IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
RP NO. 499 OF 2022
AGAINST THE JUDGMENT IN WP(C) 16336/2022 OF HIGH COURT OF
KERALA
REVIEW PETITIONER/6TH RESPONDENT IN W.P(C)
THE ARANGOTTUKARA JUMA MASJID COMMITTEE, ARANGOTTUKARA
P.O., PALAKKAD DISTRICT,PIN 680 593 REPRESENTED BY
ITS SECRETARY SRI. S.P. SAIDALI, AGED 54 YEARS,
RESIDING AT SOURYAMPARAMBIL, THIRUMITTACODE,
ARANGOTTUKARA P.O., PALAKKAD DISTRICT, PIN 680593,
THROUGH POWER OF ATTORNEY EXECUTED BY THE SECRETARY IN
FAVOUR OF SRI. K.Y. IKBAL, AGED 42 YEARS, SON OF YAHU,
RESIDING AT KUNDOORATH VALAPPIL, ARANGOTTUKARA P.O.,
THIRUMITTACODE VILLAGE, PALAKKAD DISTRICT, PIN -
679532.
BY ADVS.N.M.MADHU
C.S.RAJANI
RESPONDENTS/WRIT PETITIONER/RESPONDENTS 1 TO 4 & 6:
1 BAIJU P,AGED 35 YEARS,S/O MANI, PAINGALA HOUSE,
AMARAMBALAM P.O., POOKKOTTUMPADAM-VIA, NILAMBUR
TALUK, MALAPPURAM DISTRICT, PIN - 679532
2 THE EXCISE COMMISSIONER,COMMISSIONERATE OF EXCISE,
EXCISE HEAD QUARTERS, NANDAVANAM, THIRUVANANTHAPURAM,
PIN - 695033
3 THE DEPUTY COMMISSIONER OF EXCISE,EXCISE DIVISION
OFFICE, CIVIL STATION, PALAKKAD, PIN - 678001
4 THE CIRCLE INSPECTOR OF EXCISE,EXCISE CIRCLE OFFICE,
THOTTAKKARA P.O., OTTAPALAM, PALAKKAD DISTRICT, PIN -
679102
5 THE SECRETARY,THIRUMITTAKODU GRAMA PANCHAYAT,
CHATHANOOR P.O., PALAKKAD DISTRICT, PIN - 679535
6 THE VILLAGE OFFICER,THIRUMITTACODE-1 VILLAGE,
THIRUMITTACODE, PALAKKAD DISTRICT, PIN - 679533
BY ADV M.G.KARTHIKEYAN(R1)
LIJI J VADAKKEDOM (R5)
SR. GP.REKHA C NAIR(R2, R3, R4, R6)
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
01.07.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Sathish Ninan, J.
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Review Petition No.499 of 2022
==========================
Dated this the 1st day of July, 2022
ORDER
Heard the learned counsel on either sides.
2. The issue involved essentially centers around the functioning of a toddy shop bearing No.40 in Group No.IX in Thrithala Excise Range in Palakkad Division. The review petitioner alleges that the toddy shop is situated within the prohibited distance stipulated under Rule 7(2) of the Kerala Abkari Shops Disposal Rules, 2002. Raising the said complaint, they had approached the Excise Commissioner. The objections were rejected by the Excise Commissioner as per order dated 22.04.2021. The order was challenged by the review petitioner herein, before this Court, in W.P(C) No.8694 of 2021. Finding that the complaints were not heard before passing orders, this Court directed fresh orders to be Review Petition No.499 of 2022 -: 2 :- passed. Pursuant thereto, the Excise Commissioner passed an order dated 10.05.2022 holding that the shop in question is situated within the prohibited distance from a public road and directing the licensee to shift the shop from the present place.
3. Alleging that the licensee - first respondent herein was not heard before passing of the order, he approached this Court in W.P(C) No. 16336 of 2022. Taking note of the fact that the licensee was not heard, the order was set aside and the Excise Commissioner was directed to pass fresh orders with notice to the licensee, complainants and other affected/interested parties, if any. The judgment was passed on 27.05.2022. The judgment is sought to be reviewed by complainant - 5th respondent in the review petition alleging that, the contention of the first respondent - writ petitioner - licensee, that he was not heard before passing of the order dated 10.05.2022, is not correct. Review Petition No.499 of 2022 -: 3 :-
4. Pursuant to the directions of this Court, the Excise Commissioner had called for a report through the Joint Excise Commissioner regarding the factual aspects. The Joint Excise Commissioner had conducted an enquiry with due notice to all the concerned including the licensee of the shop - the first respondent herein. The review petitioner has produced Annexure A2 report of the Joint Excise Commissioner in the said regard. Reference is made by the learned counsel to the last paragraph of the report wherein it is stated that statements of all concerned including the licensee of the shop were taken. It is based on Annexure A2 that the Excise Commissioner has passed the order dated 10.05.2022. Hence the allegation of failure to grant opportunity of hearing is not correct, and hence the judgment dated 27.05.2022 is liable to be reviewed and re-called, is the contention.
5. As noticed supra, Annexure A2 is the report of the Joint Excise Commissioner, on enquiry. While passing the order dated 10.05.2022, the Excise Commissioner has Review Petition No.499 of 2022 -: 4 :- referred to the said report. However, before passing the order dated 10.05.2022 with reference to the said report, admittedly the first respondent - licensee of the toddy shop and the other interested were not heard as was directed by this Court. Therefore, it is only proper that the Excise Commissioner passes fresh orders after affording opportunity of hearing to all the parties concerned. There is no reason to interfere/modify the impugned judgment. There is no error apparent on the face of the record.
6. Let the directions in the judgment dated 27.05.2022 be complied within a period of two months from the date of receipt of a copy of this order.
Review Petition is disposed of accordingly.
Sd/-
Sathish Ninan, Judge vdv APPENDIX OF RP 499/2022 PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE POWER OF ATTORNEY DATED 15.03.2021 Annexure A2 TRUE COPY OF THE REPORT DATED 19.04.2022 SUBMITTED BY THE JOINT EXCISE COMMISSIONER TO THE FIRST RESPONDENT (WITHOUT ANNEXURES MENTIONED THEREIN) Annexure A3 TRUE COPY OF THE DEPOSITION OF THE WRIT PETITIONER TAKEN BY THE JOINT EXCISE COMMISSIONER