P. G. Mohan v. Muttangadam Moidu — 1992 DIGILAW 239 (KER)

JUDGMENT M. Jaganadha Rao, C.J. 1. This is an appeal preferred by the second respondent in the writ petition, OP 5794 of 1992-M. By the judgment dated 7-7-1992, the learned single Judge allowed the writ petition filed by the first respondent and issued certain directions. 2. The first respondent writ petitioner is the parent of a student studying in the sixth standard in the Government Raja's High School. Kottakkal. The school has about 3,000 students and also a Parent Teacher-Association. The complaint in the writ petition is that the Excise authorities had granted a licence in favour of the appellant second respondent as per Ext. R2(a) for the excise year from 1-4-1992 to 31-3-1993 and that the said shop which is a retail foreign liquor shop) is located within 400 metres from the school and, therefore, there is a violation of R.6(2) of the Kerala Abkari Shops (Disposal in Auction) Rules, 1974 (hereinafter referred to as 'the Abkari Rules'). At the instance of the parties, an Advocate-Commissioner was appointed by the learned single Judge in CMP 9853 of 1992 and the Commissioner submitted a report stating that the total distance between the shop and the school inclusive of the public National Highway and the private pathway from the liquor shop to the school building is 482.55 metres. On the basis of the said report, it was contended for the appellant second respondent before the learned single Judge that the distance between the shop and the school is beyond 400 metres. The learned Judge, after referring to the provisions of R.6(2) of the Abkari Rules and the Note appended thereto, came to the conclusion that the measurement has to be made from gate at the compound wall of the shop to the gate at the compound wall of the school and that it was not permissible to count the distance covered by the two "private pathways". The learned Judge pointed out that the Rule indicates the mode of measurement in the Note to R.6(2) which reads as follows: "Note: In calculating distance the basis will be shortest pathway / lane street / road generally used by the public". The learned Judge pointed out that the Rule indicates the mode of measurement in the Note to R.6(2) which reads as follows: "Note: In calculating distance the basis will be shortest pathway / lane street / road generally used by the public". (emphasis supplied) Inasmuch as the two private pathways inside the compound both of the shop and of the school are not used by the public, the learned Judge excluded 25 metres covered by the pathway from the gate of the shop to the shop and also excluded 197.85 metres covered by the private pathway from the school gate to the school building and thereby came to the conclusion that the distance from the date of the compound of the shop and the gate of the school is 240 metres, and this is within the prohibited distance of 400 metres. On that basis, the learned Judge allowed the Writ petition and directed that the appellant second respondent shall not run the shop in Building No. 3/16A of Kottakkal Panchayat. The appellant was directed to shift his business from the said building within seven days from the date of the judgment failing which the authorities to take steps to see that the shop does not function in the said premises. Aggrieved by the said judgment, the appellant has preferred this appeal. 3. In this appeal, learned counsel for the appellant has contended that the measurement of the distance by the learned Single Judge is not correct and that the private pathway within the compound of the shop premises as well as the school have also to be counted and if they are also counted, the total distance would be beyond 400 metres. It is pointed out that a view, similar to the view taken by the learned Single Judge in the judgment under appeal was taken by another learned Single Judge in Joseph v. Excise Commissioner, ( 1988 (2) KLT 913 ) and the matter is now a subject matter of appeal before the Supreme Court where their Lordships have granted stay. It is also urged that under the proviso to R.6(2) of the Abkari Rules, there is an alternative remedy before the Board of Revenue and the writ petitioner should not have approached this Court without approaching the Board of Revenue. It is also contended that so far as the representations, Exts. It is also urged that under the proviso to R.6(2) of the Abkari Rules, there is an alternative remedy before the Board of Revenue and the writ petitioner should not have approached this Court without approaching the Board of Revenue. It is also contended that so far as the representations, Exts. P1 to P3 are concerned, there is no proof that they were sent alongwith Ext. P4 to the authorities on the dates mentioned. It is also contended that a - fresh Commissioner should be appointed for measuring the distance from the shop to another gate on the eastern side of the school and that the distance would, definitely, be more than 400 metres and for that purpose, the learned counsel has now filed a fresh petition. It is lastly contended that in another case (Lukose v. Karthiyani - 1980 KLT 635 ), a learned single Judge of this Court, while dealing with a similar question, permitted the shop to be continued till the end of the excise year and that such a direction should be issued in this case also. We shall deal with these contentions one by one. Before we do so, it will be necessary to refer to R.6 of the Abkari Rules. 