 a.m. and outside this time, the toddy shop will remain closed. The understanding in the committee meeting is that sale under no circumstance will take place in the toddy shop. The petitioner's case is that on account of the wpc No.22903/2010 & 1522/2010 3 continuation of the toddy shop, nuisance still continues though in a reduced form and therefore respondents should be directed to shift the toddy shop immediately. 3. The counsel for the first respondent contended that all efforts are made to locate alternate building for shifting the facility and so far they have not been successfully in getting a building. First respondent's counsel also submitted that the committee members also had undertaken to co-operate with the first respondent in locating an alternate building for the toddy shop. The counsel further submitted that the toddy is locally generated in the area and as many as 30 toddy tappers are bringing toddy everyday to the toddy shop. Therefore, according to him, the business of production and distribution of toddy cannot be discontinued and if done, the same will cause loss of employment for large number of persons. 4. It is also contended by the first respondent that the toddy shop is not located in any objectionable area and by virtue of the second proviso to Rule 7(2) of the Kerala Abkari Shops Disposal Rules, 2002, the first respondent wpc No.22903/2010 & 1522/2010 4 is entitle to continue the toddy shop in the same location. Rule 7(2) of the Rules is as follows: “No Toddy or Foreign Liquor-1 shop notified in the Gazette under Rule 4 shall be located outside the notified limits, but with the previous sanction of the Assistant Excise Commissioner, it may be removed from one place to another within such limits. However, no such shop shall be located in or removed to a place within an area declared as a project area. No toddy shops shall be located within 400 metres and no Foreign Liquor-1 shops shall be located within 200 metres from an Educational Institution, Temple, Church, Mosque, Burial Ground and Scheduled Caste/Scheduled Tribes Colonies. In calculating distance the basis will be the shortest pathway/lane/street/road generally used by the public and the same shall be measured from gate to gate: Provided that if any Educational Institution, Temple, Church, Mosque, Burial Ground or Scheduled Caste/Scheduled Tribe Colonies come into existence subsequent to the grant of licence, it shall not disentitle such shops for continuance. Provided further that the restrictions in distance from an Educational Institution, Temple, Church, Mosque, Burial Ground and Scheduled 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 where licenced for the wpc No.22903/2010 & 1522/2010 5 year 2001-2002.” 5. What is clear from the above is that toddy shop should not be located within 400 metres and foreign liquor shops within 200 metres from educational institution, temple, church, mosque, burial ground and scheduled caste & scheduled tribe colonies. Strangely, there is no objection under the rules in conducting toddy shops in thickly populated areas. However, the above Rule protects the members of the scheduled caste and scheduled tribe from the nuisance from the toddy shops. Similarly, burial grounds where people go only for burial of dead bodies are provided peaceful environment by avoiding toddy shops near it. There cannot be any controversy that people cannot live in peace near any toddy shop because of the nuisance mainly the sound and smell emanating from it. The adverse effect and nuisance on account of the toddy shop involved in this case is reflected in the continuous strike and agitation by the local people including ladies and school children. 6. We are of the view that no toddy shop should be permitted in busy residential areas, because people are wpc No.22903/2010 & 1522/2010 6 entitled to live in peace and toddy business stands in conflict with it. Only two days back, the State suffered a liquor tragedy involving the death of around 30 people and dead bodies were found lying around the toddy shop in Malappuram. We, therefore feel that the Rule needs amendment to liberate the people from the nuisance of the toddy shop near their houses. If at all Government is keen to continue toddy shops as a necessary institution, they should construct and provide building in remote places away from residential areas. It is clear from the admission of first respondent that nobody is willing to give on rent building to run toddy shop. Further most of the local residents do not want the toddy shop and the same is clear from their agitation and resistance. considering public sentiments, it is for the Government to consider whether toddy shops are required everywhere or whether it could be prohibited atleast in residential areas. In this case, we do not think any specific direction is called for, because the first respondent is bound to honour the commitment given in Ext.P3. The writ petition is accordingly disposed of by directing all the respondents to wpc No.22903/2010 & 1522/2010 7 ensure that the toddy shop remains opened only one and half hours i.e. from 10 a.m. to 11.30 a.m. and for the remaining period it remains closed. It is specifically made clear that no retail sale should be made or any customer is permitted to enter the toddy shop at any time. If there is any violation, it is for the petitioner to approach the local excise authorities or the police authorities and there will be a direction to such authority to promptly close down the toddy shop, if violation is committed. If the first respondent is not able to locate a building in a suitable and unobjectionable area within a reasonable time, the petitioner can approach this Court again for ordering closure of the toddy shop because the first respondent cannot be permitted to run the toddy shop to the discomfort of local residents merely because they are not able to locate a building at alternate place. C.N.RAMACHANDRAN NAIR, JUDGE K.SURENDRA MOHAN JUDGE css/