G. Anil Kumar Chempakasseril v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** ## **MONDAY, THE 10TH DAY OF SEPTEMBER 2012/19TH BHADRA 1934** **WP(C).No. 9832 of 2012 (D) --------------------------** ## **PETITIONER :** ## **--------------------** **G.ANIL KUMAR CHEMPAKASSERIL, KESAVAPURAM, KARUNAGAPPALLY P.O. KOLLAM.** ## **BY ADV. SRI. J. OMPRAKASH** ## **RESPONDENT(S): --------------------------** **1. THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT TAXES (A) DEPARTMENT, SECRETARIAT** - **THIRUVANANTHAPURAM-695 001.** **2. THE COMMISSIONER OF EXCISE,** - **NANDAVANAM, THIRUVANANTHAPURAM-33.** **3. THE DISTRICT COLLECTOR, CUTCHERY P.O., KOLLAM, PIN-691 013.** **4. THE DEPUTY COMMISSIONER OF EXCISE, EXCISE COMPLEX, CHINNAKKADA, KOLLAM** - **PIN-691 001.** **5. THE KERALA STATE BEVERAGES MANUFACTURING AND** **MARKETING CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR SASTHAMANGALAM P.O., THIRUVANANTHAPURAM-12.** **6. THE CIRCLE INSPECTOR OF EXCISE,** - **KARUNAGAPPALLY, KARUNAGAPPALLY P.O., PIN-690 518.** **7. PAVITHRAN,** - **S/O. GOPALAN, VALIYAVEETTIL PADA SOUTH KARUNAGAPPALLY P.O., PIN-690 518.** **R1 TO R4 & R6 BY GOVT. PLEADER SRI. R. PADMARAJ R5 BY ADV. SRI.C.S.AJITH PRAKASH, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...2/-** ## **WP(C).No. 9832 of 2012 (D)** ## **APPENDIX** ## **PETITIONERS' EXHIBITS :** **EXHIBIT P1: COPY OF THE LETTER OF THE SECRETARY TO GOVERNMENT DATED 15.3.2012.** - **EXHIBIT P2: COPY OF THE REPRESENTATION DATED 7.4.2012 SUBMITTED BEFORE THE 3RD RESPONDENT.** - **EXHIBIT P3: COPY OF THE REPRESENTATION OF THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 7.4.2012.** - **EXHIBIT P4: COPY OF THE REPRESENTATION DATED 7.4.2012 SUBMITTED BEFORE THE 3RD RESPONDENT.** - **EXHIBIT P5: NIL** - **EXHIBIT P6: COPY OF THE STATEMENT GIVEN BY SRI. T.R. SANKARA PILLAI DATED 28-1-2012.** - **EXHIBIT P7: COPY OF THE LETTER ISSUED BY THE STATE PUBLIC INFORMATION OFFICER, EXCISE CIRCLE OFFICE, KARUNAGAPPALLY.** - **EXHIBIT P8: COPY OF THE NOTICE PUBLISHED FOR THE 61ST “SREEMATH BHAGAVATHA SAPTHAHA YAJNAM” OF THE KANNETTIL SREE DHANWANTHARI TEMPLE.** - **EXHIBIT P9: COPY OF THE AFFIDAVIT OF SRI. SURENDRAN, S/O. KUNJURAMAN, KANNETHARAYIL DATED 22-6-2012.** - **EXHIBIT P10: COPY OF THE CERTIFICATE DATED 5-7-2012 ISSUED BY THE CONVENER.** - **EXHIBIT P11: COPY OF THE LETTER OF THE STATE PUBLIC INFORMATION OFFICER, EXCISE DIVISION OFFICE, KOLLAM DATED 17-5-2012 ISSUED TO ADVOCATE SRI. V.R. PRAMOD.** - **EXHIBIT P12: PHOTOGRAPH OF THE TEMPLE WITH THE BOARD.** - **EXHIBIT P13: PHOTOGRAPH OF THE INSIDE OF THE TEMPLE COMPOUND AT THE TIME OF THE “EZHUNNALLATH” OF THE DEVI.** - **EXHIBIT P14: PHOTOGRAPH OF THE INSIDE OF THE TEMPLE COMPOUND DURING THE TIME OF THE “PROCESSION”.** - **EXHIBIT P15: COPY OF THE NOTICE ISSUED BY THE KANNETTIL SREE DHANWANTHARI KESHTHRA.** - **EXHIBIT P16: PHOTOGRAPH SHOWING THE COMPOUND WALLS OF THE OTHER SIDE OF THE TEMPLE.** **(Contd...)** ## **WP(C).No. 9832 of 2012 (D)** **EXHIBIT P17: PHOTOGRAPH SHOWING THE INSIDE OF THE COMPOUND WALL OF THE TEMPLE.** ## **RESPONDENTS' EXHIBITS :** **EXT.R5(a) COPY OF THE GOVERNMENT LETTER NO. 23582/A1/2011/TD DATED 14-11-2011.** **//TRUE COPY//** **P.S. TO JUDGE** **Mn** ## **C.R.** ## **THOTTATHIL B.RADHAKRISHNAN & A.V.RAMAKRISHNA PILLAI, JJ.