Judgment :- Jagannadha Rao, C.J. The writ petitioner raises the question whether R.6(2) of the Kerala Abkari Shops (Disposal in auction) Rules, 1974, which prohibits liquor shops from being located within a particular distance from various institutions including 'burial grounds', would also take in, - apart from a graveyard of Christians and Muslims, - a 'cremation ground' used in the case of Hindus, which could be used both for cremation of dead bodies, but also for interning the dead bodies of the young? 2. Initially, exemption from R.6(2) which imposes this'distance-rule' between liquor shops on the one hand and educational institutions, Temples, Churches, Mosques or Burial grounds on the other, was being granted year after year, but the excise policy changed with effect from 1993-94 and the said exemption was discontinued from 1-4-1993. a batch of Writ Petitions filed as O.P.Nos. 4070/93 & batch questioning the application of R.6(2) to existing liquor shops was upheld by us by judgment dated 25-6-1993. A little before the said judgment, a number of abkari contractors had filed O.P.No.6637 of 1993 and obtained a very general order before a learned Single Judge on 18-5-1993 notwithstanding the change in the excise policy w.e.f. 1-4-1993, for continuing their shops within the prohibited distance till such time as they were able to shift these shops or till 1-4-1994. These abkari contractors were also parties to the batch of O.Ps. which we dismissed on25-6-1993, and where we upheld the change in the excise policy for 1993-94. On the ground that, notwithstanding their failure in the batch of OPs decided on 25-6-1993, they were being allowed to vend liquor within the prohibited distance, an appeal, W.A.No.1130 of 1993, was filed against the general order dated 18-5-1993 in O.P.Nos. 6637 of 1993 in W.A.No.1130of 1993, we suspended the order of the learned Single Judge in O.P.No.6637 of 1993 dated 18-5-1993, and further directed on 26-8-1993 the Assistant Excise Commissioner, Trichur, as follows: "The Asst. Excise Commissioner, Trichur, is hereby directed to implement R.6(2)01. c Kerala Abkari Shops (Disposal in auction) Rules, 1974, within his jurisdiction without any delay whatsoever." (emphasis supplied) Thereafter, the Asst. Excise Commissioner, Trichur, took steps to close down/ shift the shops in his jurisdiction beyond the distance rule provided in R.6(2), so as to conform to the excise policy for 1993-94, and on our Division Bench judgment dated 25-6-1993. 3. Excise Commissioner, Trichur, took steps to close down/ shift the shops in his jurisdiction beyond the distance rule provided in R.6(2), so as to conform to the excise policy for 1993-94, and on our Division Bench judgment dated 25-6-1993. 3. C.C.C.No. 206 of 1993 was filed by the petitioner who is a prohibition-activist, against O.C Kultappan (1st respondent) who was the concerned Assistant Excise Commissioner, Trichur, on the ground that inspite of all these orders of this Court, the shop bearing FLR No.150 of 1993-94 was not closed down or shifted. Thereafter the licensee Mr.C.C. Thampi, and his Manager, Mr.E.P. Raphel, have been impleaded as additional respondents 2 and 3. Subsequently, the Contempt Case was, by consent, converted into a petition under Art.226 of the Constitution of India. The name of the 1st respondent was amended as Asst. Excise Commissioner, Trichur. Senior counsel, Sri.S. Venkatasubrahmania Ayyar, representing the Manager (3rd respondent) was heard. The licensee (2nd respondent) remained ex-parte. It appears he is now living abroad and practically left the contest to his Manager. The Assistant Excise Commissioner (1st respondent) is represented by Government Pleader. 4. It was agreed by both sides that instead of going into certain minor technical points raised in the counters, we could decide the main point arising in the case. The contention of Sri.M. Ajay, counsel for the petitioner, is that a 'cremation ground' for Hindus is used for burying young children also and falls within R.6(2), and that in any event, the word 'burial ground' is used in a broad-, general sense and in common parlance, and is applicable to graveyards meant for the dead not only from the Christian and Muslim communities, but also the place used for cremation or burning of dead bodies among Hindus. It is pointed out that even among Hindus, when young or tender children the, they are 'interned' inside the earth in these very cremation grounds. It is contended that a 'purposeful' interpretation must be given to the relevant provisions in R.6(2). What is intended is that liquor shops should be at such a distance as not to distract the persons who are concerned with the solemn funeral rights for the deceased among all communities, be they Christian, Muslim or Hindu. It is contended that a 'purposeful' interpretation must be given to the relevant provisions in R.6(2). What is intended is that liquor shops should be at such a distance as not to distract the persons who are concerned with the solemn funeral rights for the deceased among all communities, be they Christian, Muslim or Hindu. It is argued that the rule-making authority could not have thought that liquor shops could be located within the prohibited distances so far as Hindu cremation grounds alone are concerned. 