R. PRAJESH v. State of Kerala & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 25TH DAY OF JULY 2018 / 3RD SRAVANA, 1940 WP(C).No. 15378 of 2018 ## PETITIONER R.PRAJESH, AGED 48 YEARS, S/O. RAGHAVAN, KURAMKADU HOUSE, NATTUKAL P.O, CHITTUR, PALAKKAD DISTRICT. BY ADVS.SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW ## RESPONDENTS 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY, TAXES(A) DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. THE EXCISE COMMISSIONER, - COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM-695 033. 3. THE DEPUTY COMMISSIONER OF EXCISE, - PALAKKAD 678 001. 4. THE CIRCLE INSPECTOR OF EXCISE, CHITTUR 678 101, PALAKKAD DISTRICT. R1-R4 BY GOVERNMENT PLEADER: SMT.MABLE.C.KURIEN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-07-2018, ALONG WITH W.P.(C)NOS.15472 AND 15474 OF 2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 15378 of 2018 (V) APPENDIX ## PETITIONER'S EXHIBITS EXHIBIT P1 PHOTOCOPY OF THE LICENSE IN RESPECT OF TODDY SHOP NO.31 ISSUED ON BY THE 3RD RESPONDENT. EXHIBIT P2 PHOTOCOPY OF THE ORDER NO.P5-8202/17 DATED 07-07-2017 PASSED BY THE 3RD RESPONDENT. EXHIBIT P3 PHOTOCOPY OF THE APPLICATION DATED 12-04-2018 SUBMITTED BEFORE THE 3RD RESPONDENT. EXHIBIT P4 PHOTOCOPY OF THE ORDER NO.P5-4751/18 DATED 02-05-2018 PASSED BY THE 3RD RESPONDENT. RESPONDENTS' EXHIBITS : NIL //TRUE COPY// P.A. TO JUDGE bpr ## **JUDGMENT** The petitioners in these writ petitions, who are licensees of toddy shops in Chittur/Palakkad Excise Range in Palakkad District have filed these writ petitions challenging the orders of the Deputy Commissioner of Excise, Palakkad, whereby their request to conduct the respective toddy shops in the buildings in which such shops were functioning till 31.03.2017 stands rejected. Since common issues are raised, the writ petitions are heard together and being disposed of by this common judgment. 2.1. W.P.(C)No.15378 of 2018:- The petitioner is a joint licensee of toddy shops in Group No.VIII in Chittur Excise Range in Palakkad Division. Out of 5 toddy shops in that group, Toddy Shop No.31 'Anjuvellakkadu' was closed on 31.03.2017, in view of the order of the Apex Court in **State of Tamil Nadu v.** **K. Balu [(2017) 2 SCC 281]** , wherein it was held that no shop for the sale of liquor shall be (i) visible from a national or state highway; (ii) directly accessible from a national or state highway and (iii) situated within a distance of 500 metres of the outer edge of W.P.(C)Nos.15378, 15472 :-2-: & 15474 of 2018 the national or state highway or of a service lane along the highway. Till 31.03.2017, the petitioner conducted Toddy Shop No.31 in building with Door No.IX/13 of Pattanchery Grama Panchayat. Though a 'Mariamman Kovil' is located 300 metres away from the said building, considering the fact that Toddy Shop No.31 was licensed at the same building from the year 2002, the petitioner was granted exemption under the 2[nd] proviso to sub-rule (2) of Rule 7 of the Kerala Abkari shops Disposal Rules, 2002 (for brevity, 'the Disposal Rules'). In view of the judgment of the Apex Court referred to supra, the petitioner submitted an application dated 06.07.2017 before the 3[rd] respondent Deputy Commissioner of Excise, Palakkad to conduct Toddy Shop No.31 in another building, i.e., building with Door No.X/579 of Pattanchery Grama Panchayat. The said application was allowed by Ext.P2 order dated 07.07.2017 of the 3[rd] respondent. Based on Ext.P2 order, the petitioner was permitted to conduct Toddy Shop No.31 in building with Door No.X/579 of Pattanchery Grama Panchayat. The Apex Court in **State of Tamil Nadu v. K. Balu [(2017) 6 SCC 715]** clarified that in the case of areas comprised in local bodies with a W.P.(C)Nos.15378, 15472 :-3-: & 15474 of 2018 population of 20,000 people or less, the distance of 500 metres shall stand reduced to 220 metres. The Apex Court in **State of Tamil Nadu v. K. Balu [(2017) 6 SCC 715]** clarified further that the use of the expression 'municipal areas' in **Arrive Safe Society of Chandigarh** **v. The Union Territory of Chandigarh [2017 (3) KLT 923]** does not prevent the State Governments from making that determination and from taking appropriate decisions consistent with the object of the orders passed by the Apex Court. The Apex Court left it open to individual licensees to submit their representations to the competent authorities in the State Government, if they are so advised, upon which appropriate decisions may be taken by the State Government. Based on the order of the Apex Court in **Arrive Safe Society's case (supra)** the State Government issued G.O.