P.J. Sebastian and Santhakumaran K v State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ``` FRIDAY, THE 4[TH] DAY OF NOVEMBER 2022 / 13TH KARTHIKA, 1944 ``` ## **`WP(C) NO. 34459 OF 2022`** ## **`PETITIONERS:`** ``` 1P.J.SEBASTIAN AGED 67 YEARS S/O.JOSEPH, PUTHUSSERY HOUSE, M.G.KAVU, KILANNUR, THRISSUR, PIN-680 581. 2SANTHAKUMARAN K, AGED 75 YEARS TAPASYA PADINJAREKANDATH HOUSE, VELEPPAYA ROAD, MULANGUNNATHUKAVU P.O, KILANNUR, THRISSUR, PIN-680581. ``` ``` BY ADV SEBIN SEBASTIAN ``` ## **`RESPONDENTS:`** - `1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 033.` - `2 THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, EXCISE HEAD QUARTERS, NANDAVANAM, THIRUVANANTHAPURAM-695 033.` - `3 THE DEPUTY COMMISSIONER OF EXCISE, EXCISE DIVISION OFFICE, AYYANTHOLE, THRISSUR, PIN-680003.` - `4 THE CIRCLE INSPECTOR OF EXCISE, CHEMBUKKAVU P.O, THRISSUR, PIN-680 005.` - `5 THE MULAGUNNATHUKAVU GRAMA PANCHAYATH, MULANGUNNATHUKAVU, KILANNUR, THRISSUR DISTRICT, PIN-680581, REPRESENTED BY ITS SECRETARY.` ``` WP(C) NO. 34459 OF 2022 ``` ``` 2 ``` - `6 KERALA STATE BEVERAGES (MANUFACTURING & MARKETING) CORPORATION LTD, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR, BEVCO TOWER, VIKAS BHAVAN, PALAYAM P.O, THIRUVANANTHAPURAM-695 033.` ``` 7THE MANAGER, KERALA STATE BEVERAGES (MANUFACTURING & MARKETING) CORPORATION LTD, FL-1 SHOP NO.8013, VELAPPAYA ROAD DESOM, KILANNUR VILLAGE, THRISSUR DISTRICT, PIN-680596. ``` ``` BY ADVS. SHEEJO CHACKO SHEENAMOL VARGHESE ``` ``` SRI T NAVEEN SC GP SRI GIMMY GEORGE ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 34459 OF 2022 ``` ``` 3 ``` ## **JUDGMENT** Petitioners are senior citizens and the first petitioner being one side paralyzed, residing in Mulangunnathukavu P.O., Kilannur, Thrissur, is aggrieved of the functioning of a foreign liquor shop No. 8013 (License No. TSR 26) in the locality/residences have approached this court with the following prayers:- i) declare that the FL-1 shop No. 8013 (License No.TSR-26) conducting by the Kerala State Beverages Corporation in Building Nos. 82A and 82B in Ward No. II of Mulangunnathukavu Grama Panchaytah in Velappaya Road Desom, Kilannur Village, Thrissur District is illegal and the shop is liable to be shifted to an unobjectionable remoite location, where it does not affect the peaceful life of the people. ii) issue a writ of mandamus or other appropriate writ, order or direction commanding the 5th respondent to issue a stop memo against the functioning of FL-1 shop No. 8013 (License No.TSR-26) conducting by the Kerala State Beverages Corporation in Building Nos. 82A and 82B in Ward No. II of Mulangunnathukavu Grama Panchayath in Velappaya Road Desom, Kilannur ``` WP(C) NO. 34459 OF 2022 ``` ``` 4 ``` Village, Thrissur District as it is functioning without obtaining a D & O license; iii) issue a writ of mandamus or other appropriate writ, order or direction commanding the respondents 2 and 3 to consider and pass orders on Exhibit-P2 at the earliest; 2. First petitioner is a person with one side paralysis and is living alone. Second petitioner is residing along with family members in the aforementioned address. The case of the petitioners is that a foreign liquor shop No. 8013 (License No. TSR 26) which was functioning in a building in the Thrissur Corporation has been now shifted to building Nos. 82A and 82B in ward No. 2 of Mulangunnathukavu Grama Panchaytah in Velappaya Road Desom, Kilannur Village, Thrissur District as ordered by the third respondent, Deputy Commissioner of Excise, Excise Division, Ayyanthole, Thrissur, which is very close to the residence of the petitioners and without obtaining a D & O License from the 5[th] respondent - Mulangunnathukavu Grama Panchayath, Thrissur. Petitioners along with 103 other local residents had filed mass petition dated 01.09.2022, Ext.P1, ``` WP(C) NO. 34459 OF 2022 ``` ``` 5 ``` before the 3[rd] respondent - Deputy Commissioner of Excise which was not considered by the 3[rd] respondent and in