Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MRS. JUSTICE C.S. SUDHA WEDNESDAY, THE 12TH DAY OF APRIL 2023 / 22ND CHAITHRA, 1945 WA NO. 1839 OF 2022 AGAINST THE ORDER/JUDGMENTWP(C) 10435/2022 OF HIGH COURT OF KERALA
APPELLANT/S: 1 ANIL KUMAR MM AGED 51 YEARS S/O MAKKU RESIDING AT, MOORAYIL HOUSE, AVANUR P.O., THRISSUR, PIN - 680541 2 SUBRAMANYAN AGED 49 YEARS S/O SANKARAN, PADINJATTAYIL HOUSE, , AVANUR P.O., THRISSUR, PIN - BY ADVS. P.M.MANOJ T.B.GAFOOR S.RUSSEL HAMZATH ALI V.K. RESPONDENT/S: 1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT , TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 THE EXCISE COMMISSIONER OFFICE OF THE EXCISE COMMISSIONER, EXCISE COMMISSIONERATE VIKAS BHAVAN P.O., NANDAVANAM THIRUVANANTHAPURAM, PIN - 695033 3 THE DISTRICT COLLECTOR COLLECTORATE, AYYANTHOLE, THRISSUR, PIN - 680003 4 THE DEPUTY COMMISSIONER OF EXCISE STATE EXCISE ACADEMY AND RESEARCH CENTRE, ARANATTUKARA, VANCHIKULAM, POOTHOLE, THRISSUR, PIN - 680004 5 SURESH KUMAR EXCISE CIRCLE INSPECTOR, EXCISE CIRCLE OFFICE, THRISSUR, PIN - 6 AVANUR GRAMA PANCHAYATH OFFICE VELAPPAYA, P.O. MEDICAL COLLEGE, THRISSUR, REPRESENTED BY ITS SECRETARY., PIN - 680596 7 KERALA STATE BEVERAGES (MANUFACTURING AND MARKETING ) CORPORATION LTD REPRESENTED BY ITS COMPANY SECRETARY, BVECO TOWER, VIKAS BHAVAN P.O., PALAYAM, THIRUVANANTHAPURAM, PIN - 695033 8 THE MANAGER KERALA STATE BEVERAGES (MANUFACTURING AND MARKETING ) CORPORATION LTD, FL -9 - WARE HOUSE, THRISSUR, PIN - 680006 9 THE DISTRICT SCHEDULED CASTE DEVELOPMENT OFFICER KALAYAN NAGAR, AYYANTHOLE, THRISSUR, PIN - 680011 10 THE SCHEDULED CASTE DEVELOPMENT OFFICER GRADE I PUZHAKKAL BLOCK PANCHAYAT OFFICE, PURANATTUKARA, TRISSUR, PIN - 11 SUNITHA @ NANDINI AGED 47 YEARS W/O. RADHKRISHNAN, RESIDING AT UTTUMADATHIL HOUSE, AVANUR P.O., THRISSUR, PIN - 680541 12 DIRECTOR VIGILANCE AND ANTI-CORRUPTION BUREAU, PMG, VIKAS BHAVAN P.O, OPPOSITE KSRTC DEPOT, THIRUVANANTHAPURAM, KERALA, PIN - 695033 BY ADVS. GOVERNMENT PLEADER C.A.ANOOP SRI.NAVEEN.T., SC, KERALA STATE BEV.CO. M. AND M. T.RAJASEKHARAN NAIR RENJITH THAMPAN (SR.)(K/276/1990) K.M.MUHAMMED HUSSAIN OTHER PRESENT: SR GP SRI T K VIPINDAS THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12.04.2023, ALONG WITH WA.641/2023, 411/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MRS. JUSTICE C.S. SUDHA WEDNESDAY, THE 12TH DAY OF APRIL 2023 / 22ND CHAITHRA, 1945 WA NO. 641 OF 2023 AGAINST THE ORDER/JUDGMENT WP(C) 24097/2022 OF HIGH COURT OF KERALA