(Ms.)No.23/2018/TD dated 16.3.2018 granting relaxation from the distance rule. In view of the said Government order, the petitioner submitted Ext.P3 application dated 12.04.2018 before the 3[rd] respondent to shift Toddy Shop No.31 to the building in which it was functioning till 31.03.2017, i.e., building with Door No.IX/13 of Pattanchery Grama Panchayat. The said request was W.P.(C)Nos.15378, 15472 :-4-: & 15474 of 2018 rejected by the 3[rd] respondent in Ext.P4 order dated 02.05.2018. In Ext.P4 it has been stated that since 'Mariamman Kovil' is located within 400 metres of building with Door No.IX/13 of Pattanchery Grama Panchayat, the request to shift toddy shop to that building cannot be allowed, in view of the provisions under sub-rule (2) of Rule 7 of the Disposal Rules. In this writ petition, the petitioner has sought for a writ of certiorari to quash Ext.P4 order dated 02.05.2018 of the 3[rd] respondent and other consequential reliefs, including a declaration that he is entitled to conduct toddy shop No.31 in Group No.VIII of Chittur Excise Range in the building covered by Ext.P1 licence in which it was conducted from the year 2002 till 31.03.2017. The petitioner would contend that Ext.P4 order is one issued without considering the provisos to sub-rule (2) of Rule 7 of the Disposal Rules. 2.2. W.P.(C)No.15472 of 2018 The petitioners are the joint licensees of all toddy shops in Group No.III in Palakkad Excise Range in Palakkad Division. Out of 6 toddy shops in the said Group, Toddy Shop No.48 'Thannissery' was closed on 31.03.2017, in view of the order of the Apex Court in **State of Tamil Nadu v.** W.P.(C)Nos.15378, 15472 :-5-: & 15474 of 2018 **K.Balu (2017 (2) SCC 281)** . Till 31.03.2017, the petitioner conducted toddy shop No.48 in building with Door No.01/511 in Puthussery Village. Though a mosque is located 100 metres away from the said building, considering the fact that toddy shop No.48 was licensed at the same building from the year 2002, the petitioners were granted exemption under the second proviso to sub-rule (2) of Rule 7 of the Disposal Rules. In view of the judgment of the Apex Court referred to supra, the petitioners submitted an application in May, 2017 before the 3[rd] respondent Deputy Excise Commissioner to conduct Toddy Shop No.48 in another building, i.e., a shed put up in the property owned by one Sivasuthan in Sy.No.118/1, Block No.49 of Peruvembu Village. The said application was allowed by Ext.P2 order dated 23.05.2017 of the 3[rd] respondent. After the clarificatory orders issued by the Apex Court, the petitioners submitted an application dated 10.04.2018 before the 3[rd] respondent to shift toddy shop No.48 to the building in which it was functioning till 31.03.2017, i.e., building with Door No.01/511 of Peruvembu Grama Panchayat. Though the 4[th] respondent Circle Inspector of Excise made a favourble recommendation in Ext.P3 report dated W.P.(C)Nos.15378, 15472 :-6-: & 15474 of 2018 11.04.2018, the said request was rejected by the 3[rd] respondent by Ext.P4 order dated 02.05.2018, wherein it has been stated that since there is a mosque within 100 metres of the building with Door No.01/511 of Peruvembu Grama Panchayat, the request to shift toddy shop to that building cannot be allowed, in view of the provisions under sub-rule (2) of Rule 7 of the Disposal Rules. The petitioner would contend that Ext.P4 order is one issued without considering the provisos to subrule (2) of Rule 7 of the Disposal Rules. In this writ petition, the petitioners have sought for a writ of certiorari to quash Ext.P4 order dated 02.05.2018 of the 3[rd] respondent and other consequential reliefs, including a declaration that they are entitled to conduct toddy shop No.48 in Group No.III of Palakkad Excise Range in the building covered by Ext.P1 licence in which it was conducted from the year 2002 till 31.03.2017. 2.3. W.P.(C)No.15474 of 2018:- The petitioner is the licensees of all toddy shops in Group No.XVII in Chittur Excise Range in Palakkad Division. Out of 5 shops in the said group, Toddy Shop No.53 'Elippara' was closed on 31.03.2017 in view of the order of the W.P.