A.V. Savant, C.J.

Heard both the learned counsel.

2. This is an appeal against the judgment and order dated 22.5.2000 passed by the learned Single Judge in O.P. 12130 of 2000.O.P. was filed by the present appellant Smt. Ancy Chacko challenging the impugned order dated 12th April, 2000, Ext. PI passed by the first respondent Commissioner of Excise, Thiruvananthapuram purporting to be in exercise of his powers under the first proviso to sub-r.(2) of R.6 of the Abkari Shops (Disposal in auction) Rules, 1974 (for short, "the rules") framed under the Kerala Abkari Act,1 of 1077. Under the impugned order dated 12th April, 2000 the first respondent had accorded sanction "to install the FLI shop No. 70/2000-2001 at Karukachal Panchayat" as per the proviso to R.6(2) of the aforesaid Rules on condition that the licensee will not be permitted to locate the shop outside its schedule limit with effect from 2001-2002. It was further ordered that the shop should be located in the schedule limit with effect from 1.4.2001.

3. Admitted facts are that the appellant is a licensee (FL-3) issued under R.13(3) of the Kerala Foreign Liquor Rules framed under the said Abkari Act. She is conducting a hotel-cum-restaurant in Karukachal Panchayat. She was aggrieved by the order Ext. PI passed by the first respondent allowing the third respondent to shift his FL-1 shop, though initially the said shop was located for about 15 years within the Changanacherry Municipal limits. The notified area of location for the said shop No. 70 is admittedly within the Changanacherry Municipal limits. Hence the appellant contended that shifting of the above shop from Changanacherry Municipal limits to Karukachal Panchayat was wholly illegal and arbitrary and was contrary to the scheme of R.6(2) of the Rules.

4.The third respondent was aware that the auction of shop No. 70 was for the Changanacherry Municipal limits. Under R.6(1) of the 1974 Rules, no licensee of any toddy or foreign liquor shop shall be permitted to sell or possess toddy or foreign liquor or cocobrandy outside the local limits specified in his licence. The limits specified in the licence are the Changanacherry Municipal limits. Sub-r.(2) of R.6 contemplates that no toddy or foreign liquor shop notified in the Gazette under R.4, shall be located outside the specified limits. However, with the previous sanction of the Assistant Excise Commissioner it may be removed from one place to another within such limits. The emphasis is, therefore, on locating the shop within the specified limits, in the present case, Changanacherry Municipal limits. It is further provided that no such shop shall be located or removed to a place within an area declared as a project area. Similarly no toddy shop shall be located within 400 metres and no Foreign Liquor 1 shop shall be located within 200metres from an educational Institution, Temple, Church, Mosque, Burial ground, Harijan Colonies or Tribal Colonies. There are two provisos to sub-r.(2) of R.6 and in this case we are concerned with the first proviso, which reads as follows: "Provided that the Excise Commissioner 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".

5. This case clearly illustrates the Res Ipsa Loquitor maxim. On 13th March, 2000 the third respondent fare his bid at the auction fully aware of the fact that the auction for Shop No. 70 was for the Changanacherry Municipal limits only. The bid was accepted on the same day. It seems that thereafter the third respondent applied to the Circle Inspector of Excise, Changanacherry on 23rd March, 2000 pointing out that it was difficult for him to locate the shop in the Changanacherry Municipal limits and there was no unobjectionable site which was available to him for locating his FL1 shop. Within a day of this applicat