IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 8TH JUNE 2011 / 18TH JYAISHTA 1933 WP(C).No. 13089 of 2011(I) -------------------------------------- PETITIONERS: --------------------- 1. VYAJAMADYA VIRUDDHA SAMITHI,WARD NO.6, ROOM NO.236-C,BISON VALLEY GRAMA PANCHAYAT,BISON VALLEY VILLAGE,IDUKKI DIST.,REP.,BY SECRETARY,BIJU JOSEPH, AGED 35 YEARS,S/O.T.U.JOSEPH,RESIDING AT THEKKUMKATTIL HOUSE,BISON VALLEY VILLAGE,IDUKKI. 2. M.R.PRAKASH,S/O.RAVINDRAN,GRAMA PANCHAYATH MEMBER,WARD NO.5,BISON VALLEY PANCHAYAT, BISON VALLEY.P.O,RESIDING AT MADATHANITHARA VEEDU, BISON VALLEY PANCHAYATH,IDUKKI DISTRICT. BY ADVS. SRI.K.A.ABDUL SALAM, SRI.ANIYANKUNJU VARGHESE, SRI.M.J.WILFRED DAS. RESPONDENTS: ------------------------ 1. STATE OF KERALA,REP.,BY SECRETARY, DEPARTMENT OF EXCISE,GOVERNMENT OF KERALA, SECRETARIAT,TRIVANDRUM-695 001. 2. THE COMMISSIONER OF EXCISE,KERALA STATE, EXCISE DEPOT,TRIVANDRUM-695 001. 3. THE DY.COMMISSIONER OF EXCISE, EXCISE DEPT.,IDUKKI DIST-685 612. 4. KERALA STATE BEVARAGES CORPORATION LTD., TRIVANDRUM,REP.,BY SECRETARY,KSBC,TRIVANDRUM, PIN-695 001. 5. MANAGING DIRECTOR,KERALA STATE BEVARAGES CORPORATION LTD,TRIVANDRUM-695 001. W.P.(C). NO.13089/2011-I: 6. THE MANAGER,KERALA STATE BEVERAGES CORPORATION LTD,OLAMATTOM,THODUPUZHA, IDUKKI DISTRICT-685 584. 7. SHOP INCHARGE,KERALA STATE BEVARAGES CORPORATION LTD.,FL-I 06020,BISON VALLEY, IDUKKI DISTRICT-685 570. 8. CHINNAKKANAL GRAMA PANCHAYATH, CHINNAKKANAL,IDUKKI DISTRICT,REP., BY SECRETARY, PIN-685 602. 9. BISON VALLEY GRAMA PANCHAYATH,IDUKKI DIST.,REP., BY ITS SECRETARY,BISON VALLEY VILLAGE, BISON VALLEY,IDUKKI DISTRICT-685 570. 10. K.K.JAYACHANDRAN,MLA,UDUMBANCHOLA, IDUKKI DISTRICT-685 554. 11. REJY JOY,RESIDING OPPOSITE TO THE VILLAGE OFFICE,CHINNAKKANAL,IDUKKI DISTRICT, PIN-685 602. R1 TO R3 BY GOVT. PLEADER SRI. A.J. VARGHESE, R4 TO R7 BY ADV. SRI.ELVIN PETER P.J, S.C. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/06/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.13089/2011-I: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER G.O.(RT).NO.742/2009/TD. DTD. 19/08/09 ISSUED BY THE R.1. EXT.P.2: COPY OF THE GAZETTE NOTIFICATION DTD. 04/02/2010 AMENDING THE KERALA GAZETTE NOTIFICATION EXTRAORDINARY NO.617 DTD. 27/03/08 BY SUBSTITUTING CHINNAKKANAL FOR BISON VALLEY. EXT.P.3: COPY OF THE LETTER DTD 01/04/11 ISSUED BY THE R.7. EXT.P4:COPY OF THE TELEGRAM DT. 06/05/2011 ADDRESSED TO RESPONDENTS 1 TO 7. EXT.P.5: COPY OF THE REGD. LETTER DTD. 06/05/2011 ADDRESSED TO RESPONDENTS 1 TO 7. EXT.P.6: COPY OF THE POSTAL REGISTRATION RECEIPTS DT. 06/05/2011. EXT.P.7: COPY OF THE TELEGRAM DT. 10/05/2011. EXT.P.8: COPY OF THE REGD. LETTER DATED 10/05/2011. EXT.P.9: COPY OF THE REGISTRATION RECEIPTS DTD 10/05/2011. EXT.P.10 SERIES: COPIES OF THE SALE BILLS DTD. 12/05/2011. EXT.P.11: COPY OF THE NEWS REPORT APPEARED IN MALAYALA MANORAMA DAILY DTD. 12/05/2011. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. C.T.RAVIKUMAR, J. ---------------------------- W.P.(C)No.13089 of 2011 ---------------------------- Dated 8th June, 2011 JUDGMENT Essentially, the grievance highlighted in this writ petition is against the decision of the respondents to shift an Indian Made Foreign Liquor retail outlet. This writ petition has been filed challenging Exts.P1, P2 and P3. The further prayer of the petitioners is to issue a writ of mandamus commanding respondents 1 to 7 to continue sale of Indian Made Foreign Liquor through the Bison Valley shop FL1-06020. The aforesaid orders were impugned on the ground that the first respondent got no authority under section 7(2) of the Kerala Abkari Shops Disposal Rules, 2002 (for short `the Rules') to issue Ext.P1 order without previous sanction from the third respondent. As per Ext.P1, the first respondent took a decision to shift the aforesaid Indian Made Foreign Liquor retail outlet at Bison Valley Panchayat to Chinnakkanal Panchayat in Idukki District. Ext.P2 is the corresponding notification dated 4.2.2010 amending the earlier notification dated 27.3.2008. As already noticed hereinbefore, the contention of the petitioners is that the first respondent got no authority under section 7(2) of the Rules to issue Ext.P1 that too, without the previous sanction from the third respondent. The learned Government Pleader made available the records which would invariably reveal WP(C).No.13089/2011 2 that such a decision was taken by the first respondent with previous sanction from the third respondent. The file would reveal that the third respondent has given such a sanction as per Order No.ID2-1753/2011 dated 4.5.2011. Therefore, the contention of the petitioners that it was done without previous sanction of the third respondent is factually incorrect. Rule 7(2) of the Rules reads thus:- “7.(2) 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:” A perusal of the said provision would reveal that it only enjoins that no toddy or FL-1 shop notified in the Gazette under Rule 4 shall be located outside the notified limits, but with the previous sanction of the Assistant Commissioner of Excise. The order dated 4.5.2011 would reveal that previous sanction was obtained prior to the publication of Ext.P2 notification. As per Ext.P2, the location Bison Valley Panchayat is WP(C).No.13089/2011 3 substituted with Chinnakkanal Panchayat. In other words, the original notification was amended and Ext.P2 is the amended notification. As already noticed, prior to the issuance of Ext.P2 notification previous sanction as contemplated under the provisions was obtained from the third respondent. In the said circumstances, there is no basis for the contention of the petitioners that the decision in Exts.P1 and P2 are taken without adhering to the relevant provisions. In view of the said position obtained in this case, I am of the view that this writ petition is liable to be dismissed and accordingly, it is dismissed. Sd/- C.T.RAVIKUMAR Judge TKS