(C)Nos.15378, 15472 :-7-: & 15474 of 2018 Apex Court in **State of Tamil Nadu v. K.Balu (2017 (2) SCC 281)** . Till 31.03.2017, the petitioner conducted toddy shop No.53 in building with door No.X/106 of Vadakarapathy Grama Panchayat. Though the burial ground of R.C.Church is located 280 metres away from the said building, considering the fact that Toddy Shop No.53 was licensed at the same building from the year 2002, the petitioner was granted exemption under the second proviso to sub-rule (2) of Rule 7 of the Disposal Rules. In view of the order of the Apex Court referred to supra, the petitioner submitted an application on 27.12.2017 before the 3[rd] respondent Deputy Excise Commissioner to conduct Toddy Shop No.53 in another building, i.e., building bearing Door No.1/505 in Vadakarappathy Grama Panchayat. The said application was allowed by Ext.P2 order dated 28.12.2017 of the 3[rd] respondent. According to the petitioner, though Toddy Shop No.53 was licensed in building bearing Door NO.1/505 in Vadakarappathy Grama Panchayat, by Ext.P2 order dated 28.12.2017 of the 3[rd] respondent, he could not conduct toddy shop in that building due to public protest. After the clarificatory orders issued by the Apex Court, the petitioner submitted Ext.P3 application W.P.(C)Nos.15378, 15472 :-8-: & 15474 of 2018 before the 3[rd] respondent to shift Toddy Shop No.53 to the building in which it was functioning till 31.03.2017, i.e., building bearing Door No.X/106 of Vadakarappathy Grama Panchayat. The said request was rejected by the 3[rd] respondent by Ext.P4 order dated 03.05.2018, wherein it has been stated that since the burial ground of R.C.Church is within a distance of 400 metres from building bearing Door No.X/106, the request to shift toddy shop to that building cannot be allowed, in view of the provisions under sub-rule (2) of Rule 7 of the Disposal Rules. The petitioner would contend that Ext.P4 order is one issued without considering the provisos to sub-rule (2) of Rule 7 of the Disposal Rules. In this writ petition, the petitioner has sought for a writ of certiorari to quash Ext.P4 order dated 02.05.2018 of the 3[rd] respondent and other consequential reliefs, including a declaration that he is entitled to conduct toddy shop No.53 in Group No.XVII of Chittur Excise Range in the building covered by Ext.P1 licence in which it was conducted from the year 2002 till 31.03.2017. 3. The reliefs sought for in these writ petitions are opposed by the respondents by filing statements. In W.P.(C)No.15378 of 2018 the 4[th] respondent Circle W.P.(C)Nos.15378, 15472 :-9-: & 15474 of 2018 Inspector of Excise has filed a statement dated 23.05.2018, wherein it has been stated that the request made by the petitioner to shift the toddy shop to the building in which it was functioning till 31.03.2017 does not satisfy the conditions stipulated in sub-rule (2) of Rule 7 of the Disposal Rules, since 'Mariamman Kovil' is located within 400 metres from the proposed site. Since the toddy shop has been shifted to another place from 07.07.2017 and it is functioning in that place, the petitioner is not entitled for any protection under sub-rule (2) of Rule 7 of the Disposal Rules. Similar contentions have been raised in the statement filed by the 3[rd] respondent Deputy Excise Commissioner dated 28.05.2018 in W.P.(C)NO.15472 of 2018, wherein it has been stated that the toddy shop has been shifted to another place from 23.05.2017 and that, the request to shift the toddy shop to the building in which it was functioning till 31.03.2017 does not satisfy the conditions stipulated in sub-rule (2) of Rule 7 of the Disposal Rules, since a mosque is located within 100 metres from the proposed site. In W.P.(C)NO.15474 of 2018, the 4[th] respondent Circle Inspector of Excise has filed a statement dated 23.05.2018, wherein it has been stated that by Ext.P2 W.P.(C)Nos.15378, 15472 :-10-: & 15474 of 2018 order dated 28.12.2017 the 3[rd] respondent Deputy Excise Commissioner granted licence to the toddy shop in the new building. However, the petitioner could not conduct toddy shop in that building due to public protest. The request made by the petitioner to shift the toddy shop to the building in which it was functioning till 31.03.2017 was rejected by Ext.P5 order, since the burial ground of R.C. Church is located within 400 metres from the proposed site and as such, the proposed site does not satisfy the conditions stipulated in subrule (2) of Rule 7 of the Disposal Rules. 