APPELLANT/S: 1 ANIL KUMAR MM AGED 51 YEARS S/O MAKKU RESIDING AT, MOORAYIL HOUSE, AVANUR P.O., THRISSUR, PIN - 680541 2 SUBRAMANYAN AGED 49 YEARS S/O SANKARAN, PADINJATTAYIL HOUSE, , AVANUR P.O., THRISSUR, PIN - 680541 BY ADVS. P.M.MANOJ T.B.GAFOOR S.RUSSEL V.R.ARUN HAMZATH ALI V.K. RESPONDENT/S: 1 SUNITHA @ NANDINI AGED 47 YEARS W/O. RADHKRISHNAN, RESIDING AT UTTUMADATHIL HOUSE, AVANUR P.O., THRISSUR, PIN - 680541 2 AVANUR GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, OFFICE OF THE AVANUR GRAMA PANCHAYAT, VALLAPPAYA, MEDICAL COLLEGE P.O., THRISSUR DISTRICT, PIN - 680541 3 THE SECRETARY AVANUR GRAMA PANCHAYATH OFFICE, VELAPPAYA, P.O. MEDICAL COLLEGE, THRISSUR, PIN - 680596 4 KERALA STATE BEVERAGES (MANUFACTURING AND MARKETING) CORPORATION LTD REPRESENTED BY ITS COMPANY SECRETARY, BEVECO TOWER, VIKAS BHAVAN,PALAYAM, THIRUVANANTHAPURAM, PIN - 5 THE MANAGER KERALA STATE BEVERAGES (MANUFACTURING AND MARKETING) CORPORATION LTD, F-9-WAREHOUSE, BEVCO TOWER, VIKAS BVCO TOWER, VIKAS BHAVAN P.O., PALAYAM, THIRUVANANTHAPURAM, PIN - 695033 BY ADVS. T.RAJASEKHARAN NAIR K.M.MUHAMMED HUSSAIN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12.04.2023, ALONG WITH WA.1839/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MRS. JUSTICE C.S. SUDHA WEDNESDAY, THE 12TH DAY OF APRIL 2023 / 22ND CHAITHRA, 1945 WA NO. 411 OF 2023 AGAINST THE ORDER/JUDGMENTWP(C) 22536/2022 OF HIGH COURT OF KERALA
APPELLANT/S: 1 ANIL KUMAR MM AGED 51 YEARS S/O MAKKU RESIDING AT, MOORAYIL HOUSE, AVANUR P.O., THRISSUR, PIN - 680541 2 SUBRAMANYAN AGED 49 YEARS S/O SANKARAN, PADINJATTAYIL HOUSE, , AVANUR P.O., THRISSUR, PIN - 680541 BY ADVS. P.M.MANOJ T.B.GAFOOR S.RUSSEL V.R.ARUN HAMZATH ALI V.K. RESPONDENT/S: 1 SUNITHA @ NANDINI AGED 47 YEARS W/O. RADHKRISHNAN, RESIDING AT UTTUMADATHIL HOUSE, AVANUR P.O., THRISSUR, PIN - 680541 2 AVANUR GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, OFFICE OF THE AVANUR GRAMA PANCHAYAT, VALLAPPAYA, MEDICAL COLLEGE P.O., THRISSUR DISTRICT, PIN - 680541 3 THE SECRETARY AVANUR GRAMA PANCHAYATH OFFICE, VELAPPAYA, P.O. MEDICAL COLLEGE, THRISSUR, PIN - 680596 4 KERALA STATE BEVERAGES (MANUFACTURING AND MARKETING) CORPORATION LTD REPRESENTED BY ITS COMPANY SECRETARY, BEVECO TOWER, VIKAS BHAVAN,PALAYAM, THIRUVANANTHAPURAM, PIN - 5 THE MANAGER KERALA STATE BEVERAGES (MANUFACTURING AND MARKETING) CORPORATION LTD, F-9-WAREHOUSE, BEVCO TOWER, VIKAS BVCO TOWER, VIKAS BHAVAN P.O., PALAYAM, THIRUVANANTHAPURAM, PIN - 695033 6 THE DEPUTY COMMISSIONER OF EXCISE ARANATTUKARA, VANCHIKULAM, POOTHOLE, THRISSUR, PIN - 7 THE SCHEDULED CASTE DEVELOPMENT OFFICER - GRADE I PUZHAKKAL BLOCK PANCHAYAT OFFICE, PURANATTUKARA, TRISSUR, PIN - 680551 BY ADVS. T.RAJASEKHARAN NAIR K.M.MUHAMMED HUSSAIN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12.04.2023, ALONG WITH WA.1839/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Amit Rawal, J.
