Thottathil B. Radhakrishnan, J.

1. An outlet of the Kerala State Beverages (M & M) Corporation Ltd. for Indian Made Foreign Liquor was being run in a building abutting a National Highway. That was decided to be shifted to another building, aside a road which was the old National Highway. According to the writ petitioner, that proposed premises is within the prohibited distance from Kannatti Sree Dhanwanthari Moorthi temple, in terms of the Foreign Liquor Rules, 1953, for short, 'FL Rules'. There is no dispute between the vendor/Corporation and the petitioner regarding the distance. The defence of the vendor/Corporation is that the so called temple is not one which falls within the purview of the proviso to R.13(1)(d) of the FL Rules. R.13(1) defines a temple to "means a place or public, religious worship by Hindus where the deity is installed under a building and includes a mutt also". The proviso to that Rule says that "any structure on the roadside pavement or in a compound of a private building with or without deity shall not be considered as a Temple, Church or Mosque".

2. Before the learned single Judge, the petitioner relied on the decision of the Division Bench of this Court in Sudheesh Kumar Vs. Commissioner of Excise, which dealt with R. 2(m) and the proviso thereof in the Abkari Shops Disposal Rules, 2002 (Kerala), for short, the 'Disposal Rules', which is in pari materia with the aforesaid definition of temple in R. 13(1) of the FL Rules and the proviso thereof. Dilating on the terms of the proviso, the learned single Judge felt it necessary that it be considered as to whether the decision of the Division Bench in Sudheesh Kumar requires reconsideration. Hence, this reference to the Division Bench.

3. Heard learned counsel for the petitioner, the learned counsel for the vendor/Corporation and learned Government Pleader, in extenso, on the different aspects of the matter, on facts and on the interpretation of the rule in question.

4. Though the learned counsel for the petitioner referred to the decisions of the larger Bench in Babu Premarajan Vs. Superintendent of Police, Kasaragode and Others, and Peter Vs. Sara, to insist that the order of reference ought not to have been made and that the ratio of Sudheesh Kumar ought to have been followed, we are of the view that the learned single Judge was well within authority and jurisdiction under S. 3 of the Kerala High Court Act, 1958, to make an order of reference since that order states the reasons which, in the view of the learned Judge, tend to indicate that Sudheesh Kumar may require re-consideration. Learned Judge has attempted to point out that Sudheesh Kumar has been decided without appropriately considering the proviso to R.2(m) of the Disposal Rules, which is in pari materia with R. 13(1) of the FL Rules and the proviso thereof. We, therefore, overrule the plea impeaching the order of reference.

5. In its substance, Sudheesh Kumar was rendered holding that the concept of temple in terms of R.2(m) of the Disposal Rules has to be understood as encompassing all places of religious worship by Hindus, where public have access for prayers. Therefore, no matter whether the temple stands on a private land, or not; if public have access for prayers and religious worship by Hindus, that premises becomes a temple for the purpose of R. 13(1). Such elucidation of the law, including the provisions in the Disposal Rules, was made in the context of kavus which are adored as part of religious practices among Hindus. It needs to be noted that for a temple to become a public temple or a place of public worship by Hindus, it is not necessary that it should stand in a public place and not in a private property. This position is well settled by a catenate of decisions from the three zones of judicial precedents; be it from the Madras High Court; the Allahabad High Court or the Calcutta High Court. This would be clearly indicated by the precedents rendered by those courts, which a