4. Heard the learned counsel for the petitioners and also the learned Senior Government Pleader for the respondents. 5. The sole issue that arises for consideration in these writ petitions is as to whether the petitioners are entitled to shift their toddy shops to the respective buildings in which such shops were functioning till 31.03.2017, in view of the provisions under the 2[nd] proviso to sub-rule (2) of Rule 7 of the Disposal Rules. 6. The fact that the site proposed by the petitioners in these writ petitions for shifting their toddy shops, i.e., the respective buildings in which W.P.(C)Nos.15378, 15472 :-11-: & 15474 of 2018 such shops were functioning till 31.03.2017, were objectionable sites under sub-rule (2) of Rule 7 of the Disposal Rules is not seriously in dispute. As borne out from the pleadings and materials on record, the site proposed for the toddy shop in W.P.(C)No.15378 of 2018 is located 300 metres away from 'Mariamman Kovil'; the site proposed for the toddy shop in W.P.(C)No.15472 of 2018 is located 100 metres away from a mosque; and the site proposed for the toddy shop in W.P.(C)No.15474 of 2018 is located 280 metres away from the burial ground of R.C. Church. 7. It is also not in dispute that, the toddy shops in question were not functioning from 01.04.2017, since the 3[rd] respondent Deputy Excise Commissioner refused to grant licence from 01.04.2017, in view of the order of the Apex Court in **State of Tamil Nadu v.** **K. Balu [(2017) 2 SCC 281]** , wherein it was held that no shop for the sale of liquor shall be (i) visible from a national or state highway; (ii) directly accessible from a national or state highway and (iii) situated within a distance of 500 metres of the outer edge of the national or state highway or of a service lane along the highway. W.P.(C)Nos.15378, 15472 :-12-: & 15474 of 2018 8. On 06.07.2017 the petitioner in W.P. (C)No.15378 of 2018 moved an application before the 3[rd] respondent to conduct Toddy Shop No.31 in another building, i.e., building with Door No.X/579 of Pattanchery Grama Panchayat, which was allowed by Ext.P2 order dated 07.07.2017. Similarly, the application moved by the petitioners in W.P.(C)No.15472 of 2018, in May, 2017, to conduct Toddy Shop No.48 in a shed put up in the property owned by one Sivasuthan in Sy.No.118/1, Block No.49 of Peruvembu Village, was allowed by Ext.P2 order dated 23.05.2017 of the 3[rd] respondent; and the application dated 27.12.2017 of the petitioner in W.P.(C)No.15474 of 2018 to conduct Toddy Shop No.53 in building bearing Door No.1/505 in Vadakarappathy Grama Panchayat was allowed by Ext.P2 order dated 28.12.2017 of the 3[rd] respondent. 9. Based on the aforesaid orders of the 3[rd] respondent, the toddy shops in W.P.(C)Nos.15378 and 15472 of 2018 started functioning in the new premises, from 07.07.2017 and 30.05.2017 respectively. However, the toddy shop in W.P.(C)No.15474 of 2018 could not function in the new premises, due to public protest. After the clarificatory orders issued by the Apex Court, the petitioners in these writ petitions moved W.P.(C)Nos.15378, 15472 :-13-: & 15474 of 2018 applications before the 3[rd] respondent to shift their respective toddy shops to the buildings in which such shops were functioning till 31.03.2017. The said requests now stand rejected by the 3[rd] respondent by the orders impugned in these writ petitions, in view of the provisions under sub-rule (2) of Rule 7 of the Disposal Rules. 10. Chapter VI of the Disposal Rules deals with general conditions applicable to licensees of Toddy or Foreign Liquor-I shops. As per Rule 7 of the Disposal Rules, the licensees of Toddy or Foreign Liquor-I shops shall be subject to the general conditions enumerated thereunder in sub-rules (1) to (38). Sub-rule (1) of Rule 7 provides that no licensee of any Toddy or Foreign Liquor-I shop shall be permitted to sell or possess toddy or foreign liquor outside the local limits specified in his licence. Sub-section (2) of Section 7 provides further that no Toddy or Foreign Liquor-1 shop notified in the Gazette under Rule 4 shall be located outside the notified limits, but with the previous sanction of the Deputy Commissioner of Excise, it may be removed from one place to another within such limits. However, no such shop shall be located in or removed to a place within an area W.P.