K. N. Sreenivasan vs The Assistant Excise Commissioner, Ernakulam

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2001 Supreme(Ker) 540

Judges : B.N.SRIKRISHNA,M.RAMACHANDRAN
K.N.Sreenivasan - Appellant
Versus
The Assistant Excise Commissioner, Ernakulam - Respondent
Case No : OP No 24377 OF 2001
Decided On : 11/13/2001
Advocates Appeared :
For the Petitioner: T.P. Varghese, P.M. Mujeeb Rehiman, Advocates. For the Respondent: R1 & R3 Roy Chacko (Sr.Govt. Pleader), R2. M.K. Aboobacker, R4 & R5 K.P. Satheesan & M.K. Gopinathan Nair, Advocates.

Headnote:
Constitution of India –Articles 226, 47 –Issue on License to Shops –The learned Government Pleader submits that, as far as Ernakulam District is concerned, the rule, as it stands has a note and a proviso thereafter – This proviso further provides that "the toddy shops in Ernakulam and Thrissur Divisions may be licensed for three years from 1st April 1994 in the same locations in which they were licensed in 1991 –It is not the case of the learned Government Pleader that there is any change in this proviso –Learned Government Pleader contends that by reason of the Act all rules made and notifications issued under this Act and published in the gazette shall have the force of law and read as part of this Act and may in like manner be varied, suspended or annulled –Held, In Court view, such a denial has no meaning and is no denial at all – When specific details were averred in the Original Petition, it was necessary for respondents 4 and 5, if they were serious about controverting the issue, to deny the same on oath and state whether the institutions named in Ground A of the Original Petition were in existence near the 4th respondent toddy shop, and if so, at what distance they were situated according to respondents 4 and 5 – A mere vague and general denial is no denial in law –In the circumstances, after considering the counter affidavit of respondents 4 and 5, Court is of the view that the fact that the 4th respondent toddy shop is situated within the prohibited distance of the institutions named in Ground A of the Original Petition needs to be accepted –Once Court come to this conclusion, then the prohibition against licensing of such a toddy shop is absolute – Neither the first respondent, nor the State Government, is shown to have any power to grant any relaxation – Therefore, Court is of the view that the licence issued to respondents 4 and 5 is contrary to the prohibition contained in R. 6(2) and is therefore illegal –In the view court is taking in the matter, it is unnecessary for court to go into the question as to whether the premises in which the 4th respondent is licensed is authorised or unauthorized –Court leave that question to be decided by some other competent authority as and when it is raised –Consequently, court quash and set aside the license Ext. R4(c) and direct the first respondent to ensure that the 4th respondent toddy shop does not function at the place at which it is located presently –Original Petition allowed

Judgment :-

Srikrishna, C.J.

This writ petition under Article 226 of the Constitution is directed against Ext. R4 (c) license issued to the 4th respondent to conduct Toddy Shop No.52 in a shed situated in Sy. No. 967/18B (Resurvey No. 64/14 in Block No.6) of Thrikkakara North Village. It is the case of the petitioner that said the shop owned by the 5th respondent is located within the prohoibited distance prescribed by Rule 6(2) of the Kerala Abkari Shops (Disposal in auction) Rules, 1974 (hereinafter called 'the Rules'). The petetion specifically avers that the toddy shop of the 4th respondent is situated at a distance of 216 metres from the temple known as Kavilkulangara Bhagavathy Temple, 330 metres from Immadudeen Mosque, 385 metres from N.A.D. Ayyappa Temple and 392 metres from N.A.D. Government L.P.School . It is also averred that the toddy shop of the 5th respondent is functioning in an unauthorized structure which has been putup without license or approval. According to the petitioner , several representations. like Exts. P2, P5 and others were made by the people of the locality objecting to the functioning of the toddy shop at the said premises, but the first respondent Assistant Excise Commissiner,Ernakulam, without application of mind to the objections raised by the said residents of the locality, granted Ext. R4 (c) license to the 4th respondent.

2. Rule 6(2), which is relevant reads as under:

" No toddy , or foreign liquor shop notified in the Gazette under rule 4, Shall be located outside the notified limits, but with the previous sanction of the Assistant Excise Commissioner it may be removed from one place to another within such limits. However no such shop shall be located in or removed to place within an area decalred as a project area. No toddy shop shall be located within 400 metres and no Foreign Liquor 1 shop shall be located within 200 metres from an Educational Institution, Temple, Church, Mosque, Burial Ground, Harijan Colonies or Tribal Colonies:

Provided that the Excise Commissioner may for sufficient reasons to be recorded in writing and subject to such conditions as he may deem necessary to impose, order to remove from any place, any toddy shop or Foreign Liquor 1 shop to a place outside the limits specified in this sub- rule:

Provided further that if any educational institution, Temple, Church, mosque or burial ground comes into existense subsequent to the grant of license, it shall not disentitle such shops for continuance:

Note:- In calculating distance the basis will be shortest pathway/lane/street/road generally used by the public and the same shall be measured from gate to gate.

Provided further that the toddy shops in Ernakualm and Thrissur divisions may be licensed for three years from 1st Aporil 1994 in the same locations in which they were licensed in 1991."

3. The rule in the present form was substituted by S.R.O No. 254/94 with effect from 1.4.1994. the earlier rule had a proviso which read as under:

" Provoided further that the toddy shop , arrack shop and foreign liquor retail shop shall be permitted to be loctated and licensed in such places where they were located and licensed in the Abkari year 1991-92 as a toddy shop, an arrack shop or foreign liquor retail shop respectively. In the events of complaints, the Excise Comissoner shall cause due enquiries and for sufficient reasons to be recorded, order the shifting or closure of such shops"

Thus, under the rule as it stood prior to the amendments in the year 1994, the State Government was empowered under the second provison to issue a license in respect of an establishment which had been licensed in the previous year. The government in exercise of its rule making powers has now deleted that discretion by amending rule 6 in the form as extracted above on and from 1.4.1994. Thus, on and from 1.4.1994, there does not appear to be any discretionary power in the State authorities to relax the rigour of the rule on the basis of a previous license.

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