IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 23RD MARCH 2011 / 2ND CHAITHRA 1933 WP(C).No. 221 of 2011(C) ------------------------ PETITIONER: ------------------- E.P.SOMAN, S/O.PAZHANI ANDI, IDIYAMPOTTA HOUSE, NENMARA, CHITTOOR TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.B.GOPAKUMAR SMT.CHINCY GOPAKUMAR RESPONDENT(S): ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE COMMISSIONER OF EXCISE, KERALA, THIRUVANANTHAPURAM-695001. 2. DEPUTY COMMISSIONER OF EXCISE, TRISSUR, PIN 680001. 3. THE DEPUTY COMMISSIONER OF EXCISE, ERNAKULAM, PIN 682012. 4. LALU.C.K., S/O.KESAVAN, CHERAL HOUSE, NELLAYI, THRISSUR-680305. ADDL.R5 IMPLEADED -------------------------------- ADDL.R5. A.K.RAJAN, S/O.KITTUNNY, AYYANCHIRA HOUSE, NELLAI, THRISSUR DISTRICT; ADDL.R5 IS IMPLEADED VIDE ORDER DT. 3.2.11 IN IA NO.1652 R1-3 BY GOVERNMENT PLEADER FOR R4 BY ADV. SRI.S.VINOD BHAT ADDL.R5 BY SRI.V.GOPAKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO.221 OF 2011 -------------------------------------------- Dated this the 23rd day of March, 2011 JUDGMENT The petitioner is the licencee of toddy shop No.89/10-11 of Irinjalakkuda Range. This Writ Petition has been filed mainly on being aggrieved by Ext.P6 order passed by the first respondent. The further prayer is for issuance of a writ of mandamus forbearing the respondents from objecting the conduct of the above toddy shop No.89/10-11 Nellayi of Irinjalakuda range for the year 2010-2011 by the petitioner in the premises in which it was located during 2009-2010 as per Ext.P3. The fourth respondent is residing nearby the aforesaid toddy shop. Earlier, he had preferred a complaint before the first respondent against the functioning of the said toddy shop. In fact, earlier, the petitioner had approached this Court by filing W.P.(C).No.16555/2010 challenging Ext.P13 order therein and that Writ Petition was moved at a time when the petitioner was not issued with licence and the fourth respondent herein objected to the very grant of licence. Subsequently, the petitioner was granted with the licence. The fourth respondent took up the matter in W.P.(C) NO.221/2011 2 appeal as W.A.No.1012/2010. The said appeal was disposed of as per Ext.P4 judgment. The operative portion of the said judgment reads thus:- “Since the shop has already started functioning, we are of the view that the remedy of the appellant now lies in approaching the authority concerned, if any nuisance still persists. If the appellant makes a motion in this regard, the authority concerned shall take an appropriate decision in the matter after affording sufficient opportunity of hearing not only to the appellant but respondent No.1 also, as expeditiously as possible, at any rate, within ten weeks from the date of receipt of a copy of such complaint.” 2. The contention of the fourth respondent is that subsequently, he had preferred a complaint before the second respondent on 27.9.2010. Thereafter, the second respondent conducted a personal hearing in terms of the directions in Ext.P4 judgment and the petitioner and the fourth respondent were heard and that resulted in Ext.R4(a) order. Aggrieved by Ext.R4(a) order, the fourth respondent approached the first respondent by filing Ext.R4(b) petition. Ext.P6 is the order passed thereon. As per the same, the petitioner was directed to shift the toddy shop in question by invoking the powers under Rule 7(3) of the Kerala Abkari Shops Disposal Rules, 2002. 3. The petitioner assails Ext.P6 firstly, on the ground that it has W.P.(C) NO.221/2011 3 been passed in blatant violation of the principle of audi alteram partem. It is submitted that Ext.P6 was passed without issuing notice to him and without affording him an opportunity of being heard. He also disputes the finding in Ext.P6 that the functioning of the toddy shop in question creates innumerable nuisances. There is nothing in Ext.P6 which would suggest that the said order was passed with notice to the petitioner and after affording an opportunity of being heard. The respondents are also not refuting the definite contention of the petitioner that it was passed without notice to him and without affording him an opportunity of being heard. I am of the considered view that on that sole score, Ext.P6 is liable to be interfered with. I do so. Evidently, as per Ext.P4, this Court granted opportunity to the fourth respondent to move the competent authority to raise grievances, if any nuisance persists, against the functioning of the toddy shop in the present location. In fact, it was availing the said opportunity, he had preferred Ext.R4(b) before the first respondent. Ext.P4 contained a direction that even in case the appellant therein, viz., the fourth respondent herein moved the authority, that authority should take appropriate decision in the matter only after affording sufficient opportunity of hearing to the appellant as also to the first respondent W.P.(C) NO.221/2011 4 therein viz, the petitioner herein. In that view of the matter, Ext.R4(b) submitted by the fourth respondent requires consideration. But the first respondent shall take a decision thereon only after affording sufficient opportunity to the petitioner herein as also to the fourth respondent in terms of the specific directions in Ext.P4. With the above observation, this Writ Petition is disposed of. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.221/2011 5 C.T. RAVIKUMAR, J. JUDGMENT September, 2010 W.P.(C) NO.221/2011 6