C.N. RAMACHANDRAN NAIR, J.

1. The petitioner, a Municipal Councilor representing the local public has filed this Writ Petition for a direction to the respondents to shift Toddy Shop No. 3 located at Thekky Bazar in Kannur Town to another place.

2. We have heard the counsel appearing for the petitioner, the counsel appearing for the first respondent and the Government Pleader appearing for the remaining respondents. The above mentioned toddy shop was shifted to the objectionable site in the busy town area under Ext.P6 order issued by the Commissioner of Excise on 17.2.2010. However, ever since the toddy shop was shifted to the densely populated area in the town, the people including school children and ladies started agitation against the continuance of the toddy shop. The petitioner has produced large number of photographs and reports published in the news papers about the agitation taken up by the local people for closure of the toddy shop. Ultimately, the representatives of the political leaders including the local M.P. constituted a sub committee, which negotiated with the first respondent for shifting and a decision was taken to shift the toddy shop to a suitable place. The minutes of the committee is produced as Ext.P3 in the Writ Petition. It is seen from Ext.P3 that the decision was to stop retail sale in the toddy shop thereby much of the nuisance is avoided in as much as the customers discontinued visiting the toddy shop. However, it is stated in Ext.P3 that until a new suitable building is located, the workers of the first respondent can bring toddy to the toddy shop, measure the same and distribute it to other toddy shops for sale. It is specifically stated that this work also will be done between 10 a.m. and 11.30 a.m. and outside this time, the toddy shop will remain closed. The understanding in the committee meeting is that sale under no circumstance will take place in the toddy shop. The petitioner's case is that on account of the continuation of the toddy shop, nuisance still continues though in a reduced form and therefore respondents should be directed to shift the toddy shop immediately.

3. The counsel for the first respondent contended that all efforts are made to locate alternate building for shifting the facility and so far they have not been successful in getting a building. First respondent's counsel also submitted that the committee members also had undertaken to co-operate with the first respondent in locating an alternate building for the toddy shop. The counsel further submitted that the toddy is locally generated in the area and as many as 30 toddy tappers are bringing toddy everyday to the toddy shop. Therefore, according to him, the business of production and distribution of toddy cannot be discontinued and if done, the same will cause loss of employment for large number of persons.

4. It is also contended by the first respondent that the toddy shop is not located in any objectionable area and by virtue of the second proviso to R. 7(2) of the Kerala Abkari Shops Disposal Rules, 2002, the first respondent is entitle to continue the toddy shop in the same location.

Rule 7(2) of the Rules is as follows:

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 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 a place within an area 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:

Provided that if any Educational Institution, Temple, Churc