** ----------------------------------W.P(C).No.9832 of 2012 -----------------------------------Dated this the 10[th] day of September, 2012 ## **JUDGMENT** ## Thottathil B.Radhakrishnan,J. - 1.An outlet of the Kerala State Beverages (M&M) Corporation Ltd. for Indian Made Foreign Liquor was being run in a building abutting a National Highway. That was decided to be shifted to another building, aside a road which was the old National Highway. According to the writ petitioner, that proposed premises is within the prohibited distance from Kannatti Sree Dhanwanthari Moorthi temple, in terms of the Foreign Liquor Rules, 1953, for short, 'FL Rules'. - 2.There is no dispute between the vendor/Corporation and the petitioner regarding the distance. The defense of the vendor/Corporation is that the so-called temple is not one which falls within the purview of the proviso to Rule 13(1)(d) of the FL Rules. Rule 13(1) defines a temple to “mean” a WPC.9832/12 2 place or public, religious worship by Hindus where the deity is installed under a building and includes a mutt also”. The proviso to that Rule says that any structure on the roadside pavement or in a compound of a private building with or without deity shall not be considered as a Temple, Church or Mosque”. 3.Before the learned single Judge, the petitioner relied on the decision the Division Bench of this Court in **Sudhesh Kumar** v. **Commissioner of Excise** [2010 (4) KLT 673], which dealt with Rule 2(m) and the proviso thereof in the Abkari Shops Disposal Rules, 2002 (Kerala), for short, the 'Disposal Rules', which is in pari materia with the aforesaid definition of temple in Rule 13(1) of the FL Rules and the proviso thereof. Dilating on the terms of the proviso, the learned single Judge felt it necessary that it be considered as to whether the decision of the Division Bench in **Sudheesh Kumar** requires re-consideration. Hence, this reference to the Division Bench. WPC.9832/12 3 - 4.Heard learned counsel for the petitioner, the learned counsel for the vendor/Corporation and learned Government Pleader, in extenso, on the different aspects of the matter, on facts and on the interpretation of the rule in question. 5.Though the learned counsel for the petitioner referred to the decisions of the larger Bench in **Babu Premarajan** v. **Superintendent of Police** [2000 (3) KLT 177 (F.B.)] and **Peter** v. **Sara** [2006 (4) KLT 219 (F.B.)] to insist that the order of reference ought not to have been made and that the ratio of **Sudheesh Kumar** ought to have been followed, we are of the view that the learned single Judge was well within authority and jurisdiction under Section 3 of the Kerala High Court Act, 1958, to make an order of reference since that order states the reasons which, in the view of the learned Judge, tend to indicate that **Sudheesh Kumar** may require re-consideration. Learned Judge has attempted to point out that **Sudheesh Kumar** has been decided without appropriately considering the proviso to Rule 2(m) of the WPC.9832/12 4 Disposal Rules, which is in pari materia with Rule 13(1) of the FL Rules and the proviso thereof. We, therefore, overrule the plea impeaching the order of reference. 6.In its substance, **Sudheesh Kumar** was rendered holding that the concept of temple in terms of Rule 2(m) of the Disposal Rules has to be understood as encompassing all places of religious worship by Hindus, where public have access for prayers. Therefore, no matter whether the temple stands on a private land, or not; if public have access for prayers and religious worship by Hindus, that premises becomes a temple for the purpose of Rule 13(1). Such elucidation of the law, including the provisions in the Disposal Rules, was made in the context of kavus which are adored as part of religious practices among Hindus. It needs to be noted that for a temple to become a public temple or a place of public worship by Hindus, it is not necessary that it should stand in a public place and not in a private property. This position is well settled by a catenate WPC.9832/12 5 of decisions from the three zones of judicial precedents; be it from the Madras High Court; the Allahabad High Court or the Culcutta High Court. This would be clearly indicated by the precedents rendered by those courts, which at one time, where refereed to repeatedly on issues relating to Hindu law and particularly in relation to temples and religious endowments. We confess our inability to reach at those precedents and quote them, for want of assistance at arguments. 