IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1965 of 2008()
1. SHAILENDRAN, S/O. KUNJAPPI,
... Petitioner
Vs
1. SARATHCHANDRAN, SATHYALATHIL,
... Respondent
2. HARILAL KRISHNAN, THAYYIL, KANDASSERIL,
3. GEORGE C.VARGHESE, CHENNOTH ,
4. R.SHIBU, CHELLIKANDATHIL,
5. KARUNAKARAN, UNNI NIVAS, VARANAD P.O.,
6. THE STATE OF KERALA, REPRESENTED BY
7. THE COMMISSIONER OF EXCISE. EXCISE
8. THE ASSISTANT EXCISE COMMISSIONER,
For Petitioner :SRI.K.RAMAKUMAR (SR.)
For Respondent :SRI.V.CHITAMBARESH (SR.)
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :23/03/2009
O R D E R
K. BALAKRISHNAN NAIR &
M.L. JOSEPH FRANCIS, JJ.
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W.A.No. 1965 of 2008
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Dated this the 23rd day of March, 2009
JUDGMENT
Balakrishnan Nair, J.
The 4th respondent in the writ petition is the appellant.
Respondents 1 to 5 are the writ petitioners.
2. The brief facts of the case are the following. The writ
petitioners were joint licensees of T.S.No.13 of Group No.V of
Kuthiyathode Excise Range. Except for the year 2002 – 2003,
the toddy shop was licensed and it was housed in the same
building all along. The appellant and others moved various
authorities claiming that the shop is located in the middle of a
colony, inhabited by members of Scheduled Caste, and therefore
it should be closed down, being one located within the prohibited
distance, provided under Rule 7 of the Kerala Abkari Shops
Disposal Rules, 2002. There were several rounds of litigations
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concerning the above dispute between the persons represented by the
appellants and the licensees of the aforementioned shop.
3. Finally, the Government decided to modify the schedule of
the shop, by adding some area of the neighbouring shop, so that there
will be some non-objectionable site, to which, if found necessary, the
toddy shop could be shifted. This was done by the Government as per
G.O.(P) No.58/2008/TD dated 19.3.2008, published as SRO No. 291
of 2008. In view of the said notification, the Assistant Excise
Commissioner issued Ext.P9 order dated 4.4.2008, directing the writ
petitioners to shift the toddy shop to another non-objectionable site
within the newly extended schedule limit. The said order was passed
taking into account the direction of this Court in Writ Petition No.
27221 of 2007. Challenging Ext.P9, the writ petition was filed.
4. According to the writ petitioners, even after modification of
the schedule of the shop, adding additional area, still there is no other
non-objectionable site available for shifting the shop. In support of
that submission, they placed reliance on Ext.P12 communication issued
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by the Circle Inspector of Excise, Cherthala dated 7.4.2008. The
learned Single Judge, after hearing both sides, allowed the writ petition
and quashed Ext.P9. The contentions of the writ petitioners that no
non-objectionable site was available in the area of the shop, even after
its re-scheduling, was upheld by the learned Single Judge. Aggrieved
by the said judgment, the present appeal was filed.
5. The learned counsel for the appellant firstly submitted that
since there was an alternative remedy against Ext.P9, this Court should
not have entertained the writ petition. Secondly, it is submitted that
there are non-objectionable sites available in the area of the shop and
the communication of the Circle Inspector of Excise to the contrary, is
not conclusive. At any rate, the learned Judge should have remitted the
matter to the competent authority for fresh decision in accordance with
law. Therefore, the appellant prayed for reversing the judgment of the
learned Single Judge and remitting the matter to the Assistant Excise
Commissioner.
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6. We heard the learned counsel for the appellant and
respondents 1 to 5/writ petitioners. Once the learned Judge has
entertained the Writ Petition and rendered a decision on merits, it is
not proper for us to relegate the parties to the statutory authorities
7. If there is any area, where the toddy shop can be located
without doing violence to Rule 7 of the Abkari Shops Disposal Rules,
2002, the appellant can point out the same to the 8th respondent,
Assistant Excise Commissioner. In that event, the said respondent
shall look into the same and if the same is found correct, shall take
appropriate further action for relocating the shop. But such a decision
can be taken only after hearing both sides. If there is no non-
objectionable site available in the schedule of the shop, the appellant is
free to move the Government, again to modify the schedule of the
shop, so that some area with non-objectionable sites is also included
in the schedule.
8. The Writ Appeal is disposed of as above. If the appellant
moves the Assistant Excise Commissioner with sufficient materials,
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the said officer shall take a decision on the site pointed out by him, as
expeditiously as possible, preferably before the issue of the new
licence for the next Abkari year.
(K. BALAKRISHNAN NAIR)
Judge
(M.L. JOSEPH FRANCIS)
Judge
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