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2006 DIGILAW 464 (KER)

Muraleedharan Nair v. State of Kerala

2006-07-26

S.SIRI JAGAN

body2006
Judgment :- S. Siri Jagan, J. Petitioners are aggrieved by the shifting of toddy shop No.15 of Mavelikkara Range to Building No.T.P.XII 753 situated in RS No.268/11 of Vettiyar Village, which is being conducted by the 6th respondent as licensee. According to the petitioners, the present location of the toddy shop is within the prohibited distance under R.7(2) of the Kerala Abkari Shops Disposal Rules 2002 ("the Rules" for short), from a mosque. The petitioners therefore seek quashing the order dated 25.4.2006 passed by the 4th respondent allowing shifting of the toddy shop No. 15 of Mavelikkara Range to the above said building. Related reliefs are also prayed for. 2. Essentially the question is whether the present building is within the prohibited distance under R.7(2) of the Rules. The mosque referred to by the petitioners is the Hidayathul Islam Jamayath (West) Vettiyar. The 6th respondent has filed a counter affidavit refuting the contentions of the petitioners. According to the 6th respondent, the mosque is situated beyond 450 meters from the toddy shop which is in excess of the distance mentioned in R.7(2). Although the petitioners have filed a reply affidavit, reiterating that the mosque is situated within less than 350 meters, no attempt hag been made before me to prove the same. The authorities of the mosque have not chosen to file any complaint or approach this court. The learned Government Pleader submits that the license was issued after properly verifying the fact as to whether the toddy shop is within the prohibited distance or not. According to the learned Government Pleader, it is not. The question whether the mosque is situated within the prohibited distance under R.7(2) of the Rules or not is purely a question of fact, which the petitioners have to prove by adducing evidence. Apart from the affidavit of the petitioners, which has been controverted by the 6th respondent by filing a counter affidavit, there is absolutely no material before me for coming to the conclusion that in fact there is a mosque within the prohibited distance from the toddy shop in question. 3. The learned counsel for the petitioner raised another ground relating to the competency of the Assistant Excise Commissioner to pass the impugned order. According to the counsel, the Assistant Excise Commissioner does not have power to permit shifting of toddy shops from one place to another within the notified limits. 3. The learned counsel for the petitioner raised another ground relating to the competency of the Assistant Excise Commissioner to pass the impugned order. According to the counsel, the Assistant Excise Commissioner does not have power to permit shifting of toddy shops from one place to another within the notified limits. The counsel would submit that the power to order shifting vests exclusively with the Commissioner of Excise under R.7(3) of the Kerala Abkari Shops Disposal Rules, 2002 and, therefore, the order now passed by the Assistant Excise Commissioner is without jurisdiction and, therefore, unsustainable. 4. The learned counsel for the petitioner draws an analogy from the decision of this court in Ancy Chacko v. Commissioner of Excise reported in 2000 (2) KLT 645. The said decision was confirmed by the Supreme Court in the decision of Jayaraj v. Commissioner of Excise reported in 2000 (3) KLT 820 (SC). According to the petitioner, these decisions would support the contention of the petitioner that what is contemplated in R.7(2) is only removal of toddy shop from one place to another within the notified limits in order to satisfy the distance rule mentioned in that rule itself and not otherwise. The petitioner takes me extensively to various passages in those two decisions. I do not think it necessary to go through all those passages in this decision, since according to me, that decision is not applicable to the facts of this case in so far as that case dealt with the question of shifting of foreign liquor shop from one range to another. 5. Let us see whether the contention of the petitioner on the basis of R.7 (2) and R.7 (3) is sustainable. R.7(2) and R.7(3) read as under: "7(2). No Toddy or Foreign Liquor-1 shop notified in the Gazette under R.4 shall be located outside the notified limits, but with the previous sanction of the Assistant Excise Commissioner, it may be removed from one place to another within such limits. However no such shop shall be located in or removed to a place within an area declared as a project area. No toddy shops shall be located within 400 metres and no Foreign Liquor-1 shops shall be located within 200 metres from an Educational Institution, Temple, Church, Mosque, Burial ground and Scheduled Caste/Scheduled Tribes Colonies. However no such shop shall be located in or removed to a place within an area declared as a project area. No toddy shops shall be located within 400 metres and no Foreign Liquor-1 shops shall be located within 200 metres from an Educational Institution, Temple, Church, Mosque, Burial ground and Scheduled Caste/Scheduled Tribes Colonies. In calculating distance the basis will be the shortest pathway/lane/street/road generally used by the public and the same shall be measured form gate to gate: Provided that if any Educational Institution, Temple, Church, Mosque, Burial ground or Scheduled, Caste Scheduled Tribe Colonies come into existence subsequent to the grant of licence, it shall not dis-entitle such shops for continuance. Provided further that the restrictions in distance from an Educational Institution, Temple, Church, Mosque, Burial ground and Schedule Caste/Schedule Tribes colonies for locating toddy shops shall not apply to those shops which remained unlicensed for want of any unobjectionable site, but where to be located at the same place where they where licenced for the year 2001-2002. 7(3). It shall be competent to the Commissioner of Excise to order the transfer of shops from one site or locality to another site or locality or to alter the specified limits of any shop even during the currency of the contract or to order any shops to be closed in the interest of public peace or morality or on grounds of expediency and in such an event of transfer, alteration or closure, the contractor shall have no claim for compensation." 6. I shall first deal with the scope of R.7(3). According to me, R.7(3) contemplates a mandatory order by the Commissioner of Excise to transfer one shop from one site or locality to another site or locality in the interest of public peace or morality or on grounds of expediency. The situation contemplated by sub R.3 is not a situation where the licensee applies for a shifting. That rule gives power to the Commissioner of Excise to mandatory direct the licensee to shift the toddy shop for the specific reasons stated therein. The words, "in such an event, the Contractor shall have no claim for compensation" would amply support such an interpretation. That rule gives power to the Commissioner of Excise to mandatory direct the licensee to shift the toddy shop for the specific reasons stated therein. The words, "in such an event, the Contractor shall have no claim for compensation" would amply support such an interpretation. Therefore, R.7(3) is not one dealing with an application for shifting of toddy shop by a licensee and as such, I cannot, on the basis of R.7(3), come to a conclusion that the Assistant Excise Commissioner does not have power to permit shifting of the toddy shop from one place to another within the notified limits of licence. 7. The petitioner's contention that the power of the Assistant Excise Commissioner under sub R.(2) is limited to the removal of the toddy shop from one place to another to satisfy the distance rule does not appeal to me. The latter part of the first sentence in sub R.2 says that with previous sanction of the Assistant Excise Commissioner the toddy shop may be removed from one, place to another within such limits. The word, such therein qualifies the first part of the sentence namely, "No Toddy or Foreign Liquor-1 shop notified in the Gazette under R.4 shall be located outside the notified limits", Therefore, it is abundantly clear that the word 'such' qualifies the words ‘notified limits'. The fact that the distance rule comes subsequent to the above said provisions also would lend credence to the interpretation that the first part of sub-r.2 does not have anything to do with the distance rule. Perhaps to satisfy the distance rule also by virtue of sub-r.2 the Assistant Excise Commissioner shall have power to direct shifting of the toddy shop from one place to another within the notified limits. But that does not mean that the Assistant Excise Commissioner does not have power to permit shifting from one place to another within the notified limits as contemplated in the first sentence of sub-r.2. In the above circumstances, I do not find any merit in the second contention of the petitioner also and accordingly the Writ Petition is dismissed.