S. Siri Jagan, J.

Petitioners are aggrieved by the shifting of toddy shop No.15 of Mavelikkara Range to Building No.T.P.XII 753 situated in RS No.268/11 of Vettiyar Village, which is being conducted by the 6th respondent as licensee. According to the petitioners, the present location of the toddy shop is within the prohibited distance under R.7(2) of the Kerala Abkari Shops Disposal Rules 2002 ("the Rules" for short), from a mosque. The petitioners therefore seek quashing the order dated 25.4.2006 passed by the 4th respondent allowing shifting of the toddy shop No. 15 of Mavelikkara Range to the above said building. Related reliefs are also prayed for.

2. Essentially the question is whether the present building is within the prohibited distance under R.7(2) of the Rules. The mosque referred to by the petitioners is the Hidayathul Islam Jamayath (West) Vettiyar. The 6th respondent has filed a counter affidavit refuting the contentions of the petitioners. According to the 6th respondent, the mosque is situated beyond 450 meters from the toddy shop which is in excess of the distance mentioned in R.7(2). Although the petitioners have filed a reply affidavit, reiterating that the mosque is situated within less than 350 meters, no attempt hag been made before me to prove the same. The authorities of the mosque have not chosen to file any complaint or approach this court. The learned Government Pleader submits that the license was issued after properly verifying the fact as to whether the toddy shop is within the prohibited distance or not. According to the learned Government Pleader, it is not. The question whether the mosque is situated within the prohibited distance under R.7(2) of the Rules or not is purely a question of fact, which the petitioners have to prove by adducing evidence. Apart from the affidavit of the petitioners, which has been controverted by the 6th respondent by filing a counter affidavit, there is absolutely no material before me for coming to the conclusion that in fact there is a mosque within the prohibited distance from the toddy shop in question.

3. The learned counsel for the petitioner raised another ground relating to the competency of the Assistant Excise Commissioner to pass the impugned order. According to the counsel, the Assistant Excise Commissioner does not have power to permit shifting of toddy shops from one place to another within the notified limits. The counsel would submit that the power to order shifting vests exclusively with the Commissioner of Excise under R.7(3) of the Kerala Abkari Shops Disposal Rules, 2002 and, therefore, the order now passed by the Assistant Excise Commissioner is without jurisdiction and, therefore, unsustainable.

4. The learned counsel for the petitioner draws an analogy from the decision of this court in Ancy Chacko v. Commissioner of Excise reported in 2000 (2) KLT 645. The said decision was confirmed by the Supreme Court in the decision of Jayaraj v. Commissioner of Excise reported in 2000 (3) KLT 820 (SC). According to the petitioner, these decisions would support the contention of the petitioner that what is contemplated in R.7(2) is only removal of toddy shop from one place to another within the notified limits in order to satisfy the distance rule mentioned in that rule itself and not otherwise. The petitioner takes me extensively to various passages in those two decisions. I do not think it necessary to go through all those passages in this decision, since according to me, that decision is not applicable to the facts of this case in so far as that case dealt with the question of shifting of foreign liquor shop from one range to another.

5. Let us see whether the contention of the petitioner on the basis of R.7 (2) and R.7 (3) is sustainable. R.7(2) and R.7(3) read as under:

"7(2). No Toddy or Foreign Liquor-1 shop notified in the Gazette under R.4 shall be located outside the notified limits, but with the previous sanction of the Assistant Excise C