JUDGMENT T.L. Viswanatha Iyer, J. 1. The complaint in this original petition is regarding the location of foreign liquor shop, FLR No. 220 of Chadayamangalam Range in Kottarakkara circle. The complaint is that it is situate within 400 metres of the Madan Nada temple in Kadakkal, and therefore its situation violates R.6(2)(a)(ii) of the Abkari Shops (Disposal in Auction) Rules. R.6(2) provides inter alia that no foreign liquor shop shall be located outside the limits notified in the gazette under R.4, but with the previous sanction of the Assistant Excise Commissioner, it may be removed from one place to another within such limits, but no such shop shall be located in, or removed to a place within 400 metres of an educational institution, temple, church, mosque or burial ground. 2. There are certain provisos with which this case is not concerned as no reliance is placed on those provisos by the respondents. 3. Petitioner's case is that the shop in question is situate within 400 metres of the Madan Nada temple in Kadakkal. A commission was Issued from this court to investigate and report about the location of the shop. The Commissioner, an Advocate of this court, has submitted a report on 25th September 1991 in which he has stated that the temple in question is situate in about fifteen cents of land, which is bounded on all the four sides by compound wall. The temple is on the eastern side of the Kadakkal Panchayat Bus-stand and on the northern side of the Market-Panchayat-Bus - stand road. The temple is situate under an old banyan tree about 150 years of age. There are also two other trees standing very close to it. The roof of the temple is of concrete. The temple building has a wall only on the rear side, without any doors or windows. The deities installed are Maha Ganapathy, Bhadrakali, Madan Rakshas, Nagaraja and Naga Yakshi. There is a Deepam (Lamp post) in front of the temple. The Commissioner found devotees offering prayers in the temple. According to the information gathered by the Commissioner, the temple is opened at 5'o clock in the morning, closed at 10 a. m., again opened at 5. p. m. and kept open till 8. p. m. every day. There is a well in the temple compound, on the rear side of the Banyan tree and the temple. According to the information gathered by the Commissioner, the temple is opened at 5'o clock in the morning, closed at 10 a. m., again opened at 5. p. m. and kept open till 8. p. m. every day. There is a well in the temple compound, on the rear side of the Banyan tree and the temple. On the western side, there are two rooms with concrete roofs, one of which is used as an office room, and the other, used by the priest as his store room. The temple has a mike set and amplifier. A stage had also been recently constructed for conducting religious programmes. The distance of the shop FLR 220 is 245 metres from this temple. Prima facie, and if the structure in question is a temple, the position is that there is a violation of the distance rule in R.6(2). 4. The respondents attempt to justify the location of the shop with the plea that the place of worship in this case is not really a "temple" as defined in the Abkari Shops (Disposal in Auction) Rules. It is a Kavu and it is situate in poramboke land. The respondents object to the determination of the age of the banyan tree at 150 by the Commissioner. According to them, the absence of walls for the temple (except at the back) will clearly show that the so called temple is only a Kavu and not a temple. It is therefore stated that there is nothing illegal in locating the shop as done. In support of this contention, two documents, Annexures R3(1) and R3(2) are produced. Annexure R3(1) is a letter from the Village Officer to the Excise Inspector stating that the land to the east of the Kadakkal Bus Stand is porambokke land and that it is there the Madan Nada is situated. Annexure R3(2) is dated 20-9-1991 and informs the Excise Inspector that the Panchayat had not granted permission for the construction of the compound wall on the road side of the Madan Nada 5. It is evident from the facts and particularly the Commissioners' report that there is a place of worship or a Madan Nada as contended by the petitioner. The controversy between the parties is whether this is a temple as defined in R.2(ka) of the Rules. It is evident from the facts and particularly the Commissioners' report that there is a place of worship or a Madan Nada as contended by the petitioner. The controversy between the parties is whether this is a temple as defined in R.2(ka) of the Rules. It is unnecessary to decide whether it is a kavu or a temple as understood commonly, in view of the special definition contained in S.2(ka). Temple is defined therein as meaning a place of public religious worship by Hindus where a deity is installed under a building and includes a mutt, provided that any structure on the road side pavement or in a compound of a private building with or without deity shall not be considered as a temple. There is no case for the respondents that the temple in question is situate in the compound of a private building. The contention put forward is that this structure is in poramboke land and that it is on a pavement and therefore not a "temple" as defined. The question is whether this case is liable to be accepted. 6. The land on which the temple in question stands, has compound walls on all the four sides. It is on the road side. There is a temple structure as also two other structures, used as office and store room. It has a well. There is a banyan tree under which the temple is situate. There are two other trees as well. The structure of the temple as such, has a concrete roof with wall only on back side, without any doors or windows. There are deities installed in it. Members of the public offer worship therein as of right. Such a structure is a temple under R.2(ka) since the definition only requires that it should be a place of public religious worship by Hindus where a deity is installed under a building. The existence of a building is in operative, but that ingredient is satisfied in this case. The structure in question can therefore be a temple as defined in the Rule. 7. The further question is whether it ceases to be a temple by virtue of the proviso to the rule. That excludes any structure on the road side pavement from being considered as a temple. The structure in question can therefore be a temple as defined in the Rule. 7. The further question is whether it ceases to be a temple by virtue of the proviso to the rule. That excludes any structure on the road side pavement from being considered as a temple. The fact disclosed by the Commissioner's report make it evident that this temple is not really situate on a road side pavement. It is situate on the east of the Panchayat bus-stand. It is on the Market-Panchayat-Bus-stand road. The area of the temple compound is 15 cents. It is hardly possible to believe that the road has a pavement, 15 cents in extent. It is to be noted particularly that the area is enclosed by compound walls with various other structures, trees and so on. A pavement is a place used as a foot - path by pedestrians on a public road. An extent of 15 cents of land in the way in which it has been developed cannot certainly be a pavement or a foot path used by the pedestrians for passage on a public, road. I am not satisfied on the materials on record that the temple in question is situate on a pavement. 8. The learned Government Pleader for the respondents however submits that this temple is situate on poramboke land and that itself is sufficient to dispel its character as a temple under the definition. I am cot in a position to agree. Assuming that it is on poramboke land, the definition in R.2(ka) does not exclude such temples in poramboke land from its purview. What it has chosen to exclude are only structures on road side pavements or in the compound of a private building. The fact (assuming it to be correct) that the temple is in poramboke land as alleged, is therefore Irrelevant in deciding the question whether it is a temple for the purpose of R.2(ka) unless it is on a road side pavement. I am therefore of the view that the structure in question is a temple as defined in R.2(ka) and therefore the location of FLR 220 within the distance of 400 metres thereof is violative of R.6(2)(a)(ii) of the Rules. 9. The shop in question has been located in the premises since April 1991. I am therefore of the view that the structure in question is a temple as defined in R.2(ka) and therefore the location of FLR 220 within the distance of 400 metres thereof is violative of R.6(2)(a)(ii) of the Rules. 9. The shop in question has been located in the premises since April 1991. The year for which the licence is granted is coming to a close on 31-3-1992 within a short time. I do not think this is a case where this court should interfere with the location of the shop during the rest of the current abkari year. All that can be directed is that the shop in question shall not be located within 400 metres of the Madan Nada, Kadakkal in the ensuing abkari year. 10. The petitioner is not therefore entitled to any relief in relation to the current abkari year 1991-92. The original petition is therefore disposed of with a direction to the respondents not to locate any abkari shop within 400 metres of the Madan Nada temple in Kadakkal and to treat it as a temple as defined in R.2(ka) of the Abkari Shops (Disposal in Auction) Rules.