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1993 DIGILAW 159 (KER)

Ravindran v. George

1993-03-15

JAGANNADHA RAO, SREEDHARAN

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Judgment :- Jagannadha Rao, CJ. This appeal is preferred against the judgment of the learned single judge in OP 14835 of 1992-N dated 20-1-1993 dismissing the writ petition. The writ petitioner is the appellant. The main point arising in the case deals with the interpretation that is to be given to the Note below Rule 6(2) of the Kerala Abkari Shops (Disposal in auction) Rules, 1974 (hereinafter referred to as 'the Abkari rules'). 2. The appellant-writ petitioner is a resident of Irinjalakuda Municipality. Second respondent is an abkari contractor who successfully bid in an abkari auction in the Irinjalakuda Range for three years from 1-4-1991 to 31-3-1994. The case of the appellant is that the toddy shop of the aforesaid second respondent is within 200 metres from Maria Bhavan Church and, therefore, the same is within the prohibited distance under the Abkari Rules and is liable to be closed down. A question had arisen as to whether the said Maria Bhavan Church is a mere chaper coming within the meaning of 'chapel' as explained in Abdul Hameed v. Asst. Excise Commissioner (1992(1) KLT 774) or is a regular church. Yet another question that was raised before the learned single judge was as to whether a particular pathway noticed by the advocate-commissioner in his report and plan can be said to be a pathway/lane/street/road "generally used by the public" so as to bring the toddy shop within the prohibited distance from the above said church. The learned single judge came to the conclusion, on a consideration of the evidence by way of affidavits, that the church is situated in a compound where there is a hospital by name St. Vincent Diabetic Research Centre and Hospital. There is also a convent and a nursery school. The learned judge further held that the building complex is not an exclusive church, but is in the hospital complex where there is a small building having a measurement of 181/2 Ft x 141/2 Ft and the same is used as a prayer hall. The room, according to learned judge, is too small for being used as a church and Ext. P2 certificate issued by the Vicar General of the Diocese of Irinjalakuda would also show that it is a chapel. The room, according to learned judge, is too small for being used as a church and Ext. P2 certificate issued by the Vicar General of the Diocese of Irinjalakuda would also show that it is a chapel. The learned judge further observed that the mere fact that prayer is offered by some Christians of that place by itself is not sufficient to bring the place of worship within the definition of church. It is only a building attached to a hospital complex wherein provision is made for the inmates to offer their prayers. The size of the building also is an indication of the fact that it is not a church for the purpose of Abkari Rules and it is only a private prayer hall intended mainly for the convenience of the inmates of the institution. Within the complex there is also a convent wherein nuns are staying and it is for their benefit that the prayer hall is constructed and mass is being conducted there. No doubt, occasionally outside people may also be worshipping there, but that by itself would not convert the place into a regular church for the purpose of Abkari Rules. These are the findings of the learned single judge. 3. We are in entire agreement with the reasoning and conclusion arrived at by the learned single judge that the building in question is a mere chaper and not a church coming within the provisions of the Abkari Rules. 4. The case is bound to fail even on the basis of the distance rule. If the pathway, of which a part is marked, as found by the Commissioner is not to be treated as a pathway generally used by the public, the toddy shop will not be within the prohibited distance from the building even assuming that the same to be a church for the purpose of Abkari Rules. The question is as to what is the meaning of the 'Note' given below Rule 6(2) of the Rules. The Note reads as follows: - "Note: -In calculating distance the basis will be shortest pathway/lane/street/road generally used by the public". 5. In our view, the words 'generally used by the public' mean the general use by the public as of right and not by mere permission. Nor can it be a stray use or a fugitive use of the lane by outsiders. 5. In our view, the words 'generally used by the public' mean the general use by the public as of right and not by mere permission. Nor can it be a stray use or a fugitive use of the lane by outsiders. In our country, wherever there is unenclosed vacant land, whether belonging to a single person or to a large number of persons, members of the public use the property by way of an implied permission. Very strong evidence is necessary to convert such permissive use into public use as of right. The provisions of the Kerala Municipalities Act define in S.2(28) 'private street' and in S.2(30) 'public street'. They read as follows: "2(28) "private street" means any street, road, square, court, alley, passage or riding path which is not a public street, but does not include a pathway made by the owner of premises on his own land to secure access to or the convenient use of such premises. 2(30)' public street' means any street, road, square, court, alley, passage, or riding path over which the public have a right of way, whether a thoroughfare or not, and includes - (a) The roadway over any public bridge or causeway; (b) the footway attached to any such street, public bridge or causeway; and (c) the drains attached to any such street, public bridge or causeway and the land, whether covered or not by any pavement, Varanda, or other structure, which lies on either side of the roadway upto the boundaries of the adjacent property, whether that property is private property or property belonging to the Government". Further, Chapter IX of the Municipalities Act deals with 'Streets' and their maintenance and encroachment of streets. Ss.191 to 221 deal with the said subject. In our view, the words 'generally used by the public' in the Note to Rule 6(2) is intended to describe a 'public street' as defined in the Municipalities Act. The same is the position by virtue of the definition of 'public roads' in S.2(28) of the Kerala Panchayat Act. To give a more liberal wider meaning to the words 'generally used by the public' in the Note to rule 6(2) of the Abkari Rules would, in our opinion, result in creating a third category of street which is neither private nor public, but an anomalous street for the purpose of the Abkari Act and Rules. To give a more liberal wider meaning to the words 'generally used by the public' in the Note to rule 6(2) of the Abkari Rules would, in our opinion, result in creating a third category of street which is neither private nor public, but an anomalous street for the purpose of the Abkari Act and Rules. Further, such a situation might lead to claims by third parties for closure of toddy shops on the basis that they are within the prohibited distance as measured by some passage or lane which is not used by the members of the public as of right. Surely, that would not have been the intention of the Note to Rule 6(2) of the Abkari Rules. 6. We are in entire agreement with the meaning attributed to the said words in Joseph v. Excise Commissioner (1988 (2) KLT 913) which we had occasion to approve in Mohan v. Moidu (1993 (1) KLT 425). SLP No. 9592 of 1992 filed against the latter judgment was dismissed by the Supreme Court by a positive affirmation of the view taken in the judgment. For the aforesaid reasons, there are no merits in the writ appeal and it is accordingly dismissed.