4. R.6 of the Abkari rules reads as follows: - "6(1): - No licensee of any toddy, arrack or foreign liquor shop shall be permitted to sell or possess toddy, arrack or foreign liquor or cocobrandy outside the local limits specified in his licence. 2(a) No toddy, arrack or foreign liquor shop, shall be located outside the limits notified in the Gazette under R.4, but with the previous sanction of Assistant Excise Commissioner it may be removed from one place to another within such limits. But no toddy, arrack or foreign . liquor retail shop shall be located in, or removed to, a place (i) within an area declared a project area, or (ii) within 400 metres from an educational institution, temple, church, mosque or burial ground, or (iii) within Harijan colonies and tribal colonies. But no toddy, arrack or foreign . liquor retail shop shall be located in, or removed to, a place (i) within an area declared a project area, or (ii) within 400 metres from an educational institution, temple, church, mosque or burial ground, or (iii) within Harijan colonies and tribal colonies. (b) No foreign liquor 1 shop shall be located in, or removed to, a place within 200 metres from an educational institution, temple, church, mosque or burial ground; Provided that the Board of Revenue may for sufficient reasons to be recorded and subject to such conditions as it may deem necessary to impose order to remove from any place any toddy shop, or arrack shop or its allowed sub shops or any retail foreign liquor shop or wholesale shop to a place outside the limits specified in sub clause (i), sub clause (ii) or sub clause (iii) of clause (a); Provided further that the toddy shop, arrack shop and foreign liquor retail shop shall be permitted to be located and licensed in such places where they were located and licensed in the Abkari year 1988-89 as a toddy shop or its sub-shop, or a foreign liquor retail shop, respectively; Provided further that such wholesale shops which were in existence in 1987-88 and converted into retail shops during 1989-90 shall be given licence to continue as retail shops in the same premises as in 1987-88, if such premises comes within the notified area of that shop. Note: In calculating distance the basis will be shortest pathway / lane street / road generally used by the public". 5. So far as the first contention is concerned we are of the view that a proper and correct interpretation of the Note would require that the distance should be counted by measuring the length of a pathway/lane street/ road generally used by the public. A learned single Judge of this Court had considered the words "generally used by the public" in Joseph v. Excise Commissioner ( 1988 (2) KLT 913 ) and that interpretation goes in favour of the respondent writ petitioner.' Even apart from the said judgment, we would like to point out that the Note never contemplated to include the distance between the gate of institutions mentioned in R.6(2)(a)(ii) and the institutions as such. It is not difficult to presume that the rule-making authority was conscious of the fact that educational institutions, temples, churches, mosques or burial grounds would normally consist of an open ground and a main building. It is possible that educational institutions are covered by certain rules which require a particular extent of open ground being left for the use of the students. It is, therefore, not reasonable to construe the Note by computing the distance of the shop to the above said institutions by way of measuring the distance from the gate of the shop building to the gate of the above said building or of the above said institutions. In the present case, the distance between the gate of the school and the school building is 197.85 metres. The distance between the gate located at the compound wall of the shop and the shop is 25 metres. While the sum total may be 482.55 metres, what, according to us, is relevant is the distance from the respective gates at the compound wall above referred to and that distance is 240 metres, which is falling within the prohibited distance of 400 metres. The Commissioner's report clearly mentions that so far as the pathway leading to the school is concerned, it is a private pathway belonging to the school and this is clear from the plan also. If that be so, the said private pathway could not be treated as a pathway used generally by the public. We are therefore, of the view that the distance is clearly 240 metres and falls within the prohibited distance. 