## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR.JUSTICE N.NAGARESH**
**MONDAY, THE 5[TH] DAY OF AUGUST 2024 / 14TH SRAVANA, 1946**
**WP(C) NO. 16017 OF 2024**
## **PETITIONER:**
**BINOY B.R, AGED 48 YEARS S/O.RANADEEPAN, B.SADANAM, CHERTHALA SOUTH P.O, CHERTHALA, ALAPPUZHA DISTRICT, PIN – 688539**
**BY ADVS. M.G.KARTHIKEYAN NIREESH MATHEW**
## **RESPONDENTS:**
- **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, TAXES (A) DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001**
- **2 THE EXCISE COMMISSIONER, COMMISSIONARATE OF EXCISE, NANDAVANAM, VIKAS BHAVAN P.O, THIRUVANANTHAPURAM, PIN - 695033**
- **3 THE DEPUTY COMMISSIONER OF EXCISE, EXCISE DIVISION OFFICE, EXCISE COMPLEX, IRON BRIDGE P.O, ALAPPUZHA, PIN - 688011**
- **4 THE EXCISE CIRCLE INSPECTOR, EXCISE CIRCLE OFFICE, CHERTHALA, NEAR KALIKULAM WATER TANK, VARANAD P.O, ALAPPUZHA DISTRICT, PIN - 688539**
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- **5 THE DISTRICT COLLECTOR, ALAPPUZHA DISTRICT, COLLECTORATE, CIVIL STATION, ALAPPUZHA, PIN - 688001**
- **6 SOUMYA V.S, W/O.SHANKAR V.V, KUTTAMVEETIL, THIRUVIZHA, CHERTHALA, SOUTH (PART), ALAPPUZHA, PIN - 688539**
- **7 PUSPALATHA, W/O.KAMALASANAN, KONATTUCHIRAYIL, THIRUVIZHA, CHERTHALA, SOUTH (PART), ALAPPUZHA, PIN - 688539**
- **8 AMBILY, W/O.PRASANNAN, THEKKEVELI, THIRUVIZHA, CHERTHALA SOUTH P.O, ALAPPUZHA, PIN - 688539**
- **9 AMMINI, C/O.ANANDAN, THEKKEVELIYIL, THIRUVIZHA, CHERTHALA SOUTH P.O, ALAPPUZHA, PIN - 688539**
- **10 SHEELA P, W/O.DIVAKARAN, KANDATHIPARAMBIL, THIRUVIZHA, CHERTHALA SOUTH P.O, ALAPPUZHA, PIN – 688539**
**BY ADVS SMT.T.B.REMANI, R6 TO R10 SRI.S.GOPINATHAN, SR.GOVERNMENT PLEADER**
**THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.06.2024 AND THE COURT ON 05.08.2024 DELIVERED THE FOLLOWING:**
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## **N. NAGARESH, J.**
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## W.P.(C) No.16017 of 2024
````````````````````````````````````````````````````````````` _Dated this the 5[th] day of August, 2024_
## **J U D G M E N T**
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The petitioner, who is licensee for conducting all the toddy shops in Group No.XII of Cherthala Excise Range from March, 2020 onwards, has filed this writ petition seeking to quash Exts.P4 and P11 and to command respondents 1 to 5 to permit the petitioner to conduct Toddy Shop No.65 in Group No.XII of Cherthala Excise Range in the present building as per the licence.
2. The petitioner states that the licence held by him is valid upto 30.09.2024. TS No.65 was earlier conducted in a building owned by C.C. Prakash, who is the former licensee. Since his licence was cancelled, he did not give
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the building to the petitioner for conducting Toddy Shop No.65. The petitioner therefore found out another building within 50 metres from the old building. The said building is situated in an unobjectionable area. It is more than 400 metres away from objectionable institutions.