(C)Nos.15378, 15472 :-14-: & 15474 of 2018 declared as a project area. No toddy shops shall be located within 400 metres and no Foreign Liquor-1 shops shall be located within 200 metres from an educational institution, temple, church, mosque, burial ground and Scheduled Caste/Scheduled Tribes colonies. In calculating distance, the basis will be the shortest pathway/lane/street/road generally used by the public and the same shall be measured from gate to gate. 11. The 1[st] proviso to sub-rule (2) of Rule 7 of the Disposal Rules provides that, if any educational institution, temple, church, mosque, burial ground and Scheduled Caste/Scheduled Tribes colonies came into existence subsequent to the grant of licence, it shall not disentitle such shops for continuance. The 2[nd] proviso to sub-rule (2), inserted vide SRO No.715 of 2004 with effect from 09.07.2004, provides further that the restrictions regarding distance from an educational institution, temple, church, mosque, burial ground and Scheduled Caste/Scheduled Tribes colonies for locating toddy shops shall not apply to those shops which remained unlicensed for want of unobjectionable site and which are for that reason sought to be located at the same place where they were licensed in previous years availing of the exemptions given to them by W.P.(C)Nos.15378, 15472 :-15-: & 15474 of 2018 notifications/Government orders in this regard. The 2[nd] proviso to sub-rule (2) of Rule 7 earlier provided that the restriction in distance from an educational institution, temple, church, mosque, burial ground and SC/ST colonies for locating toddy shops shall not apply to those shops which remained unlicensed for want of any unobjectionable site, but were to be located at the same place where they were licensed for the year 2001- 2002. Prior to its substitution vide SRO No.715 of 2004, the 2[nd] proviso to sub-rule (2) of Rule 7 was amended, vide SRO No.583 of 2002 and SRO No.630 of 2003, to extend the same relaxation during the years 2002-2003, 2003-2004 respectively. 12. In the instant case, the toddy shops, which were not functioning from 01.04.2017, since the 3[rd] respondent Deputy Excise Commissioner refused to grant licence from 01.04.2017, in view of the order of the Apex Court in **State of Tamil Nadu v. K. Balu [(2017) 2 SCC 281]** , were permitted to be conducted in other premises during the licence period 2017-18, based on Ext.P2 orders of the 3[rd] respondent Deputy Commissioner of Excise. Based on the aforesaid orders, the toddy shops in W.P.(C)Nos.15378 and 15472 of 2018 started W.P.(C)Nos.15378, 15472 :-16-: & 15474 of 2018 functioning in the new premises, i.e., building No.X/579 of Pattanchery Grama Panchayat and a shed put up in the property owned by one Sivasuthan in Sy.No.118/1, Block No.49 of Peruvembu Village respectively, from 07.07.2017 and 30.05.2017 respectively. Though the toddy shop in W.P.(C)No.15474 of 2018 was permitted to be conducted in building bearing Door No.1/505 in Vadakarappathy Grama Panchayat by the order dated 28.12.2017, it could not function in that premises, due to public protest. In view of Ext.P2 orders of the 3[rd] respondent Deputy Excise Commissioner, it cannot be said that the toddy shops in question were licensed for the year 2017-18 at the same place where they were licensed for the year 2016-17, i.e., till 31.03.2017. Therefore, the petitioners are not entitled to claim the benefit of the 2[nd] proviso to sub-rule (2) of Rule 7 of the Disposal Rules, while the 3[rd] respondent considering their applications made after the clarificatory orders issued by the Apex Court, for shifting the respective toddy shops to the buildings in which such shops were functioning till 31.03.2017. In such circumstances, the 3[rd] respondent cannot be found fault with in rejecting the aforesaid applications made by the petitioners, vide Ext.P4 orders, which are W.P.(C)Nos.15378, 15472 :-17-: & 15474 of 2018 impugned in the respective writ petitions. In the result, these writ petitions fail and they are accordingly dismissed. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** bpr