7.The issue that is focused for consideration is the interpretation of the proviso to Rule 13(1) of the FL Rules, which is in pari materia with the proviso to Rule 2(m)of the Disposal Rules. The specific phrase used is “in a compound of a private building”. It is not as if the legislature or its delegate, in making the subordinate legislation, was unaware of the usage of private property. Therefore, the use of the term “in a compound of a private building” requires emphasis to be given to the existence of a private WPC.9832/12 6 building. What is stated as “compound of a private building” has, necessarily, to be understood as limited to the extent of land on which either such private building stands, or as is immediately necessary, as its appurtenant for its proper use. The concept of “land on which a building stands”, as understood in the property laws, necessarily adds at understanding the scope of the term “in a compound of a private building” as stated in the proviso. So much so, the provision “in a compound of a private building”, “with or without deity” has to be understood at par with “any structure on the roadside pavement”. The object sought to be achieved by that proviso is that there can be no claim as to applicability of the distance rule on the basis of any structure on the roadside pavement or on the basis of any structure which is intricately connected with the user of a private building and its immediate compound. - 8.Adverting to the case in hand; the 5[th] respondent Corporation says in its counter affidavit that the structure in WPC.9832/12 7 question known as Kannatti Sree Dhanwanthari Moorthi temple is only part of an institution where traditional form of ayurvedic treatment is administered. The temple in the instant case is a private temple belonging to Shri Kannan and others who run an ayurvedic treatment centre under the name Kannan Ayurvedic Vydyasala, it is contended. Now, reverting to the counter affidavit filed on behalf of the Commissioner of Excise and others, it can be seen that the kudumba kshethram (family temple) by name Kannatti Sree Dhanwanthari Moorthi kshethram is situated 56 metres away from the proposed building and the said kshethram is only a kudumba kshethram in which the members of the family of Sri.T.R.Sankarapillai and his wife are interested. The kudumba kshethram is wholly situated in the property of the said Sri.T.R.Sankarapillai, it is stated. With these materials on record and going by the photographs produced along with the writ petition, we cannot but hold that the temple in question is not one that would fall within the proviso to Rule 13(1)(b) of the FL Rules and it cannot be WPC.9832/12 8 treated merely as a structure in a compound of a private building and therefore, the writ petition is entitled to succeed. In the result, this writ petition is allowed ordering the respondents not to have any foreign liquor shop belonging to the 4[th] respondent within the distance of 200 metres from the aforesaid Kannatti Sree Dhanwanthari Moorthi temple. We are told by the learned counsel for the Corporation that the outlet has already commenced functioning in the proposed building. Let that be shifted from there without fail within a period of 45 days from the date of receipt of a copy of this judgment. Writ petition ordered accordingly. No costs. Sd/- THOTTATHIL B.RADHAKRISHNAN Judge. Sd/- A.V.RAMAKRISHNA PILLAI Judge. kkb.13/9.