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HIGH COURT OF KERALA
DAMA SESHADRI NAIDU, J
N MOHANAN – Appellant
Versus
THE ASST EXCISE COMMISSIONERENFORCEMENTALAPPUZHA – Respondent
WRIT PETITION (CIVIL) 14159/2015
Distance - Liquor Licensing - Abkari Shops Disposal Rules - 7(2) - The court interpreted Rule 7(2) of the Abkari Shops Disposal Rules concerning distance measurements for liquor shops, emphasizing a purposive approach that considers the welfare of students near educational institutions.
Fact of the Case:
The petitioners, licensees of a toddy shop, sought to relocate their shop back to its original location post-2007, which was rejected by the authorities due to its proximity to a school. Disputes arose regarding the appropriate method for measuring distance between the shop and the school, given multiple access points to the school.
Finding of the Court:
The court affirmed that multiple gates of a building can be considered for distance measurement and emphasized that the actual access used by the public must be considered rather than strictly adhering to the notion of a single main gate.
Issues: Whether the distance should be measured solely from one main gate of the educational institution or whether other gates can also be considered, affecting the legality of the proposed location of the toddy shop.
Ratio Decidendi: The court determined that the intent of Rule 7(2) regarding distances for liquor shops should be interpreted to consider any main access point, aligning with the legislative intent to protect young individuals from exposure to alcohol.
Final Decision: The writ petition is dismissed.
JUDGMENT
This writ petition, once again, brings into focus the issue of the distance-norm in establishing retail liquor outlets. To be precise, the issue is how the distance between a liquor outlet and an educational institution with many access points to be reckoned.
2. The petitioners are the licencees of Toddy Shop Nos.91 to
95 in Group No.17 of Cherthala Excise Range. Shop No.93 is the subject of the present lis. The shop was set up in a particular building till 2007, when it was shifted to another location with the leave of the authorities. The record reveals that shifting was occasioned because the landlord wanted to sell his property. Soon thereafter, in view of the difficulties the licencees faced with the new landlord, they once again applied to the authorities to shift the shop WPC 14159/15 2 to a new location. They did obtain the permission but could not shift the shop, given the public protest in the proposed area.
3. As the petitioners could not shift the toddy shop to the newly permitted location, they negotiated with the owner of the building in which they had their shop till 2007 and secured his consent to move back, for he had decided to retain the property instead of selling it.
4. In response to the petitioners’ application, the second respondent called for a report from the third respondent, who submitted Exhibit P4 opinion on the petitioners' request for shifting. Requiring clarifications on certain aspects, the second respondent once again asked the third respondent to provide more information. It resulted in Exhibit P5 communication from the third respondent. Thus, based on the third respondent’s Exhibits P4 and P5 opinions, the second respondent issued Exhibit P3 proceedings rejecting the petitioners' request to shift the toddy shop back to the old building, where the shop had functioned till 2007.
WPC 14159/15 3
5. Faced with Exhibit P3 rejection, the petitioners requested the second respondent to reconsider his decision. This time the fourth respondent conducted an enquiry and submitted Exhibit P6 report. Eventually, the third respondent passed Exhibit P7 order on 18.03.2015 reiterating his stand as had been reflected in Exhibit P3. The petitioners did not challenge the rejection as the abkari year ended within a couple of weeks after Exhibit P7 order of rejection. Nevertheless, for the abkari year 2015-16, the petitioners once again submitted an application renewing their request. Predictably, the third respondent, through exhibit P9, rejected their request to shift the shop.
6. Beginning from Exhibits P3 to P9, the authorities’ stand is uniform: that the place where the petitioners wanted to shift their shop is within the prohibited area of a nearby school. Aggrieved, the petitioners filed this writ petition.
7. In the above factual background, Sri M. G. Karthikeyan, the learned counsel for the petitioners, has submitted that the WPC 14159/15 4 distance-norm as has been stipulated in Rule 7(2) of the Abkari Shops Disposal Rules ('the Rules') is well settled through a series of judicial pronouncements. To begin with, he has submitted that till 1993 or thereabout, the legislation was not clear concerning how to measure the distance between the two places. According to him, both in the and also Foreign Liquor Rules, amendments were effected: The distance shall be measured from gate to gate.
8. The learned counsel has further contended that the school in question has one main gate and two wicket gates. It is the learned counsel’s specific contention that the wicket gates are meant for ancillary purposes, such as providing passage to the vehicles, etc. According to him, those gates cannot be treated as main gates. To support his submissions, the learned counsel for the petitioners has placed reliance on State of Kerala v. Vijaya Kumar1.
9. Per contra, the learned Government Pleader, with equal
WPC 14159/15 5 vehemence, has submitted that the decision relied on by the petitioner can easily be
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