IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 26006 of 2009(S)
1. E.K.ARAVINDAN,
... Petitioner
Vs
1. STATE OF KERALA, REP,.BY THE SECRETARY
... Respondent
2. THE EXCISE COMMISSIONER,
3. DEPUTY EXCISE COMMISSIONER,
4. KERALA STATE BEVERAGE CORPORATION,
5. THE PALLIPPURAM GRAMA PANCHAYAT,
For Petitioner :SRI.A.G.ADITYA SHENOY
For Respondent : No Appearance
The Hon'ble the Chief Justice MR.S.R.BANNURMATH
The Hon'ble MR. Justice A.K.BASHEER
Dated :29/10/2009
O R D E R
S.R.Bannurmath, C.J. & A.K. Basheer, J.
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W.P.(C) No.26006 of 2009
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Dated this the 29th day of October, 2009
JUDGMENT
A.K. Basheer, J.
Petitioner who claims to be a permanent resident of
Ward No.X in Pallipuram Grama Panchayat, has filed this writ
petition impugning Ext.P5 order passed by the Commissioner of
Excise. By the impugned order the Commissioner has overruled
all the objections raised by the petitioner against the FL1 retail
outlet being run by the Kerala State Beverages Corporation. The
Commissioner held that there was no merit or substance in any of
the allegations made by the petitioner.
2. The prayer in this writ petition filed under Article
226 of the Constitution of India is to issue a writ of certiorari to
quash Ext.P5 order passed by the Commissioner. There is a
further prayer to issue a writ of mandamus or such other
appropriate writ, order or direction to respondent No.2 to shift the
WP.(C) No.26006 of 2009.
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said foreign liquor retail outlet from the building in question.
3. It is contended by the learned senior counsel who
appears for the petitioner that the local residents are put to untold
hardship and inconvenience because of the nuisance caused by
the big crowd that throng the narrow road where the retail outlet
is functioning. Our attention has been invited to Ext.P7
photograph which, according to the learned senior counsel, is
telltale of the situation that prevails on the road in front of the
shop. He further points out that the local Panchayat has also got
reservations about the running of the outlet in the premises in
question. It is further contended by the learned senior counsel
that the Panchayat has not so far issued any licence to the
Corporation to run the outlet. It is the further contention of the
petitioner that a resident of the Panchayat has issued a consent
letter to whomsoever it may concern indicating that she is willing
to let out her building to the Corporation if it is prepared to shift
the shop to that alternate premises.
WP.(C) No.26006 of 2009.
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4. We have carefully perused the materials available
on record, especially Ext.P5 order passed by the Commissioner.
It may be noted that the Commissioner has passed the impugned
order in the light of the direction issued by this Court when the
petitioner along with another had filed W.P.(C) No.26866 of
2007 making the very same allegations. This Court after hearing
the parties had directed the Commissioner to reconsider the
matter and take a fresh decision after hearing all the parties
concerned.
5. Ext.P5 order reveals that the Commissioner has
adverted to the entire history of the litigation. He had heard the
petitioner and the Panchayat also. The Commissioner noticed
that two Bar attached hotels and a toddy shop were functioning
on the same road in close proximity. Indian Made Liquor Liquor
is being sold in sealed bottles. Customers are not allowed to open
the bottles and consume liquor in public anywhere near the shop
premises. Drinking at public places is prohibited under the
WP.(C) No.26006 of 2009.
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Abkari Act also. It was only after hearing all the parties
concerned and considering the entire aspects of the matter, that
the Commissioner had passed the impugned order.
6. It may be true that the road in question is narrow;
and for that matter, all the roads in this particular area are narrow.
Similarly, if any obstruction is caused to the pedestrians or for
vehicular traffic in front of the shop on any particular day,
necessarily the help of the police authorities will be available.
The Panchayat can also intervene if the situation demands.
7. Having carefully perused the impugned order and
other materials available on record, we do not find any reason to
interfere with the order passed by the Commissioner.
8. Learned senior counsel submits that the Panchayat
has been inactive. We cannot accept this contention on the face
of it. If the petitioner feels that the Panchayat is inactive, he may
alert the Panchayat and request it to take appropriate action by
preferring a representation in this regard. If such a representation
WP.(C) No.26006 of 2009.
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is received, the Panchayat shall take appropriate action in the
matter in accordance with law as expeditiously as possible, at any
rate, within three months from the date of receipt of the same. If
the Panchayat proposes to take any action in the matter, on the
basis of the representation if any that may be received, it shall be
ensured that the petitioner and the Corporation/licensee are
afforded sufficient opportunity to be heard.
With the above observation/direction the writ
petition is closed.
S.R.Bannurmath,
Chief Justice
A.K. Basheer,
Judge
vns