This order will decide three writ appeals preferred against the
judgment of the Single Bench in W.P.(C) No. 22536 of 2022 and
24097 of 2022 and 10435 of 2022.
2. Petitioner in both writ petitions W.P.(C) No. 22536 of
2022 and 24097 of 2022 being the owner of 7.89 Ares of land in Survey No.502/8/39 Village Avanur of Thrissur Taluk, after obtaining a valid permit from the Panchayath, constructed a Kalyana Mandapam and a compound wall. For the purpose of carrying out FL-1 Shop No.8014 in the said building, entered into an agreement of lease with BEVCO (Kerala State Beverages (Manufacturing and Marketing) Corporation Ltd. The aforementioned exercise was done on the basis of the sanction dated 14.2.2021, granted, by the Deputy Commissioner of Excise, 5th respondent in W.P.(C) No.22536 of 2022. After completing all the formalities, on 16.2.2022, the Manager of the Corporation submitted an application for obtaining D&O licence, to the Panchayath. During the pendency of the said request, one Anil kumar, appellant, herein, and the petitioner in W.P.(C) No. 10435 of 2022, submitted a complaint, that his residence is located opposite to the proposed outlet of foreign liquor and would seriously affect as per the sanctioned order of the Deputy Commissioner. Grama Panchayath entertained the aforementioned complaint and did not issue the licence as sought for and simultaneously a letter was also issued to the Manager, BEVCO not to take steps for shifting of the outlet.
3. The aforementioned communication dated 18.2.2022 of
the Panchayath to the Manager of the BEVCO (Ext.P6 in W.P.(C) No.22536 of 2022) was assailed in this Court vide W.P.(C) No.6102 of 2022 and there was an interdiction. A direction was issued to the Panchayath to consider the statutory application for obtaining the D&O licence submitted by the 4 th respondent. When the order was not complied, it impelled the respondent, petitioner to file the contempt petition bearing No.727 of 2022. The writ petition and
the contempt petition were disposed of by this Court vide judgment
dated 6.6.2022, Ext.P9 whereby a direction was issued to the Panchayath to consider the application as expeditiously as possible. Thereafter, the Grama Panchayath, notified Manager, BEVCO, communication dated 18.2.2022 was withdrawn vide order dated 25.6.2022, Ext.P10. However the request for issuance of the licence was not considered on the premise that the complaint at the behest of Sri.Anil Kumar M.M raised dispute qua the location to be less than 200 mts from the SC/ST colony. Petitioner relied upon the copy of the certificate issued by the Scheduled Caste Development Officer, Puzhakkal Block Panchayath Office to reflect that the building is situated along side the public road having a sufficient parking area and not within the 200 meters as alleged of the SC/ST colony. During the pendency of the aforementioned writ petition, a fresh cause of action accrued in favour of the writ petitioner and another writ petition bearing No. 24097 of 2022 was filed by, whereby, assailing the order dated 19.7.2022, Ext.P4 of the Panchayath ordering the shifting of the shop to the proposed building was within the distance of 200 mts.
4. Appellant, Anil Kumar as noticed above, also filed a writ
petition bearing No. 10435 of 2022 alleging that his property is situated opposite to the shop where the liquor shop is to be shifted. After receipt of the counter affidavit of the respective parties, learned Single Bench during the pendency of the writ petitions appointed an Advocate Commissioner with the following directions:
1. To ascertain the present location of the building No.XV/109 situated in Avanoor Grama Panchayat, which is owned by the petitioner.
2. To ascertain whether there is any scheduled caste
colony, educational institution, church, temple or such other institution, within 200 metres from the proposed building as contemplated in Section 7(2) of Kerala Abkari Shops disposal Rules,2002.
3. To measure out the present distance from the petitioner's building to the alleged scheduled caste colony namely Ambedkar Colony situated in Ward No.12 in Avanoor Grama Panchayat.
4. To ascertain whether there is any inconvenience to the public to be caused, if the 4th respondent shifted FL-1shop No. 8014 to the petitioner's building.
5. To ascertain such other matters to be demanded by the petitioner at the time of inspection of the Advocate Commissioner.
