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HIGH COURT OF KERALA
T.R.RAMACHANDRAN NAIR, J
ANILKUMAR – Appellant
Versus
DEPUTY COMMISSIONER OF EXCISE – Respondent
WP(C)/14060/2010
License - Excise Licensing - Kerala Abkari Shops Disposal Rules - Rule 7(2) - The court examined the application of Rule 7(2) of the Kerala Abkari Shops Disposal Rules, determining the conditions under which a toddy shop license could be issued despite proximity to objectionable sites, emphasizing the petitioner's right to seek exemption.
Fact of the Case:
The petitioner sought a license for a toddy shop, facing objections due to proximity to a madrasa. The license had been previously issued but was not renewed based on Rule 7(2) of the Kerala Abkari Shops Disposal Rules, 2002.
Issues: Whether the petitioner is entitled to a toddy shop license despite the existing objection as per Rule 7(2) of the Kerala Abkari Shops Disposal Rules.
Ratio Decidendi: The court determined that under Rule 7(2), if no unobjectionable site could be found for the license, the petitioner could still be granted a license by availing the exemption provided in the second proviso.
Final Decision: The writ petition was disposed of with directions for the first respondent to consider the application for exemption.
JUDGMENT
The petitioner was granted permission to conduct the 2nd Group toddy shop of Kilimanoor Excise Range for the year 2010-2011. There are five toddy shops in the group. The licence was granted to toddy shop Nos.1, 6, 7 and 8 for shop No.9, the licence is yet to be issued. The petitioner has filed this Writ Petition seeking for a direction to the first respondent to issuethe licence in the present location.
2. A statement has been filed on behalf of the first respondent stating that Noorul Islam Madrasa, Thaikkavu is functioning within 70 meters from the gate of the toddy shop proposed to be licensed in favour of the petitioner and the said site is objectionable as per Rule 7(2) of the Kerala Abkari Shops Disposal Rules, 2002 . It is pointed out that the said aspect was the reason for not renewing the licence.
3. The statement shows that the shop was licenced since 1998-1999 and the Madrasa was functioning in that place since 1982. Going by the second proviso to Rule 7(2), there is a provision to locate the shop in the same place availing the benefit of exemption. The statement further wpc 14060/2010 2 proceeds to state that it is up to the petitioner to find out an unobjectionable site for obtaining the licence. Finally, in para 5 it is stated that if no unobjectionable site is available within the scheduled premises, the petitioner will get the benefit of the proviso to Rule 7(2) of the Rules. 4. The petitioner has filed I.A. No.7164/2010 producing Ext.P6. It is pointed out that even though the petitioner made earnest efforts, no unobjectionable site could be found out. Therefore, he seeks for the benefit of second proviso to Rule 7(2), in Ext.P6 application.
5. Therefore, what is required is only to direct the first respondent to consider Ext.P6 and pass appropriate orders and to see whether the petitioner is entitled for the benefit of the second proviso to Rule 7(2) of the Rules. An appropriate decision will be taken and communicated to the petitioner, after hearing him, within a period of two weeks from the date of receipt of a copy of this judgment. The petitioner will produce a copy of the judgment before the first respondent for compliance. The writ petition is disposed of as above. No costs.
(T.R. Ramachandran Nair, Judge.)
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