JUDGMENT

Writ petitioner is the licensee of all toddy shops in group II in Thodupuzha Excise range in Idukki division. Toddy shop No.49 was included in that group. The toddy shop was conducted in a building, which, according to the writ petitioner was in a dilapidated condition. Hence, he proposed to shift that toddy shop to another building, which was taken on rent from another person evidenced by Ext.P1 consent letter. Subsequently, Ext.P2 application was submitted to the second respondent through the third respondent seeking permission for shifting the toddy shop from the present building to the building covered by

Ext.P1. It seems that, objection was raised by one Sanjo C.M.I. Public School on the ground that the proposed toddy shop would fall within the objectionable limit as contemplated under the Abkari Act. The application was considered on the basis of the report of the Village Officer submitted to the third respondent as well as the location map, both produced as Exts.P3 and P4 respectively. It seems that the distance was calculated through a lane/thondu. The distance was only 390ms, which was less than the objectionable distance of 400ms. Consequently, by Ext.P7 order, the third respondent dismissed the application holding that the Village Officer had reported that, it was not possible to ascertain whether the thondu/lane was used by public as a public/private road.

2. Challenging Ext.P7, the writ petitioner has approached this Court. Heard the learned counsel for the writ petitioner and the learned Public Prosecutor.

3. Essentially, the contention of the learned counsel for the writ petitioner was that, thondu was not a road, used by the public. It was only a boundary separating two items of properties and was not used by the public for travel. Yet another contention advanced by the learned counsel for the petitioner was that, as per Rule 7(2) of the Kerala Abkari Shops Disposal Rules 2002, the shifting of the shop within the boundaries can be ordered only by the Deputy Commissioner of Excise and in this case, the application was considered and disposed of by the second respondent. However, third respondent, who is only a Circle Inspector of Excise had no jurisdiction to pass an order in the nature of

Ext.P7. On the basis of these contentions, Ext.P7 was sought to be set aside.

4. The State has filed a detailed statement, wherein, it was inter alia contended that the building, to which, it was proposed to be shifted, fell within the objectionable distance and the distance was only 390ms, which was less than 400 ms. It was further contended that,

Ext.P7 was passed on the basis of available materials. Third respondent, under the directions of the second respondent called for a report and after consideration of all the materials, informed the second respondent about the facts. The third respondent is the primary authority to verify such an application according to the Rules and other directions connected to the matter and he reported the matters to the second respondent. Second respondent issued directions to the third respondent to reject it, if it was found that, it was against the Rules and Regulations. Accordingly, the third respondent rejected it.

5. Evidently, the second respondent is the authority who is bound to consider and pass orders. Role of the third respondent is only limited. Though it was contended that the application was considered and rejected under the directions of the second respondent by the third respondent, Ext.P7 does not disclose it. Ext.P7 is the order passed by the Excise Circle Inspector who is not the competent authority. There is no reference that, it was issued under the direct orders of the second respondent. It is true that, in the order, there is a reference to the communications dated 08.07.2020 and 14.08.2020 of the Deputy Excise Commissioner