5. After conducting the inspection, Advocate Commissioner
submitted the report dated 14.9.2022. On the basis of the report it was found that there are two entrances to Ambedkar colony and the distance from proposed building to the 1 st entrance situated in ward No.13 is 272.9 meters and to the 2 nd entrance situated from the proposed building to ward No.12 entrance of Ambedkar colony is 557.8 meters, beyond the distance of 200 meters as per the provisions of Rule 7(2) of Kerala Abkari Shops (Disposal) Rules
2002. Noticing all these facts, the writ petition preferred by appellant Anil Kumar bearing No. 10435 of 2022 was dismissed and W.P.(C) No. 22536 of 2022 and 24097 of 2022 were allowed.
6. Learned counsel appearing on behalf of the appellant
submitted that the learned Single Judge did not notice the fact that the writ petitioner had shifted the gate to fall out of the purview of Rule 7.2 of the aforementioned Rules which was not only intentional but malafide. There were number of violation of buildings , but have not been taken note of despite the submission of the complaint to the competent authority. Even there is no requirement of law as per the provisions of Order 26, Rule 9 and various judgments of the Court to file objection to the report of the Advocate Commissioner, Advocate Commissioner did not mark the places by keeping a specific points for ascertaining the distance. All these factors if had been followed, would have resulted into dismissal of the writ petitions filed by the respondent/writ petitioner.
7. On the other hand, learned counsel on behalf of the
Beverage Corporation submitted that the judgment is based upon the report of the Advocate Commissioner. Appellant did not object the appointment of the advocate Commissioner or raised the objection when the process of measurement was undertaken. The presence sheet would reveal that there were about more than hundred(100) person present at the spot and no one raised the objection. No material contrary to the report of the Advocate Commissioner was either placed before the Single Bench or in the Writ appeal, thus there is no illegality in the order of the Single Bench and urged for dismissal of the appeal with exemplary costs.
8. We have heard the learned counsel for the parties and
appraised the paperbooks. The facts as noticed above with regard to the shifting of the FL-1 shop to the building owned by the writ petitioner as per the orders of the Deputy Commissioner are not in dispute. The cause of action in favour of the writ petitioner accrued only when the Grama Panchayath after having received the application for issuance of the D&O licence raised the objection on receipt of the complaint submitted by the appellant and also communicated to the Deputy Commissioner of Excise not to shift the liquor shop. In order to arrive at a just and equitable findings and to ascertain truth qua allegation and counter, Single bench appointed Advocate Commissioner. The operative part of the report of the Advocate Commissioner has already been extracted in the impugned judgment. For the sake of repetition, it is extracted again :-
The building is located as building No.XV/109 situated in Avanur Grama Panchayat, which is owned by the petitioner. As per the direction, the distance was measured by the officials of excise department in my presence and in the presence of all the parties. The distance from the gate of the petitioner's property to the house of Subramanian a person belongs to Scheduled Caste and stated to be a part of Scheduled Caste Colony namely Ambedkar Colony as pointed out by the Scheduled Caste Development Officer is 181.3 metres. There are two entrances to the Ambedkar Colony i.e., from Ward No.13 and Ward No.12. The distance from proposed building to the 1st entrance situated in Ward No.13 is 272.9 metres and to the 2nd entrance situated from the proposed building to Ward No.12 entrance of Ambedkar Colony is 557.8 metres. The distance from the Subramanian's house to the 1st entrance of the Colony is 91.60 metres. In between the Subramanian's house and 1st entrance, there is a campus of Akashavani owned by the Government of India. During my inspection, the 6th respondent Mr. Anilkumar requested me to inspect one temple situates near the proposed building. It is seen that a temple appears to be a family temple of Mr. Subramanian is in existence within his property. I also interacted with public. They gave 2 copies of mass representations submitted by them to the Government authorities including Chief Minister requesting not to shift the shop to the proposed building. Those representations were made available by one Mr.Venugopal P.B. and
Mrs.Shantha. The report reveals that the distance from the proposed building to the 1st entrance is 272.9 metres and to the 2 nd entrance is 557.8 metres of Ambedkar Colony. Building is beyond the prohibited area ie., 200 meters. There is no violation of the Rule 7(2) of Kerala Abkari Shops (Disposal) Rules 2002 which prohibits the activity within the limit of 200 meters in respect of certain institutions prescribed therein. We do not find any illegality in the
order of Single Bench to form a different opinion than the one
arrived at. The Writ appeals are accordingly dismissed. Sd/- AMIT RAWAL JUDGE Sd/- sab C.S. SUDHA JUDGE