IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 23828 of 2007(J)
1. K.J.THANKACHAN, KUTTUVELITHARA HOUSE,
... Petitioner
2. K.V.JOSEPH, KALAYEZHATH HOUSE,
3. K.M.XAVIER, ABJO BHAVAN,
4. P.S.SASIDHARAN, KALATHILPARAMBIL,
5. V.BIJUKUMAR, VAROORUTHIL,
6. SUMATHI, VELIKKAKATH,
7. SELVARAJ, ARAMURIYIL,
8. ALBINA JOSEPH, KALAYEZHATH,
9. VIJITHA, KOKKALAMPARAMBIL,
10. RADHA ASOKAN, PERUNILA HOUSE,
11. P.P.APPACHAN, PERIYAPARAMBU,
12. REMANI, PERINGATTU HOUSE,
13. SALILA MOHANDAS, KOLLARANIKARTHIL,
14. SUMA SIVADAS, KOLLARANIKARTHIL,
15. AMBIKA BABU, PERUNILA,
16. THANKACHAN MATHEW, KALEZHATH,
Vs
1. ASSISTANT EXCISE COMMISSIONER,
... Respondent
2. EXCISE CIRCLE INSPECTOR, CHERTHALA.
3. BAHULEYAN, POZHITHARA HOUSE,
4. THE SUB INSPECTOR OF POLICE,
For Petitioner :SRI.P.V.JAYACHANDRAN
For Respondent :SRI.P.GOPAKUMARAN NAIR
The Hon'ble MR. Justice K.M.JOSEPH
Dated :25/09/2007
O R D E R
K.M.JOSEPH, J.
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W.P.(c).No. 23828 OF 2007
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Dated this the 25th day of September, 2007
JUDGMENT
Petitioners have approached this court challenging Ext.P8.
They seek an order of injunction restraining the third respondent
in conducting the toddy shop and to direct the fourth respondent
not to grant any police assistance to the third respondent in
conducting the toddy shop. According to the petitioners if
permission is granted to the third respondent to conduct toddy
shop in the property owned by Sri.Mohanan , it will definitely
result in unhealthy and precarious situation and will hinder the
peaceful atmosphere of the locality. Petitioners have submitted a
mass petition as Ext.P1. There is inaction and it resulted in Ext.P2
being submitted. According to the petitioners they have
approached this court and Ext.P3 was passed. Ext.P4 is the copy
of the report published in Madhyamam daily. Like wise Exts.P5,
P6 and P7 are paper reports relied on by the petitioners. By Ext.P8
sanction was granted for shifting the toddy shop to the property
owned by Sri.Mohanan.
WPC No.23828/07 2
2. I heard learned counsel for the petitioner
Sri.P.V.Jayachandran and the learned counsel for the third
respondent besides the learned Government Pleader. This court
appointed an Advocate Commissioner to submit a report. A
report is filed.
3. Learned counsel for the petitioners urges three
grounds. He would submit that under the conditions of licence,
toddy shop can be conducted only in a building. He would point
out the photograph of the proposed building to contend that there
is no building. It is further contended that there is one temple
within 400 metres of the proposed site. Finally it is contended
that there is a family welfare centre within 400 metres.
4. Per contra, learned counsel for the third respondent
would contend that they were given licence on 07/05/2007 at
another place situated 1km. away. It is submitted that there was
protest and therefore ultimately Ext.P8 was passed granting
permission for shifting.
5. As far as the plea that there is no building, it is not in
dispute that there is no pleading in this regard. Of course,
learned counsel for the petitioners relies on the photograph.
Learned counsel for the third respondent submits that in fact the
WPC No.23828/07 3
existing building was destroyed by some persons and he would
submit that pursuant to Ext.P8, toddy shop will be conducted only
in conformity with the terms and conditions in the licence.
6. As regards the question whether it is violative of Rule
7(2) because there is a temple as reported by the Advocate
Commissioner, the contention of the third respondent is that it is
not a temple as defined under Rule 2(m) of the Kerala Abkari
Auction Rules. He relies on the decision reported in Falgunan v.
