IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 WP(C).No. 16523 of 2009(I) -------------------------------------- PETITIONER(S): ------------------------ 1. BENNY KURIAN, S/O.KURIAKOSE, AGED 42 YEARS, KAILIRIKUMKALAVIL HOUSE, MADHURAVELI KARA, MUTTUCHIRA VILLAGE, VAIKOM TALUK. 2. JOY,S/O.JOSEPH,AGED 52 YEARS, MUNDACKAL HOUSE, MADHURAVELI KARA, MUTTUCHIRA VILLAGE, VAIKOM TALUK. 3. JOHN JOSEPH,S/O. JOSEPH,AGED 52 YEARS, KALLIRIKKUMKALAYIL HOUSE, MADHURAVELI KARA, MUTTUCHIRA VILLAGE, VAIKOM TALUK. BY ADVS. MR.K.J.JOSEMON, MR.MATHEW SKARIA. RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY,DEPARTMENT OF EXCISE, SECRETARIAT, THIRUVANANTHAPURAM,PIN:685 605. 2. THE DEPUTY COMMISSIONER OF EXCISE, KOTTAYAM. 3. THE COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. 4. V.G.JOSHI,S/O.V.K.GOPALAN, VELIMPARAMBIL, MANJOOR P.O. VAIKOM. 5. C.M.MOHANAN S/O.MADHAVAN, CHERIYAMKUNNEL, NJEEZHOOR P.O.KOTTAYAM. 6. THRESSIAMMA LONAPPAN, D/O. JOSEPH, CHELAKKATTU,KADUTHURUTHY P.O. 7. THE DISTRICT COLLECTOR, KOTTAYAM. 8. THE SECRETARY, KADUTHURUTHY GRAMA PANCHAYAT, KADUTHURUTHY P.O. 9. THE SUB INSPECTOR OF POLICE, KADUTHURUTY. R1,2,3,7 & 9 BY GOVERNMENT PLEADER SMT. K.R.DEEPA R6 BY ADV. MR.M.G.KARTHIKEYAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.16523/2009 I APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE NOTICE DTD. 30/01/2009 GIVEN BY THE MR.CHANDY TO THE 2ND RESPONDENT. P2: COPY OF THE ORDER OF THE 2ND RESPONDENT BEARING NO. K5-2578/2006 DTD. 29/04/2009 SHOWN BY THE 4TH RESPONDENT. P3: COPY OF THE REPRESENTATION DTD. 18/05/2009 SUBMITTED BY THE PETITIONERS AND OTHER PERSONS OF THE LOCALITY BEFORE THE 2ND RESPONDENT. P4: COPY OF THE REPRESENTATION DTD. 18/05/2009 SUBMITTED BY THE PETITIONERS AND OTHER PERSONS OF THE LOCALITY BEFORE THE 7TH RESPONDENT. P5: COPY OF THE PETITION DTD. 20/05/2009 SUBMITTED BY THE PETITIONERS AND OTHER PERSONS OF THE LOCALITY BEFORE THE 9TH RESPONDENT. P6: COPY OF THE SAID LAWYER NOTICE DTD. 8/06/2009 CAUSED BY THE PETITIONERS TO THE RESPONDENTS 1, 2, 3 AND 5. P7: COPY OF THE MASS PETITION DTD. 17/06/2009 WAS FILED BEFORE THE EXCISE MINISTER. P8: COPY OF THE PETITION DTD. 12/06/2009 SUBMITTED BY THE PETITIONERS BEFORE THE 8TH RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOTTATHIL B. RADHAKRISHNAN, J ........................................... WP(C).NO. 16523 OF 2009 ............................................ DATED THIS THE 25th DAY OF JUNE, 2009 JUDGMENT The respondents 4 to 6 have a toddy shop. That was located in an objectionable site. They continue to use that side on the basis of certain Government orders which extended protection to continue such toddy shops in objectionable sites. With the passage of time, the owner of the building in which that toddy shop was housed, refused consent and is stated to have demolished that building. The Assistant Excise Commissioner has granted the respondents 4 to 6, permission to shift the said toddy shop to an adjacent building which is within a particular limit from the former building and therefore, according to the respondents 4 to 6, within permitted parameters as per the relevant Government orders. Petitioners, who are neighbours, challenged that. It is not in dispute that even the site from which the toddy shop now operates, is within the objectionable distance, when compared to certain landmarks like temple, schools etc. The issue, therefore, is as to whether the toddy shop Wpc 16523/2009 2 could be permitted to operate from the present site in terms of the orders of the Assistant Excise Commissioner. The learned counsel for the petitioners stated that the Government order relied on to give the benefit to the respondents 4 to 6 has since been superceded and the toddy shop cannot be permitted to operate in the present site. This essentially is a matter which could be considered and which ought to be considered by the Excise Commissioner if a proper representation is made. It will fall within the revisional jurisdiction of the Excise Commissioner. Hence, without expressing anything on merits, this writ petition is ordered directing that if all or any among the petitioners make a representation as aforesaid, within a period of two weeks from now, the Excise Commissioner will consider the same and pass orders after hearing the necessary parties and obtaining appropriate reports and taking into consideration all relevant Government orders. That shall be done within 45 days from the date of receipt of a representation as aforesaid. All other issues left open. THOTTATHIL B RADHAKRISHNAN, JUDGE lgk/27/6