IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1076 of 2008()
1. STATE OF KERALA REP. BY SECRETARY
... Petitioner
2. THE COMMISSIONER OF TAXES,
3. ASST. EXCISE COMMISSIONER,
4. THE CIRCLE INSPECTOR OF EXCISE,
Vs
1. UDAYAMMA MANOHARAN, W/O.LATE
... Respondent
For Petitioner :GOVERNMENT PLEADER
For Respondent : No Appearance
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :17/02/2009
O R D E R
K. BALAKRISHNAN NAIR &
M.L. JOSEPH FRANCIS, JJ.
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W.A.No. 1076 of 2008 &
W.P.(C).No. 23765 of 2008 D
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Dated this the 17th day of February, 2009
JUDGMENT
Balakrishnan Nair, J.
W.A.No.1076 of 2008
The respondents in the writ petition are the appellants. The
writ petitioner is the respondent herein. The writ petitioner’s
husband was the licensee of Toddy Shop No.44 of Kuttanad
Excise Range. The last of the licences issued in favour of the
said shop was during the financial year 2000 – 2001. The site of
the toddy shop was objectionable as the same was within the
prohibited distance of a Church. By virtue of the exemption
orders issued by the Government, as per G.O.(Ms) No.74/99/TD
dt.21.4.1999, the shop was licensed in the very same premises
for the year 2000 – 2001. Thereafter, there was a change in the
W.A.No. 1076 of 2008 & W.P.(C).No. 23765 of 2008
2
Abkari Policy and the Workers’ Co-operative Society was granted the
privilege to run the toddy shops in the above Excise Range. But the
said Co-operative Society has not chosen to apply for licence to run the
shop for the year 2001 – 2002. As part of the new Abkari policy, 1000
toddy shops in the State were abolished for the year 2002 – 2003. One
of them was T.S.No.44 of Kuttanad Excise Range. As per the Abkari
policy for the year 2007 – 2008, the cancelled toddy shops were
restored and consequently T.S.No.44 was also restored and it was re-
numbered as T.S. 108 of Group VII of Kuttanad Excise Range.
2. The petitioner applied for licence for the said shop for the
year 2007 – 2008 as per Ext.P4. The petitioner claimed the benefit of
the second proviso to Rule 7(2) of the Kerala Abkari Shops Disposal
Rules, 2002, so that she could house the shop in the very same
premises where it was earlier run. Since the application was not
considered, the petitioner approached this Court seeking a writ of
mandamus to direct respondents 3 and 4 to process the petitioner’s
W.A.No. 1076 of 2008 & W.P.(C).No. 23765 of 2008
3
application in the light of the second proviso to Rule 7(2) of the
aforementioned Rules and to grant the licence.
3. The respondents, who are the appellants herein, resisted the
writ petition stating that the case of the petitioner is not covered by the
proviso. After hearing both sides, the learned Single Judge upheld the
contentions of the petitioner and a direction was issued to grant the
licence to her. The aggrieved respondents have come up in appeal.
4. We heard the learned counsel on both sides.
5. The second proviso to Rule 7(2) as it stood at the relevant
time reads as follows:
“Provided further that the restrictions regarding
distance from an Educational Institution, Temple, Church,
Mosque, Burial ground and Scheduled Caste/Scheduled
Tribes Colonies for locating toddy shops shall not apply to
those shops which remained unlicensed for want of
unobjectionable site and which are for that reason sought
to be located at the same place where they were licensed in
previous years availing of the exemptions given to them by
notifications/Government orders in this regard.”
W.A.No. 1076 of 2008 & W.P.(C).No. 23765 of 2008
4
For getting the benefit of the above proviso, the shop concerned should
have remained unlicensed for want of unobjectionable site and for that
reason the same is sought to be located at the same place where it was
licensed in the previous years, availing exemptions given to it by
Notifications/Government orders in this regard.
6. In this case, we notice that the shop was not licensed for the
year 2001 – 2002 because of the fact that the Workers’ Co-operative
Society which got the privilege to vend toddy has not chosen to submit
any application for licence. Subsequently it remained unlicensed
because there was no shop at all as it was abolished by the
Government. The toddy shop was ordered to be re-established only
during the financial year 2007 – 2008. So, it was not a shop which
remained unlicensed for want of unobjectionable site, which is the first
ingredient for the application of the second proviso to Rule 7(2). It
remained unlicensed for the year 2001 – 2002 because the Workers’
Co-operative Society did not apply for licence. Thereafter, it remained
unlicensed as the shop itself was abolished. Therefore, we feel that
W.A.No. 1076 of 2008 & W.P.(C).No. 23765 of 2008
5
on the facts of the case, the second proviso to Rule 7(2) of the
Kerala Abkari Shops Disposal Rules, 2002 is not attracted. Therefore,
the direction given by the learned Single Judge cannot be sustained.
Accordingly the Writ Appeal is allowed and the Writ Petition is
dismissed.
W.P.(C) 23765 of 2008
7. The petitioner herein, who has got the privilege to vend toddy
for the year 2008 – 2009 in T.S.No. 44 (which was later re-numbered as
T.S. 108 and now re-numbered as T.S. 107) is claiming the benefit of
Ext.P5 judgment in W.P.C. 34249 of 2007 for locating the toddy shop
in the premises where it functioned during the year 2000 – 2001.
Since we have already reversed Ext.P5 judgment in Writ Petition
34249 of 2007 as per the judgment in W.A.No.1076 of 2008, the
prayer of the petitioner cannot be granted.
8. Accordingly, this Writ Petition is dismissed. But this will
not affect the rights of the petitioner to house the aforementioned toddy
W.A.No. 1076 of 2008 & W.P.(C).No. 23765 of 2008
6
shop in some unobjectionable site within the notified limits of the
schedule of the shop.
(K. BALAKRISHNAN NAIR)
Judge
(M.L. JOSEPH FRANCIS)
Judge
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