5. On the other hand, it is contended by learned Senior Counsel, Sri. S. Venkatasubramania Aiyar for the third respondent that the approach to the cremation ground is not from the M.G. Road side but from the Kamath road on the opposite side and if it is that road that is used for bringing dead bodies, the liquor shop is beyond 400 metres from the cremation ground. It is also argued that it is not used to intern dead bodies of children and that the rule-making authority deliberately used the word 'burial ground' which is distinct from'burning ground'. The former are used by Christians or Muslims and prayers are conducted at these cemeteries or Kabrastam, (as they are called) regularly, even after the internment of dead bodies, periodically or on special occasions whereas, in the case of Hindus, once the cremation is over, no further prayers are conducted at the cremation ground later on. 6. Before going into the question of interpretation of the rule, we shall first deal with one of the other points raised on behalf of the Manager, the third respondent, namely, whether the Hindu community is using the M.G.Road entrance at Trichur or using the Kamath Road entrance. If it is the former, the shop (which is opposite to the M.G.Road entrance) is admittedly within 400 metres. If it is the Kamath Road side, it will be beyond 400 metres. Now, for this purpose, by consent of parties, an advocate-commissioner was appointed and he submitted a report dated 5-11-1993 (with Annexures I to XII) after inspecting the place and recording statements of a large number of persons in the locality. He has given a finding that the Hindu community is using the entrance from the M.G.Road side only and not from the Kamath Road side, as contended for by the third respondent. He has given a finding that the Hindu community is using the entrance from the M.G.Road side only and not from the Kamath Road side, as contended for by the third respondent. This finding which is based upon ample evidence could not be challenged by the third respondent's counsel. Therefore, we hold that the shop being run by the third respondent on the M.G. Road and which is on the opposite side of the entrance to the cremation ground is within 400 metres from the said cremation ground. 7. We now come to deal with the main question arising from R.6(2). That Rule, in so far as it is relevant for our purposes, reads: "Rule 6(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 as 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 I shop shall be located in, or removed to, a place within 200 metres from an educational institution, Temple, Church, Mosque or Burial ground; In the present case we are concerned with the question whether the 'cremation ground' is a burial ground and is within 400 metres from the foreign liquor retail shop. 8. The decision of the case turns again upon two points. The first one is whether so far as the 'cremation ground' in question, which is used by the Hindu community at Trichur is concerned, it is also used as a 'burial ground' so far as dead bodies of young children are concerned. If that is proved, then it will not be proper to treat the ground only as a 'cremation ground', but it must be treated as both a'cremation and burial ground', and in that event R.6(2) would directly apply. The second one is whether, even assuming that the ground is used only for 'cremation' purposes, it falls within the meaning of the words 'burial ground' in R.6(2). 9. The second one is whether, even assuming that the ground is used only for 'cremation' purposes, it falls within the meaning of the words 'burial ground' in R.6(2). 