Asst. Excise Commissioner ( 1994(1)KLT 159). Therein the
learned Single Judge (as his lordship then was) held as follows:
” The main thrust of the argument of the
petitioner’s counsel is that Manikandanal Sree
Subramania temple could be considered as a
temple on the basis of the meaning given to the
word ” temple” in common parlance and it is
argued that the definition of the temple given in
the Abkari Shops ( Disposal in Auction) Rules gives
a different meaning to temple and that any
structure on the road side, pavement or a private
property cannot be said to be a temple. It is also
contended that in order to make a temple the
deity must have been installed under a building
and any shed or temporary structure will not come
under its definition. Going by the definition given
WPC No.23828/07 4
under Rule 2(ka) it is clear that in order to make a
temple it must be a place of public religious
worship where the deity is installed under a
building. Any other place of worship which is only
a structure may not come under the definition of
temple. The presence or absence of deity in the
structure is immaterial for the purpose. The
important aspect is that whether there is any
building as such and the deity is installed under
that building. Admittedly, there is a structure in
the form of a shed. The photograph of this
structure was shown to me by the petitioner’s
counsel as well as the Government Pleader. The
shed is erected a the place where the huge banian
tree was standing. The platform of the tree is
about 4 ft. height from the ground level. There are
no steps leading to the place where the deity is
installed. There is no compound wall surrounding
this place. It is difficult to hold that the place
where the deity is installed is a building. It could
only be said to be a structure and, therefore, in my
view, Manikandanal Sree Subramania temple
cannot be said to a temple as defined under the
Abkari Shops ( Disposal in Auction) Rules. I hasten
to add that it may be a temple for other purposes
and several persons might have been worshiping
this place and treating it as a temple in its full
WPC No.23828/07 5
sense. But, going by the definition in the Rules,
the deity could be said to have been installed in a
structure by the road side and such a temple is
specifically excluded from the purview of the
definition given under the Rules.”
7. Learned counsel for the third respondent invited my
attention to the contents of the report of the Advocate
Commissioner to contend that it cannot be treated as a temple
within the meaning of the Rule.
8. Per contra, learned counsel for the petitioner would
contend that the said decision is inapplicable to the facts of this
case. As small it may be, there is a building where public worship
is offered, it is contended. As regards the family welfare centre is
concerned, of course, learned counsel for the petitioners does not
dispute the fact that there is no statutory prohibition against the
location of toddy shop within 400 metres of the same.
9. Therefore the question to be considered is whether the
temple is a temple within the meaning of the Rule. Admittedly it
is located within 400 mtrs. going by the report of the
Commissioner. The report of the Advocate Commissioner would
show that it is a family temple. It is stated that there is no name
highlighted anywhere in the vicinity of the temple. It is located
WPC No.23828/07 6
about 44.15 metres away from the tar road. It is stated that in the
western side of the said temple there is a structure made of bricks
and cement. The foundation is black coloured and super
structure is yellow coloured and the door is blue coloured and the
roof is red in colour. It is stated that the deity could not be
witnessed as according to the petitioners for opening the doors it
requires the presence of a poojari. Going by the definition of
temple, a temple means a place of public religious worship where
the deity is installed under a building.
I find it difficult to accept the case of the petitioners even
assuming that there is a deity that it is installed in a building.
Ofcourse, the question of public worship is also a condition to be
satisfied. At any rate it is clear that there is no building as such in
which the deity could be said to be installed. Accordingly, I reject
the contention of the petitioners based on there being a temple
within the prohibited area of the proposed site in Ext.P8. If that
be so, I find that objection to Ext.P8 on that score cannot be
accepted. Therefore I reject the contentions of the petitioners
and dismiss the writ petition. However, I make it clear that this
will not prevent the petitioners seeking to invoke the power under
Section 54 of The Kerala Abkari Act or Rule 7(3) of The Kerala
WPC No.23828/07 7
Abkari Shops Disposal Rules 2002. Learned counsel for the
petitioners points out that in regard to the building in which the
toddy shop is going to be conducted vide Exhibit P8, permission
has been cancelled by the Panchayat. According to the third
respondent, it is not correct and there is permission. I make it
clear that dismissal of the writ petition should not be understood
as meaning that the third respondent can conduct the toddy shop
in the premises covered by Ext.P8 unless there is valid permission
granted by the local authority.
(K.M.JOSEPH, JUDGE)
sv.