IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 19TH FEBRUARY 2008 / 30TH MAGHA 1929 WP(C).No. 34249 of 2007(B) -------------------------- PETITIONER: ------------ UDAYAMMA MANOHARAN, W/O LATE K.K.MANOHARAN, KOCHUKAYALCHIRA, PONGA, KAINAKARI, KUTTANAD, ALAPPUZHA DISTRICT. (LICENSEE OF GROUP NO.VII OF KUTTANAD EXCISE RANGE) BY ADV. SRI.N.RAGHURAJ SMT.K.AMMINIKUTTY RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF TAXES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF EXCISE, EXCISE COMMISSIONERATE, THIRUVANANTHAPURAM. 3. THE ASSISTANT EXCISE COMMISSIONER, ALAPPUZHA. 4. THE CIRCLE INSPECTOR OF EXCISE, KUTTANAD EXCISE RANGE, ALAPPUZHA. BY SR.GOVT. PLEADER SMT.ANU SIVARAMAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.34249 OF 2007 ------------------------------------------- Dated this the 19th day of February, 2008 JUDGMENT The effect of the second proviso to Rule 7 (2) of the Kerala Abkari Shops Disposal Rules, 2002, hereinafter, 'the Rules', as substituted with effect from 9.7.2004 as per SRO.No.715/04, falls for consideration in this case. 2. Petitioner is the transferee of a licence that stood in the name of her late husband. Relying on the second proviso to Rule 7 (2) of the Rules, she insisted that the shop could be located in a site, for which, a shop was licenced in the previous years, availing the exemption granted by the Government by notifications/ Government Orders to the then existing licensees. Government rejected that, stating that the said provision does not apply, because, there was no shop in the site in question during the immediately preceding abkari year. WPC.34249/07 Page numbers 3. An examination of the amendments made to the Rules from 2002 shows that the second proviso to Rule 7 (2), essentially granting exemption from the distance rule prescribed in the first limb of that Rule, was substituted from year to year by insisting that such exemption would be available only if a shop was licenced for the immediately preceding abkari year in the site in question. 4. The second proviso, as it now stands, reads as follows: “Provided further that the restrictions regarding distance from an educational institution, temple, church, mosque, burial ground and Scheduled Caste/Scheduled Tribes Colonies for locating toddy shops shall not apply to those shops which remained unlicenced for want of unobjectionable site and which are for that reason sought to be located at the same place where they were licenced in previous years availing of the exemptions given to them by notifications/Government Orders in this regard”. (emphasis supplied) WPC.34249/07 Page numbers The aforequoted second proviso was brought in by substituting the earlier one, which read as following: “Provided further that the restrictions in distance from education institution, temple, church, mosque, burial ground and Scheduled Caste/Scheduled Tribes Colonies for locating toddy shops shall not apply to those shops which remained unlicenced for want of any unobjectionable site, but were to be located at the same place where they were licenced for the year 2001-2002.” 5. During the years prior to the amendment of 2004, exemption was based on the fact, whether a shop was licenced from the objectionable site in question. But, during the abkari year that immediately preceded the amendment of 2004, the policy did not enable individual citizens or groups of citizens to bid in auction and the field of abkari shops were exclusively made available to the co-operative sector. It is obviously, therefore, that by crafting the Rules by the amendment in tune with the policy for the later abkari year, the second proviso to WPC.34249/07 Page numbers Rule 7 (2) of the Rules has been made to provide the benefit of such exemption being available to shops which were licenced during the previous years, availing exemptions. The Government have, in their wisdom, chosen to have the second proviso as it now stands, thereby extending the benefit of that exemption to be dependent of the fact that a shop was licenced in the previous years. Hence, notwithstanding that the shop in question was not licenced during the immediately preceding abkari year, a shop functioning with the benefit of exemption on the basis of prior notifications would fall within the class of shops, for which, exemption is extended by the Government as per the second proviso to Rule 7 (2) as it now stands. It is so declared. In the result, the writ petition is allowed as prayed for. No costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge kkb.