9. In fact, when we appointed the Advocate Commissioner by consent of parties, we directed the Commissioner not only to find out whether the Hindu community is using the entrance on the M.G.Road side (opposite to the shop in question), but also whether the cremation ground is being used for interning the dead bodies of young children. In our order dated 29-10-1993, appointing the Commissioner, we said: "Another thing, to be enquired into, is whether the burial ground inside is being used purely for purposes of cremation of bodies or whether it is also used for burial of bodies particularly in the case of children. If there are any tombs inside the burial ground, the same may have to be identified." In his report dated 5-11-1993, filed along with Annexures (I to XII), the Commissioner has gone into the aspect of the matter and his finding is based on the statements of members of the locality recorded by him as Annexures I to XII. The Commissioner has found that in the case of Hindu children who the on the same day they are born, this cremation ground is being used for 'interning' such dead bodies of children. In fact, Prof Devanarayanan, President of Pardi Samooha Madam, whose statement is recorded as Annexure VI, stated that burial is rare but that such a burial of a newly born child who died on the same date of birth took place on 12-1-1993. The Advocate Commissioner then recorded the statement of Mr.V.B. Valsan (Annexure VII), Sub Registrar of Births and Deaths, Trichur, who stated that he was the custodian of the Register of Births and Deaths and he showed the Register which disclosed that a baby was born to one Geeta on 12-1-1993 and that the baby died on the same day. The Commissioner found that the baby referred to by Prof. Devanarayanan could be this baby. The Commissioner found that the baby referred to by Prof. Devanarayanan could be this baby. While one Subramaniam, Municipal Councillor (Annexure X) said'cremation only and no burial', the Commissioner-in-charge of the Trichur Municipality, Ms.Philomina Mathew said 'it is used for both cremation and burial', on this material, the Advocate Commissioner found as follows: "As to whether the burial ground is used purely for the purposes of cremation' of bodies or whether it is used for burial (of) bodies, particularly in the case of children, it appears it is used for both. But the burial of dead bodies of children is rather very rare. Only the dead bodies of new born babies and infants are buried. The last instance of such burial of the dead body of a new born baby was on 12-1-1993. No tomb or any like structure is seen inside the burial ground." (emphasis supplied) On a consideration of the Commissioner's report, it must, in our opinion, be accepted that the 'cremation ground' in question at Trichur on the opposite side of the M.G. Road (i.e. Opposite to the shop) is used not only for 'cremation purposes' but also for burial of dead bodies of tender or infant children. The statement of the Acting Commissioner of the Municipality, and of the Professor are clear. We hold that, at any rate, it is being used and also intended to be used, not only as a cremation ground but also as a burial ground for the dead bodies of young children of the Hindu community at Trichur. On that basis, the shop of which the 2nd respondent is the licensee, and the third respondent is the Manager, is within the prohibited distance of 400 metres and has to be closed as being violative of R.6(2) and has to be shifted beyond 400 metres. This is our finding on the first part of this question. 10. On the above finding that the cremation ground is being used not only for cremation but also for burial, it is indeed not necessary for us to go into the other question whether the words 'burial' ground used in R.6(2) are used in a broad sense as applicable to the burial grounds not only of Christians and Muslims, but also to the grounds which are used by Hindus for purposes of cremation. 11. 11. Even though the question arises only alternatively, i.e., if we are wrong on the other aspect referred to above, we would proceed to deal with it for a complete answer to the questions raised. 12. In our view, the finding on the alternative question is also to be against the shop licensee, and his Manager. In our view, Rule 6(2), as shown below, uses the word 'burial ground' in a broad manner and is used in 'common parlance' as including not merely the burial grounds used by Christians and Muslims, but also the place where Hindus cremate the dead bodies of members of their community. Our reasons are as follows. It is true that Christians bury their dead adjacent to the Church and Muslims, adjacent to the Mosque and in a strict sense 'burial ground' will mean a ground where dead bodies are buried. It is true that so far as Hindus are concerned, generally, the dead are consigned to the flames. May be customs in certain local areas require (as among the Lingadhars in Andhra) the dead bodies are to be interned. As already stated earlier, in the case of Hindu children of tender age they are also buried. But, in the context of R.6(2) the words 'burial ground', in our opinion, are used in the larger sense so as to cover not only the cases of burial of dead bodies of Christians and Muslims, but also of the Hindus, though in the case of Hindus, a majority (i.e. elders) are cremated and only children are buried. The rule-making authority, in our view, did not intend to restrict the words 'burial ground' in R.6(2) to the case of the dead from Christian and Muslim