IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 27630 of 2008(L)
1. PARAMESWARAN, S/O.RAMAN, VETTIYATTIL
... Petitioner
Vs
1. THE COMMISSIONER OF EXCISE,
... Respondent
2. THE ASSISTANT EXCISE COMMISSIONER,
3. THE CIRCLE INSPECTOR OF EXCISE,
For Petitioner :SRI.M.C.JOHN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice V.GIRI
Dated :19/03/2009
O R D E R
V.GIRI, J.
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W.P.(C)No.27630 of 2008
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Dated this the 19th day of March, 2009.
JUDGMENT
The petitioner was a licensee of Toddy Shop
No.89/08-09 (Nellayi Group) of Irinjalakuda Range for the year
2008-09. According to the petitioner, he has been a licensee
since 2002.
2. It is common case that the said shop was in a
building bearing panchayat assessment No.V/54 (There is a
dispute as to whether it is V/54 or V/154. It may not be very
material, in the circumstances of the case.) of the
Parapookkara Panchayat, owned by one Jigimon. For the year
2001-02, the toddy shop was licensed in the same building on
the strength of G.O.(MS)No.70/2000/TD dated 19.04.2000
which permitted shops bid in auction in 2000-01 to be
continued in the same premises, wherein it was being
conducted during the previous year, notwithstanding the
distance rule which prohibited location of toddy shops and
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liquor shops within 200 meters from Educational Institution or
a place of religious worship, SC/ST Colonies and burial
ground. The protection so afforded to the existing shops as
per the Government Order mentioned above was made
statutory as per the proviso to Rule 7(2) of the Kerala Abkari
Shops Disposal Rules, 2002, wherein the shops which were
located at a place during 2001-02 were permitted to be
continued to be located in the same place, notwithstanding
the distance rule. It is, therefore, that T.S.No.89/08-09
continued to function in Building No.V/54 (or V/154 as the
case may be) of the Parapookkara Panchayat till 2008-09.
3. While so, the building where the toddy shop was
functioning was acquired for the National Highway. In that
circumstance, the petitioner applied for shifting of the shop
to another place about 25 metres away, but comprised in the
same survey number and sub-division. The application was
processed and by Ext.P3, it was recommended by the Circle
Inspector of Excise. The premises, to which the shop was
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sought to be shifted, was originally an unnumbered building.
Later, after obtaining a building permit, a building was
constructed and it was numbered and tax was remitted as per
Ext.P6. It is to this building that shifting was sought.
4. In the meanwhile, the 4th respondent, a nearby
resident filed objection. His objections were directed to be
considered as per Ext.P6(a) judgment. A hearing was
proposed under Ext.P6(b). The petitioner had approached
this court in W.P.(C)No.24948/08 praying for a direction to
the Excise Commissioner to take a decision on his application
for shifting. Ultimately, the commissioner, by Ext.P8
dismissed the petitioner’s application. In the meanwhile, the
Assistant Commissioner, pursuant to Ext.P6(a) judgment,
passed an order vide Ext.P9, on the representation filed by
the 4th respondent noting that the licensee has already been
directed to find alternate unobjectionable site.
5. Two reasons are given in Ext.P8 to reject the
petitioner’s application. Firstly that the building to which the
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shop was sought to be shifted is an unnumbered one.
Secondly, the protection earlier allowed for continuance of
toddy shop in the premises that were located during the year
2000-01 was confined to the year 2000-01 and that no such
relaxation was given in the subsequent years.
6. A statement has been filed on behalf of the 3rd
respondent and a counter affidavit has been filed by the 4th
respondent.
7. Insofar as the first objection raised in Ext.P8
that the building to which the shop was sought to be shifted is
an unnumbered building is concerned, the objection really
does not survive, because a number has been assigned and it
is evidenced by Ext.P6. The second objection is that the
protection for continuance of toddy shop in the premises
where it was located during the year 2000-01 was confined to
the year 2000-01 and not for the subsequent years.
8. Firstly the shifting of the shop was sought only
because the premises where the shop was located earlier has
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been acquired for the National Highway. Secondly, the shop
to which shifting is sought is a place about just 25 metres
away and this has not been refuted in Ext.P8 order passed by
the Excise Commissioner. Thirdly, going by the statement
filed by the 3rd respondent, the benefit that was granted
under the earlier Government Order, G.O.(MS)No.70/2000/TD
dated 19.04.2000 in respect of toddy shops licensed during
the year 2000-01 from the application of the distance rule, in
a different form has been incorporated in the statute as per
the proviso to Rule 7(2) of the Rules, 2002 and it is because of
this that the toddy shop was continued to be licensed in the
same premises during 2008-09. Paragraph 3 of the statement
filed on behalf of the 3rd respondent is relevant. Shifting has
been necessitated on account of the acquisition of the land
for the National Highway and the shifting is sought to be done
to another building, within a radius of 50 metres, which
condition is considered as relevant, as stated in the earlier
Government Order, going by paragraph 2 of the statement of
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the 3rd respondent. I am, therefore, of the view that the
second objection contained in Ext.P8 is also untenable. I also
take note of the contention of the petitioner that shifting of
the shop to the new premises which is 25 metres away from
the earlier premises has not resulted in abridging the distance
between the shop and educational institution or a place of
religious worship. Further, the actual objection as regards
the location of the present premises is not discernible either
from Ext.P8 or the statement of the 3rd respondent.
9. Learned counsel for the 4th respondent
submitted that the petitioner has no specific case that there
is no other unobjectionable site in the locality, to which the
shop could be shifted and therefore, the proviso to Rule 7(2)
of the Disposal Rules is not applicable to the present case. I
am not impressed with this submission. Shifting has been
necessitated on account of the acquisition of the land where
the shop was being run all these days. Such shifting itself is
to another premises within 25 metres of the original site.
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Authorities have not found the fact that the premises to
which the shop is now sought to be shifted is more
objectionable than the original site. It is not the case of the
4th respondent that the distance between any one of the
institutions mentioned in Rule 7(2) of the Rules and the
premises where the toddy shop is being conducted has been
further abridged on account of the shifting of the shop. In
fact, the precise reason why the site to which the shop was
sought to be shifted is objectionable in terms of the Rules is
not discernible even from the counter affidavit of the 4th
respondent.
For all these reasons, I am of the view that Exts.P8
and P9 are unsustainable. Accordingly, the writ petition is
allowed. Exts.P8 and P9 are quashed. It is submitted by the
counsel for the petitioner that, pursuant to an order passed
by this court, the licence has already been issued and the
judgment was later recalled on a motion made by the 4th
respondent. Be that as it may, as the licence has already
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been issued in respect of the new premises, that shall be
permitted to be operated, consequent upon the declaration
made in this judgment.
Sd/-
(V.GIRI)
JUDGE
sk/
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