Kerala High Court
R.Rajesh vs The Excise Commissioner on 26 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
FRIDAY, THE 26TH DAY OF FEBRUARY 2021 / 7TH PHALGUNA, 1942
WP(C).No.19845 OF 2020(E)
PETITIONER:
R.RAJESH, AGED 46 YEARS
S/O.REVEENDRAN, THEKKEL HOUSE,
AREEKUZHA KARA, MANAKKAD VILLAGE,
THODUPUZHA TALUK, IDUKKI DISTRICT.
BY ADVS.
SRI.M.G.KARTHIKEYAN
SRI.NIREESH MATHEW
RESPONDENTS:
1 THE EXCISE COMMISSIONER
COMMISSIONERATE OF EXCISE,
THIRUVANANTHAPURAM-695 033.
2 THE DEPUTY COMMISSIONER OF EXCISE,
IDUKKI, OFFICE AT THODUPUZHA, PIN-685 581.
3 THE CIRCLE INSPECTOF OF EXCISE,
THODUPUZHA, IDUKKI DISTRICT, PIN-685 581.
4 THE KODIKKULAM GRAMA PANCHAYATH,
KODIKULAM, THODUPUZHA, PIN-685 582,
IDUKKI DISTRICT, REPRESENTED BY ITS SECRETARY.
5 THE VILLAGE OFFICER,
KODIKULAM VILLAGE, KODIKULAM,
THODUPPUZHA, IDUKKI DISTRICT, PIN-685 582.
6 THE TAHSILDAR (SURVEY),
TALUK OFFICE, THODUPUZHA,
IDUKKI DISTRICT, PIN-685 584.
OTHER PRESENT:
SR.GP K.P HARISH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-02-
2021, THE COURT ON 26-02-2021 DELIVERED THE FOLLOWING:
W.P(C).19845 of 2010
2
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
W.P(C).19845 of 2010
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
W.P(C).19845 of 2010
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, which are not produced. Evidently, there is nothing on
record to show that the second respondent has considered the
application, applied his mind and rejected the prayer. Evidently, the
order seems to have been passed by the third respondent who is not the
competent authority to pass orders on Ext.P2 application.
W.P(C).19845 of 2010
6. Having considered above, I find that the contention set up by
the petitioner in this regard is sustainable. The impugned order is
liable to the set aside on that ground. Consequently, the question
whether the building fall within the objectionable limit or not, is a
matter to be independently considered by the second respondent.
In the result, Writ Petition is allowed. Ext.P7 stands set
aside. Second respondent shall take up Ext.P2 application on the basis
of the materials available on record and shall pass appropriate orders
on Ext.P2 in accordance with law within a period of one month from the
date of receipt of a copy of this judgment.
Writ Petition is allowed as above.
Sd/-
SUNIL THOMAS
Sbna JUDGE
W.P(C).19845 of 2010
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 PHOTOCOPY OF THE CONSENT LETTER GIVEN BY
ONE SANTHOSH FOR CONDUCTING THE TODDY SHOP.
EXHIBIT P2 PHOTOCOPY OF THE APPLICATION DATED
24.06.2020 SUBMITTED TO THE 2ND RESPONDENT
THROUGH THE 3RD RESPONDENT.
EXHIBIT P3 PHOTOCOPY OF THE LETTER DATED 10.08.2020
ISSUED BY THE 5TH RESPONDENT TO THE 3RD
RESPONDENT.
EXHIBIT P4 PHOTOCOPY OF THE LOCATION MAP ISSUED BY THE
5TH RESPONDENT.
EXHIBIT P5 PHOTOCOPY OF THE LETTER DATED 06.08.2020
ISSUED BY THE 6TH RESPONDENT TO THE
LANDLORD OF THE BUILDING, SRI.SANTHOSH.
EXHIBIT P6 PHOTOCOPY OF THE JUDGMENT DATED 05.03.2020
IN WPC NO.2479/2020 PASSED BY THIS HON'BLE
COURT.
EXHIBIT P7 PHOTOCOPY OF THE ORDER DATED 18.08.2020
PASSED BY THE 3RD RESPONDENT.