3. The petitioner states that respondents 6 to 10 filed W.P.(C) No.18551/2020 and this Court as per Ext.P2 judgment directed the Excise Commissioner to consider the representation submitted by them. In W.A. No.1275/2020 filed by the petitioner, a Division Bench of this Court directed the Excise Commissioner to pass orders after giving opportunity of hearing to the petitioner.
4. Pursuant to the direction, the Excise Commissioner passed Ext.P4 order on 02.02.2021 directing to shift the Toddy Shop No.65 to another unobjectionable building. The petitioner filed a revision petition against Ext.P4 order. The revisional authority, however, confirmed Ext.P4 order as per Ext.P6. The petitioner was not given an opportunity of hearing before passing Ext.P6 order. Ext.P6 is
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not a speaking order.
5. Ext.P6 order was set aside by this Court in W.P. (C) No.2168/2023 filed by the petitioner. This Court directed the 1[st] respondent to reconsider the matter, as per Ext.P7 judgment. The petitioner's revision was rejected again as per Ext.P8. Aggrieved by Ext.P8, the petitioner filed W.P.(C) No.16508/2023. This Court, by Ext.P9 judgment, set aside Ext.P8 order and directed the 1[st] respondent to reconsider Ext.P5 revision petition within two months. However, the petitioner was again served with Ext.P11 order dated 30.03.2024 of the 1[st] respondent upholding the order of the Excise Commissioner.
6. The counsel for the petitioner argued that Exts.P4 and P11 orders are illegal and Ext.P11 order was passed without appreciating the statements made in the revision petition. Respondents 1 and 2 failed to consider that the judgment in _**Vilasini v. State of Kerala** [2020 (2) KHC 612]_ is overruled by a Division Bench of this Court in _**Pavithran v.**_ . _**Laisy Santhosh** [2022 (1) KLT 526]_
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7. The counsel for the petitioner urged that establishment of a Toddy Shop in residential area is not illegal and the licensing of the Shop is as per Rules. When a licence is granted as per Rules, it has to be presumed that the issuance of licence is as per the procedure established by law. The Toddy Shop in question is licensed in a suitable building. It is in an unobjectionable area as per Rules. Respondents 1 to 5 are therefore compellable to permit the petitioner to conduct the Toddy Shop No.65 in the present building.
8. The 3[rd] respondent-Deputy Commissioner of Excise resisted the writ petition filing counter affidavit. The 3[rd] respondent submitted that Rule 7(3) of the Kerala Abkari Shops Disposal Rules, 2002 empowers the Excise Commissioner not only to relocate the Toddy Shop but also to close it down. The action taken by the Government and the Excise Commissioner is legal and valid. The decision is taken keeping in mind the welfare of the citizens. This is the
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fourth writ petition filed by the petitioner. If Toddy Shop is permitted in the building, it will definitely affect the right of privacy of residents nearby. The writ petition is therefore liable to be dismissed.
9. Respondents 6 to 10 filed counter affidavit. Respondents 6 to 10 stated that the building in which TS No.65 was earlier conducted by Sri. C. C. Prakash, was more than 100 metres away from the present building. The Toddy Shop will cause nuisance to the peaceful life of Smt. Chellamma and her family members. Smt. Chellamma has filed OS No.588/2020 in the Munsiff's Court, Cherthala seeking to set aside settlement deed No.1648/2018 of SRO, Cherthala by which the building in question was set apart to Sri. Vishnuraj, from whom the petitioner has taken the building.
10. Respondents 6 to 10 stated that they started to reside in the area in question since the year 1996. The distance between the Toddy Shop and their residence is between 5 to 15 metres only. The writ petition is therefore
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liable to be dismissed.
11. I have heard the learned counsel for the petitioner, the learned Government Pleader representing respondents 1 to 5 and the learned counsel appearing for respondents 6 to 10.