communities alone. The words 'burial ground' were intended to cover cases of cremation as well as burials of dead bodies from the Hindu community as well. We do not think that because prayers are conducted annually or periodically at the tombs of dead bodies among Christians and Muslims, the words were intended to be restricted to those communities alone. The words 'burial ground' were intended to cover cases of cremation as well as burials of dead bodies from the Hindu community as well. We do not think that because prayers are conducted annually or periodically at the tombs of dead bodies among Christians and Muslims, the words were intended to be restricted to those communities alone. While it may be true, barring certain local customs, that Hindus may not go again to the cremation ground annually or periodically, the fact remains that dead bodies of Hindus, when they arc brought to the cremation ground, rituals are performed for a period extending upto 11 or 13 days and during that period the rituals could be, and are also, partly held in the cremation ground. Further when, day after day, dead bodies are brought in, rituals are held-sometime before the body is cremated. Therefore, even assuming that a particular ground is used for cremation purposes generally and only occasionally for burying (as in the case of children), the fact remains that every day, rituals do take place and various Gods or minor deities are invoked. The case on hand is not the occasion for going into details of rituals but what we wish to emphasise is that rituals and prayers are held, every day, throughout the year whether generally in cases of cremation or occasionally in the case of burial or bodies (of children). In our view, therefore, the rule-making authority used the words 'burial ground' not only to refer to the grounds where the dead from among Christians and Muslims are buried, but also to the grounds used by Hindus where generally the dead bodies are consigned to the flames and occasionally, as in the case of children, the dead bodies are buried. It may be that in the case of internment of dead bodies of children sometimes no tomb is constructed while, at other times, tombs are constructed. What we mean to say is that the Hindu community at a big place like Trichur -as admitted by the Acting Municipal Commissioner - cannot be deemed to have restricted the ground only for cremation. The ground is also used, though in the case of death of young children, for burial purposes. What we mean to say is that the Hindu community at a big place like Trichur -as admitted by the Acting Municipal Commissioner - cannot be deemed to have restricted the ground only for cremation. The ground is also used, though in the case of death of young children, for burial purposes. We, therefore, alternatively hold that the rule-making authority used 'burial ground' in R.6(2) as being applicable not only to cases of deaths in Christian and Muslim communities, but also in the case of Hindus. The attempt to read the words 'Mosque or burial ground' as in one group is not correct. The words, Temple, Church and Mosque present one idea while the words 'burial ground' are distinct and are applicable to all communities. Hence respondents 2 and 3 are to be compelled to shift the shop to a place beyond 400 metres. 13. It may be that on an earlier occasion the civil court passed certain orders treating the 'burial ground' as not applicable to Hindus but that view does not come in the way of the Court examining the matter afresh especially when the petitioner and respondents 2 and 3 were not economic parties thereto. Reference was also made by the learned counsel for the third respondent to the Kerala Panchayats (Burial and Burning Ground) Rules, 1967 and S.322 of the Kerala Municipalities Act, 1960, to show that certain Rules or Statutes specifically refer to 'burial' and 'burning ground' as distinct, whereas the Abkari Rules only refer to 'burial ground'. In our opinion, in view of the need to impose various restrictions for burial or burning, the said Rules or Acts in regard to Panchayats and Municipalities had to make separate provisions. The purpose of Akbari Rules is to keep abkari shops away from certain institutions. We have already held that Hindus too use the cremation ground for burial purposes. Hence the above argument does not hold good. For the aforesaid reasons, we hold that the shop FLR 150/93-94 on M.G. Road, Trichur of which the 2nd respondent is the licensee and the third respondent is the Manager is within the prohibited distance of the 'burial ground 'and is liable to be closed forthwith by the 1st respondent subject, of course, to its being shifted to an unobjectionable place. The 1st respondent, the Assistant Excise Commissioner, Trichur, will take action accordingly. The O.P. is allowed.