6. The next contention is that the writ petitioner should have approached the Board of Revenue and that the Board has powers under the proviso to R.6(2)(b) of the Abkari Rules to direct the change of locations. In our view, the proviso cannot be described as a provision for an alternative remedy as such. The proviso, in our opinion, is only an enabling provision which confers certain powers on the Board of Revenue to issue certain directions in regard to shifting of shops "of sufficient reasons". In our view, the proviso cannot be described as a provision for an alternative remedy as such. The proviso, in our opinion, is only an enabling provision which confers certain powers on the Board of Revenue to issue certain directions in regard to shifting of shops "of sufficient reasons". In other words, while R.6(2)(a) and 6(2)(b) require that no toddy, arrack or foreign liquor retail or wholesale shop is to be located within a particular distance as mentioned in the said provisions, the proviso confers wider powers on the Board of Revenue to direct shifting of the shops even for other reasons not covered by R.6(2)(a) and 6(2)(b) and those reasons are to be "sufficient reasons' and should .be recorded. The reasons must be sufficient and the Board could impose conditions which it may deem necessary to impose. It is, therefore, clear that the proviso is not in the nature of an alternative remedy, but is in the nature of a separate provision conferring powers on the Board for "sufficient reasons" which reasons must strictly come within the conditions mentioned in R.6(2)(a) and 6(2)(b) and the Board could, in such circumstances, issue directions as it may deem necessary. It is, therefore, clear that the writ petitioner cannot be blamed for not approaching the Board of Revenue before approaching this Court. 7. So far as the other contention that there is no proof that Exts. P1 to P4 were sent to the authorities is concerned, we are afraid that this contention cannot be accepted. In the counter affidavit filed by the appellant second respondent before the learned single Judge, it is clearly stated as follows: "Exts. P1 to P4 have no value in the eyes of law. Those representations are sent at the instance of some interested persons". The above allegation made by the appellant in the counter affidavit filed before the learned single Judge would clearly show that no dispute was raised as to the fact that the representations were sent as claimed by the writ petitioner. The only contention raised was that the representations were sent at the instance of some interested persons. Therefore, this contention also cannot be accepted. 8. The only contention raised was that the representations were sent at the instance of some interested persons. Therefore, this contention also cannot be accepted. 8. The additional affidavit now filed by the appellant requesting this Court to send a Commissioner once again in this appeal for the purpose of measuring the distance between the shop and the eastern gate of the school on another side is concerned, we are afraid we cannot now permit the appellant to raise a new plea that the gate for reference to which the measurement was made by the Commission has not been used by the students of the school at all. In fact, before the learned single Judge, it appears to us, that it was common ground between both sides that the school gate given in the plan was being used by the 3000 students of the school. If it was the contention of the appellant that that gate was not being used, but another gate on the eastern side alone was being used, such a question should have been raised before the learned single Judge. The contention raised now, in fact, is contrary and conflicts to the case of the appellant before the learned single Judge. We are, therefore, not inclined to direct appointment of any Commissioner at this stage for further measurement. 9. The last of the contentions is that the appellant should be permitted to run his shop at the present place till 31-3-1993. Learned counsel for the appellant has, no doubt, relied upon the decision of this Court in Lukose v. Karthiyayani ( 1980 KLT 635 ) for the purpose of stating that in that case the shop was allowed to be continued at that place. Having regard to the entire facts of the case, we do not think that we can permit the shop to the located within the prohibited distance, but we are, however, prepared to extend the time granted by the learned single Judge which expired yesterday. Having regard to the fact that the appellant might need sometime to shift his shop after referring the matter to the Excise authorities, we are inclined to grant him one month's time from today for shifting his shop as directed by the learned single Judge. The appeal fails and is accordingly dismissed.