disregard to such application petition, ordered the shifting of the liquor shop. The functioning of the foreign liquor shop has adversely affected the habitation and life of the petitioners and other local residents. It is also submitted that the foreign liquor shop has dilapidated the peaceful life of the residents due to the revelry of the drunkards and aggrieved by the same, the petitioners again submitted a detailed representation Ext.P2 dated 25.10.2022 before the respondents raising their grievances and to shift the above said foreign liquor shop to some unobjectionable remote locations where it would not affect the peaceful life of the residents. 3. Learned counsel for the petitioners submitted that the functioning of the foreign liquor shop without obtaining a D & O License from the 5[th] respondent - Mulangunnathukavu Grama Panchayath is violative of section 232 of the Kerala Panchayath Raj Act. Licence of the liquor shop in an objectionable place is liable to cancelled as per Rule 39 of the Foreign Liquor Rules. In ``` WP(C) NO. 34459 OF 2022 ``` ``` 6 ``` support of the aforementioned contentions has sought reliance on _**Ganapathy Iyer and Others**_ v. _**State of Kerala and Others**_ [2018 (2) KHC 698] wherein this Hon'ble Court held that under the provisions of Disposal Rules and that under Foreign Liquor Rules, the Excise Commissioner in the interest of public peace or morality or on grounds of expediency, can order closure of a foreign liquor shop. It was further held that "if as a matter of fact the functioning of the FL1 shop of the Beverages Corporation is causing threat to public peace and morality and also inconvenience to the residents in the locality, the said FL1 shop is liable to be closed down under the relevant provisions of the Disposal Rules and also the Foreign Liquor Rules". Further reliance has been led to _**Justice K.S. Puttaswamy (Retd)**_ v **. Union Of India** wherein a 9 judge of the Supreme Court held that the right to privacy is protected as a fundamental constitutional right under Articles 14, 19 and 21 of the Constitution of India. The Apex Court observed that "privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the ``` WP(C) NO. 34459 OF 2022 ``` ``` 7 ``` Constitution. Elements of privacy also arise in varying contexts from the other facets of freedom and dignity recognized and guaranteed by the fundamental rights contained in part III". It further asserts that has both positive and negative contend. The negative content restrains the state from committing an intrusion upon the life and personal liberty of a citizen. It positive contend imposes an obligation on the state to take all necessary measures to protect the privacy of the individual". 5. I have heard the learned counsel for the parties and appraised the paper book and of the view that the grievance of the petitioner with regard to the first and second prayers in the writ petition are matters pertaining to public interest, which indeed, cannot be entertained by this court. Without expressing any opinion on the merits of the matter, I deem it appropriate to dispose of the writ petition by issuing directions to the respondents to take a call on the representation Ext.P2 dated 25.10.2022 in accordance with law, Rules and regulations and any other provisions which the parties deem it appropriate to cite and rely, after affording an ``` WP(C) NO. 34459 OF 2022 ``` ``` 8 ``` opportunity of hearing to the petitioners or any representatives of the petitioners and the license holder much less excise people within a period of 15 days from the date of receipt of a certified copy of this judgment. **Sd/AMIT RAWAL JUDGE** nak ``` 9 ``` ## **`WP(C) NO. 34459 OF 2022`** ## **`APPENDIX OF WP(C) 34459/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1TRUE PHOTO COPY OF THE REPRESENTATION DATED 01.09.2022. Exhibit P1 AENGLISH TRANSLATION OF EXT.P1. Exhibit P2TRUE PHOTO COPY OF THE REPRESENTATION DATED 25.10.2022 SUBMITTED TO THE RESPONDENTS. ```