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2009 DIGILAW 547 (KER)

P. N. Thilakan v. The Commissioner Of Excise

2009-06-26

C.T.RAVIKUMAR, K.BALAKRISHNAN NAIR

body2009
Judgment :- Balakrishnan Nair, J. The appellant is the writ petitioner. The respondents herein were the respondents in the writ petition. The brief facts of the case are the following: The petitioner was the licensee of T.S. No.15 of Narakkal Excise Range for the year 2007-08. On the motion made by the 3rd respondent and others, the said shop's permit was cancelled by Ext.P7 order of the Commissioner of Excise, which was preceded by Ext.P6 proceedings of the Assistant Excise Commissioner making a recommendation to the Commissioner to cancel the licence. The reason for cancellation is that the shop is located in a building which is within the prohibited distance of 400 metres of a Mosque. Therefore, in view of the provisions of Rule 7(2) of the Kerala Abkari Shops Disposal Rules, 2002, the shop should not have been licensed. Based on that finding, Ext.P19 licence granted to him has been cancelled by Ext.P7. Challenging Ext.P6 recommendation of the Assistant Excise Commissioner and Ext.P7 order of the Excise Commissioner, the writ petition was filed. The petitioner contended that the structure in question is not a Mosque but is only a Thycavu or a Niskara palli. The same is evident from the very name of it which is called Ismail Sait Thycavu. The registers maintained by the Wakf Board also support this view. It is a Thycavu or a Niskara palli and not a Mosque within the contemplation of the Wakf Board. The learned single Judge, after hearing both sides, held that the structure in question is a Mosque and, therefore, dismissed the writ petition. The petitioner feeling aggrieved by the said decision, preferred this writ appeal. 2. We heard Dr.K.P.Satheesan for the appellant. He submitted that the materials on record, including the pleadings of the contesting respondents in their counter affidavit, and Ext.R3(f) would show that the structure in question is only a Thycavu or a Niskara palli and not a Mosque. Therefore, the learned Judge went wrong in holding that it is a Mosque, it is submitted. 3. The definition of Mosque under Rule 2(l) of the Abkari Shops Disposal Rules reads as follows: "Mosque" means a public place where prayer is offered by Muslims: Provided that any structure on the road side, pavement or in a compound of a private building with or without a deity shall not be considered as a "Mosque". 3. The definition of Mosque under Rule 2(l) of the Abkari Shops Disposal Rules reads as follows: "Mosque" means a public place where prayer is offered by Muslims: Provided that any structure on the road side, pavement or in a compound of a private building with or without a deity shall not be considered as a "Mosque". Going by the above definition, it would appear that any public place, where prayers are offered by Muslims, will be treated as a Mosque, unless it is covered by the proviso. The proviso says that any structure on the road side, pavement or in the compound of a private building will not be considered as a Mosque. It is not in dispute that the building is used by Muslims for offering prayers. No one has a case that the structure concerned is a structure on the road side or pavement or in the compound of a private building. Undisputedly, Muslims offer prayers there. So, it answers the definition of Mosque. Of course, the Mosque as understood in common parlance or as understood by the Wakf Board may be different, but the Rule making authority has chosen to give an artificial meaning to it. Since the meaning of the words are plain, the court is bound to give effect to the same. Its decision cannot be clouded by any concept regarding Mosque in common parlance. So, we are of the view that finding of the learned single Judge that the structure in question is a Mosque for the purpose of Rule 2(l) of the Rules is legal and valid. Therefore, the Writ Appeal fails. But, learned counsel for the appellant submitted that he has got yet another contention relying on the fact that the shop was being run in the same building for the last few years. The said contention is seriously disputed by the counsel appearing for respondents 3 and 4. Since this is not a point raised before the learned single Judge, it is not proper for us to consider the same. The remedy of the petitioner is to move the learned single Judge. In view of the above facts, the Writ Appeal is dismissed. The right, if any, of the appellant to move the learned single Judge will not be affected by this judgment.