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1985 Supreme(Ker) 224
Judges : V.SIVARAMAN NAIR
KUMARAN - Appellant
Versus
STATE OF KERALA - Respondent
Case No : O.P. No. 3636 of 1985-Y
Decided On : 08/09/1985
Advocates Appeared :
P.G. Parameswara Panicker; For Petitioners Philip Antony Chacko; R. Sivadasan; Government Pleader; For Respondents
The central legal point established in the judgment is the requirement of 'sufficient reasons' for granting exemptions from the rule prohibiting the location of abkari shops near educational and religious institutions, and the duty of the State to regulate the proliferation of alcoholic establishments near such institutions.
Headnote:
Arrack Shop - Location of Sub Shop - Kerala Abkari Shops (Disposal in Auction) Rules, 1974 - R.6(2)(b) - The court discussed the provisions of R.6(2)(b) of the Auction Rules, which prohibit the location of abkari shops within a certain distance of educational and religious institutions. The court emphasized the requirement of 'sufficient reasons' for granting exemption from this rule and highlighted the factors that should be considered in granting such exemptions. The court also criticized the guidelines contained in Ext.P2 for enlarging the power of the Board of Revenue to pass orders of exemption contrary to the provisions of the rule and public interests.
Fact of the Case:
The petitioners objected to the location of a sub shop attached to Arrack Shop No.3 of Quilon Excise Range, contrary to the provisions contained in R.6 of the Kerala Abkari Shops (Disposal in Auction) Rules, 1974. They sought relief through a writ of mandamus and later amended the petition seeking the issue of a writ of certiorari to quash certain guidelines, orders, and proceedings related to the location of the shop.
Finding of the Court:
The court found that the orders and guidelines related to the location of the sub shop were made without sufficient reasons and were influenced by extraneous and irrelevant circumstances. It also criticized the mechanical issuance of orders of exemption without proper consideration of 'sufficient reasons' and highlighted the duty of the State to reduce the extent and depth of inebriation instead of promoting the proliferation of alcoholic establishments near religious and educational institutions.
Issues: The issues included the reasonableness and arbitrariness of the guidelines, the lack of proper consideration for granting exemptions, and the duty of the State in regulating the location of abkari shops.
Ratio Decidendi: The court emphasized the requirement of 'sufficient reasons' for granting exemptions from the rule prohibiting the location of abkari shops near educational and religious institutions. It also highlighted the duty of the State to regulate the proliferation of alcoholic establishments near such institutions.
Final Decision: The Original Petition was allowed, and the guidelines, orders, and proceedings related to the location of the sub shop were quashed. Each party was directed to bear their respective costs.
1. The petitioners object to the location of a sub shop attached to Arrack Shop No.3 of Quilon Excise Range, contrary to the provisions contained in R.6 of the Kerala Abkari Shops (Disposal in Auction) Rules, 1974 - hereinafter referred to as the Auction Rules. At the time when the Original Petition was filed, the petitioner was not aware of the special order issued by the Board of Revenue granting exemption to locate the shop in the prohibited area in exercise of the power under R.6(2)(b) of the Auction Rules. Therefore, the petitioner sought the relief of issue of a writ of mandamus directing respondents 1 to 4 to forbear from granting licence to respondents 5 and 6 to locate or conduct Arrack Shop No.3 of Quilon Excise Range in Shed M.C.130 of Mulamkadakam Ward of Quilon Municipality. Petitioners had submitted Ext.P1 representation in that regard on 6-4-1985. The Board of Revenue passed Ext.P3 order dated 9-4-1985 in the meantime, permitting respondents 5 and 6 who were the successful bidders of Arrack Shop No. 3 to locate Shop No.3A/85-86 for three months for 1985-86 in exercise of the power under R.6(2)(b) of the Auction Rules. This was followed by Ext.P4 licence dated 9-4-1985 issued by the Assistant Commissioner of Excise for a period of one year ending 31-3-1986. The Board of Revenue is said to have exercised its power in accordance with the guidelines contained in Ext.P2. Petitioners thereafter amended the Original Petition seeking the issue a of writ of certiorari to quash Ext.P1 guidelines, Ext.P3 order of the Board of Revenue and Ext.P4 proceedings of the Assistant Commissioner of Excise granting the licence in favour of respondents 5 and 6 for a period of one year. Reliance was placed in support of his submissions on Ext.P5 judgment in O.P.No.7112 of 1984.
2. Counsel for the petitioners submits that Ext.P2 guidelines enabling the Arrack Shop to be located within the distance not less than 100 metres in town areas and 200 metres in mofussil areas from educational and religious institutions is unreasonable and arbitrary. Similarly, the restriction of the right to object only to authorities of religious and educational institutions, it is said, is arbitrary and unreasonable. The location of abkari shops as a matter of course within 400 metres of the institutions is also said to be an illegal and arbitrary affront to public interests. A further limitation that if no objections for locating the abkari shop within the prohibited distance is taken within three months, the exemption has to be continued for 9 more months as a matter of course is also said to be a provision opposed to public interest and meant to assist the abkari contractors alone. A far more fundamental and serious objection of the petitioners is against Ext.P3 order for the reason that it was made without reference to the relevant considerations, and as a result of influence only of extraneous and irrelevant circumstances. An objection against Ext. P4, in addition to the above, is that the Assistant Commissioner of Excise has no power under the rules to issue a licence for conducting abkari shop within prohibited distance for a period of one year.
3. The scope of the power of the Board of Revenue under R.6(2)(b) proviso of the Auction Rules had come up for consideration quite frequently before this court. The prohibition that ordinarily abkari shops shall not be conducted within a distance of 400 metres of religious and educational institutions is a restriction imposed in public interest. That is a rule of general application. The proviso to R.6(2)(b) enables the Board of Revenue to grant exemption from the operation of that rule for "sufficient reasons". The grant of exemption has, therefore, to be tested with reference to the requirement of "sufficient reasons".
4. The materials available to the Board of Revenue at the time when Ext.P3 order was passed consisted of the report of the Assistant Commissioner of Excise. The factors which were adve