12. The petitioner is challenging Exts.P4 and P11 orders. Ext.P4 order has been passed by the Excise Commissioner on a complaint against functioning of TS No.65 in the building in question. When the complaint was received, the Excise Commissioner made enquiry. The Deputy Excise Commissioner, as per letter dated 07.10.2020, reported that the petitioner had been instructed to shift the location of the Shop considering the public complaints. A number of persons, mostly women living around the Toddy Shop location, have been consistently complaining about the infringement of privacy due to the location of the Shop. The Shop compound is situated within a distance of less than 10 metres from the house of two of the complainants. Houses of at least four or five
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complainants are situated around the Shop. The Excise Commissioner noted that the operation of the Shop generates a high level of noise and disturbance.
13. The petitioner challenged the decision multiple times and Ext.P11 order was passed by the Additional Chief Secretary on 30.03.2024 in revision. In Ext.P11, the Additional Chief Secretary has stated that the Government has considered the issue in detail and the decision to shift the Toddy Shop from the present place is not liable to be interfered with.
14. The counsel for the petitioner would argue that the judgment in _**Vilasini**_ (supra) is overruled by a Division Bench of this Court as per judgment in _**Pavithran**_ (supra). In the judgment in _**Pavithran**_ (supra), this Court has held that disruption of public order, peace and tranquility may at times leads to infringement of privacy rights. There are a number of residences where local lives in the immediate vicinity of the Toddy Shop. This has been found in Ext.P4. Those residents have filed complaints against the functioning of the
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Toddy Shop. The facts of the case would reveal that permitting the Toddy Shop to function there may result in breach in peace and tranquility. In the circumstances, I do not find any reason to interfere with Ext.P4 or Ext.P11 orders. The writ petition fails and it is therefore dismissed.
Sd/-
**N. NAGARESH, JUDGE**
aks/01.08.2024
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## **APPENDIX OF WP(C) 16017/2024**
## **PETITIONER'S EXHIBITS**
**Exhibit P1 TRUE PHOTOCOPY OF THE LICENSE OF TODDY SHOP NO.65 ISSUED ON 30.03.2024 BY THE 3RD RESPONDENT.**
- **Exhibit P2 TRUE PHOTOCOPY OF THE JUDGMENT DATED 09.09.2020 IN WP(C)NO.18551/2020.**
- **Exhibit P3 TRUE PHOTOCOPY OF THE JUDGMENT DATED 09.10.2020 IN WA.NO.1275/2020.**
- **Exhibit P4 TRUE PHOTOCOPY OF THE ORDER NO.EXC/2323/ 2020-XA7 DATED 02.02.2021 PASSED BY THE EXCISE COMMISSIONER.**
- **Exhibit P5 TRUE PHOTOCOPY OF THE REVISION PETITION ALONG WITH STAY PETITION FILED BY THE PETITIONER BEFORE THE SECRETARY, TAXES (A) DEPARTMENT, THIRUVANANTHAPURAM DATED 05.02.2021.**
- **Exhibit P6 TRUE PHOTOCOPY OF THE ORDER, GO(RT)NO. 999/2022-TAXES DATED 29.12.2022 PASSED BY THE UNDER SECRETARY OF THE 1ST RESPONDENT.**
**Exhibit P7 TRUE PHOTOCOPY OF THE JUDGMENT DATED 22.02.2023 IN WP(C)NO.2168/2023. Exhibit P8 TRUE PHOTOCOPY OF THE ORDER, GO(MS)NO. 309/2023/TAXES DATED 11.05.2023 PASSED BY THE 1ST RESPONDENT.**
**Exhibit P9 TRUE PHOTOCOPY OF THE JUDGMENT DATED 27.10.2023 IN WP(C)NO.16508/2023. Exhibit P10 TRUE PHOTOCOPY OF THE ARGUMENT DATED 05.03.2024 ALONG WITH ANNEXURES SUBMITTED BEFORE THE JOINT SECRETARY, TAXES (G) DEPARTMENT,**
**Exhibit P11 TRUE PHOTOCOPY OF THE ORDER, GO(MS)NO. 312/2024/TAXES DATED 30.03.2024 PASSED BY THE 1ST RESPONDENT.**
