IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 WA.No. 1965 of 2008() --------------------- AGAINST THE JUDGEMENT IN WPC.16675/2008 Dated 20/08/2008 .................... APPELLANT(S): 4TH RESPONDENT IN WPC 16675/2008 ---------------------------------------------- SHAILENDRAN, S/O. KUNJAPPI, SECRETARY, ANJLIKKADU SOUTH SCHEDULED CASTE COLONY ASSOCIATION, AROOR, ALAPPUZHA DIST. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.C.S.MANILAL RESPONDENT(S): PETITIONERS & RESPONDENTS ---------------------------------------- 1. SARATHCHANDRAN, SATHYALATHIL, VARANAD P.O., CHERTHALA, ALAPPUZHA DISTRICT. 2. HARILAL KRISHNAN, THAYYIL, KANDASSERIL, ARTHUNKKAL P.O., CHERTHALA, ALAPPUZHA DIST. 3. GEORGE C.VARGHESE, CHENNOTH , MARY VILLA, KOKKOTHAMANGALAM, CHERTHALA, ALAPPUZHA DIST. 4. R.SHIBU, CHELLIKANDATHIL, MUHAMMA P.O., CHERTHALA, ALAPPUZHA DISTRICT. 5. KARUNAKARAN, UNNI NIVAS, VARANAD P.O., CHERTHALA, ALAPPUZHA DISTRICT. 6. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF TAXES, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM. 7. THE COMMISSIONER OF EXCISE. EXCISE COMMISSIONERATE, THIRUVANANTHAPURAM. 8. THE ASSISTANT EXCISE COMMISSIONER, ALAPPUZHA. ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R1-5 SRI.N.RAGHURAJ FOR R1-5 R6 TO 8 BY GOVT. PLEADER SMT. R. BINDU THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 1965 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of March, 2009 JUDGMENT Balakrishnan Nair, J. The 4th respondent in the writ petition is the appellant. Respondents 1 to 5 are the writ petitioners. 2. The brief facts of the case are the following. The writ petitioners were joint licensees of T.S.No.13 of Group No.V of Kuthiyathode Excise Range. Except for the year 2002 - 2003, the toddy shop was licensed and it was housed in the same building all along. The appellant and others moved various authorities claiming that the shop is located in the middle of a colony, inhabited by members of Scheduled Caste, and therefore it should be closed down, being one located within the prohibited distance, provided under Rule 7 of the Kerala Abkari Shops Disposal Rules, 2002. There were several rounds of litigations W.A.No. 1965 of 2008 2 concerning the above dispute between the persons represented by the appellants and the licensees of the aforementioned shop. 3. Finally, the Government decided to modify the schedule of the shop, by adding some area of the neighbouring shop, so that there will be some non-objectionable site, to which, if found necessary, the toddy shop could be shifted. This was done by the Government as per G.O.(P) No.58/2008/TD dated 19.3.2008, published as SRO No. 291 of 2008. In view of the said notification, the Assistant Excise Commissioner issued Ext.P9 order dated 4.4.2008, directing the writ petitioners to shift the toddy shop to another non-objectionable site within the newly extended schedule limit. The said order was passed taking into account the direction of this Court in Writ Petition No. 27221 of 2007. Challenging Ext.P9, the writ petition was filed. 4. According to the writ petitioners, even after modification of the schedule of the shop, adding additional area, still there is no other non-objectionable site available for shifting the shop. In support of that submission, they placed reliance on Ext.P12 communication issued W.A.No. 1965 of 2008 3 by the Circle Inspector of Excise, Cherthala dated 7.4.2008. The learned Single Judge, after hearing both sides, allowed the writ petition and quashed Ext.P9. The contentions of the writ petitioners that no non-objectionable site was available in the area of the shop, even after its re-scheduling, was upheld by the learned Single Judge. Aggrieved by the said judgment, the present appeal was filed. 5. The learned counsel for the appellant firstly submitted that since there was an alternative remedy against Ext.P9, this Court should not have entertained the writ petition. Secondly, it is submitted that there are non-objectionable sites available in the area of the shop and the communication of the Circle Inspector of Excise to the contrary, is not conclusive. At any rate, the learned Judge should have remitted the matter to the competent authority for fresh decision in accordance with law. Therefore, the appellant prayed for reversing the judgment of the learned Single Judge and remitting the matter to the Assistant Excise Commissioner. W.A.No. 1965 of 2008 4 6. We heard the learned counsel for the appellant and respondents 1 to 5/writ petitioners. Once the learned Judge has entertained the Writ Petition and rendered a decision on merits, it is not proper for us to relegate the parties to the statutory authorities 7. If there is any area, where the toddy shop can be located without doing violence to Rule 7 of the Abkari Shops Disposal Rules, 2002, the appellant can point out the same to the 8th respondent, Assistant Excise Commissioner. In that event, the said respondent shall look into the same and if the same is found correct, shall take appropriate further action for relocating the shop. But such a decision can be taken only after hearing both sides. If there is no non- objectionable site available in the schedule of the shop, the appellant is free to move the Government, again to modify the schedule of the shop, so that some area with non-objectionable sites is also included in the schedule. 8. The Writ Appeal is disposed of as above. If the appellant moves the Assistant Excise Commissioner with sufficient materials, W.A.No. 1965 of 2008 5 the said officer shall take a decision on the site pointed out by him, as expeditiously as possible, preferably before the issue of the new licence for the next Abkari year. (K. BALAKRISHNAN NAIR) Judge (M.L. JOSEPH FRANCIS) Judge tm