IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 18TH AUGUST 2009 / 27TH SRAVANA 1931 WP(C).No. 16731 of 2009(J) ----------------------------------------- PETITIONER(S): ------------------------ 1. K.R. RAJESHKUMAR, S/O.K.I. RAJAN, KANNANPADAM HOUSE, VELLOOR.P.O, PAMPADY, KOTTAYAM DISTRICT, PIN - 686 501. 2. K.R. ASHOK KUMAR, S/O. M.K. RAJAPPAN, KAROTTUMUNDAMATTOM, VELLOOR.P.O, PAMPADY, KOTTAYAM - 686 501. BY ADV. MR.ANIL K.NARENDRAN RESPONDENT(S): --------------------------- 1. THE DISTRICT COLLECTOR, COLLECTORATE,KOTTAYAM - 686 002. 2. THE DEPUTY COMMISSIIONER OF EXCISE, CIVIL STATION, KOTTAYAM - 686 002. 3. THE ASSISTANT EXCISE COMMISSIONER, CIVIL STATION, KOTTAYAM - 686 002. 4. M.K. DIVAKARAN, S/O. KUNJUKUNJU, MUNDIYAKKAL HOUSE, POTHENPURAM.P.O, PAMPADY, KOTTAYAM DISTRICT - 686 502. 5. SATHEESH KUMAR, S/O. SIVANKUTTY, SREENILAYAM, PULLAPPALLY, CHERPUNKAL.P.O, MEENACHIL, KOTTAYAM DISTRICT - 686 584. R1 TO R3 BY GOVERNMENT PLEADER MR. V. MANU R4 BY ADV. MR.K.REGHU KOTTAPPURAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/08/2009 ALONG WITH WPC NO. 18332 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.16731/2009 J APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF A ROUGH SKETCH OF THE LOCALITY DTD.NIL, PREPARED BY THE PETITIONERS. P2: COPY OF PHOTOGRAPH OF THE BUILDING AND SIGN BOARD OF THE 'ARADHANALAYAM' OF THE PENTECOSTAL MISSION AT 9TH MILE, PAMPADY. P3: COPY OF MASS PETITION DTD. NIL, SUBMITTED BEFORE THE 1ST RESPONDENT. P4: COPY OF TWO PHOTOGRAPHS OF THE TEMPORARY SHED PUT UP ON THE PROPOSED SITE. P5: COPY OF REPRESENTATION DTD. 13/06/2009 SUBMITTED BEFORE THE 2ND RESPONDENT. P6: COPY OF RECEIPT DTD. 15/06/2009 ISSUED AFTER RECEIVING EXHIBIT P5 REPRESENTATION ADDRESSED TO THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).Nos.16731 & 18332 OF 2009 ------------------------------------------- Dated this the 18th day of August, 2009 JUDGMENT 1.The petitioner in the latter among the captioned matters is one of the licensees of a toddy shop. He wanted fresh licence to be issued in relation to a particular building. Objections were raised. That led to an interlocutory order being issued in W.P (C).16731/09 at the instance of persons who are challenging the proposed housing of the toddy shop. When the licensee's matter came up as W.P(C).18332/09, an interlocutory order was issued directing the parties to appear before the Deputy Commissioner of Excise before whom the licensee's application for grant of permit was pending. 2.Considering the objections and taking note of the Distance Rule, the Deputy Commissioner concluded that the shop cannot be licensed in the premises where the licensee would like to have it. That order is under challenge in W.P(C). 18332/09, following the amendment of that writ petition. WPC.16731/09 & 18332/09 Page numbers 3.The ground on which the Deputy Commissioner has rejected the request of the licensee is that there is a structure, a hall, where, according to the Deputy Commissioner, prayers are being held by Pentecost mission and the same amounts to a church as defined in the Disposal Rules. It has accordingly been held that the site in question is within the objectionable zone. 4.Learned counsel for the licensee pointed out that the Deputy Commissioner usurped his jurisdiction in as much as there is absolutely no material on record to conclude that the said hall amounts to a church as defined in the Rules and still further, there was no material either from the Pastor or any person for that matter, evidencing that the said building amounts to a church as defined in the Disposal Rules. That plea is one essentially relevant for consideration in a statutory appeal or revision. I am not impressed by the submission on behalf of the licensee that since the Deputy Commissioner has allegedly traversed into the area which were beyond his jurisdiction, the statutory remedies would no more be available. WPC.16731/09 & 18332/09 Page numbers 5.Having regard to the parameters of jurisdiction of the Commissioner of Excise before whom revision would lie against the order of the Deputy Commissioner and because the Commissioner of Excise could get further materials, if required, to resolve the dispute, the order of the Deputy Commissioner is preserved for being challenged before the Commissioner of Excise and if that is done within a period of 10 days from now, taking into consideration the fact that the writ petitions had been pending, the said revision would be considered on merits and disposed of after hearing the necessary parties, including the petitioner in W.P(C).16731/09. Let an expeditious decision follow, at any rate within one month from now. The Commissioner would ensure that the privilege granted to the petitioner in W.P(C).18332/09 would not be recalled until the decision on the revision is rendered. These writ petition are ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.20/8.