K.G.Martin vs State Of Kerala
2021 Latest Caselaw 14595 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
              THE HONOURABLE MR. JUSTICE SUNIL THOMAS
  WEDNESDAY, THE 14TH DAY OF JULY 2021 / 23RD ASHADHA, 1943
                      WP(C) NO. 6590 OF 2021
PETITIONER:

          K.G.MARTIN
          AGED 62 YEARS
          S/O. GEORGE, KARINGADU HOUSE, OOCHANTHURUTH P.O.,
          VALAPPU, ERNAKULAM DISTRICT 682 508.

          BY ADVS.
          K.B.GANGESH
          SMT.SMITHA CHATHANARAMBATH
          SRI.AMAL S KUMAR
          SMT.ATHIRA A.MENON

RESPONDENTS:

    1     STATE OF KERALA
          REPRESENTED BY THE SECRETARY, DEPARTMENT OF EXCISE,
          SECRETARIAT, THIRUVANANTHAPURAM 695 001.

    2     COMMISSIONER OF EXCISE
          EXCISE HEAD QUARTERS, PALAYAM,
          THIRUVANANTHAPURAM 33.

    3     DEPUTY COMMISSIONER OF EXCISE.
          EXCISE DIVISION OFFICE, ERNAKULAM, 682 019.

    4     EXCISE CIRCLE INSPECTOR,
          EXCISE CIRCLE OFFICE, KOCHI, ERNAKULAM, 682 018.

    5     ELAKUNAPPUZHA GRAMA PANCHAYATH,
          REPRESENTED BY ITS SECRETARY, ELAKUNNAPPUZHA P.O.
          MALIPPURAM, VYPPIN, ERNAKULAM 682 503.

    6     KERALA STATE BEVERAGES ( M AND M) CORPORATION
          LIMITED,
          BEVCO TOWER, VIKAS BHAVAN, P.O. PALAYAM,
          THIRUVANANTHAPURAM 695 033, REPRESENTED BY ITS
 WP(C) NO. 6590 OF 2021
                                     2

             CHAIRMAN.

             BY ADV SRI.P.M.BENZIR
OTHER PRESENT:

             SC, SRI.T.NAVEEN,SR.GP BIMAL K NATH

      THIS    WRIT       PETITION   (CIVIL)   HAVING   COME    UP    FOR
ADMISSION     ON     14.07.2021,    THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 WP(C) NO. 6590 OF 2021
                                    3




                             JUDGMENT

Dated this the 14th day of July 2021

The petitioner is aggrieved by the shifting of a FL1

No.07029/2018-19 beverages outlet to another building

in Elakunappuzha Village. His grievance is that though

he has filed Ext.P10 and Ext.P11 objection against the

shifting, they have not been considered even now. It

seems that the Panchayath raised an objection by

Ext.P9. The main contention of the petitioner is that

the distance rule is violated in so far, as an SC-ST

colony and a Church exist within the objectionable limit

from the proposed outlet. Measurement taken out by

the Excise Circle Inspector evidenced by Ext.P6,

indicates that the Church is at a distance of 203 meters

and there is no SC-ST colony within the objectionable

distance of 200 meters from the proposed outlet.

2. The Panchayath seems to have relied on a

report of the LSG Assistant Engineer dated 13.08.2020,

which is referred to in Ext.P9 proceedings of the WP(C) NO. 6590 OF 2021

Panchayath, whereby, they objected to the shifting of

the outlet.

3. It is admitted by both sides that Ext.P8 and

Ext.P9 proceedings has been set aside by another

bench of this Court in another Writ Petition. Learned

Senior Government Pleader justified the reference made

in Ext.P6 by contending that, the most competent

authority who is the Excise Circle Inspector, has

measured it in accordance with the rules, whereas the

measurement made by LSG Assistant Engineer may not

be strictly in accordance with the parameters laid down

for evaluating the distance rule. It is submitted by the

learned Standing Counsel for the Beverages Corporation

that the shop has existing license, which is to expire

only in 2022 and they have made all arrangements to

shift.

4. Having considered this, I feel that the entire

issue has to be given a quietus finally. Since this

factual dispute alone remains and two reports exist, I

feel it worthwhile to direct the second respondent to WP(C) NO. 6590 OF 2021

cause a measurement to be taken by another Excise

Inspector in accordance with the Rules and also to

dispose of Ext.P10, after giving a reasonable to the

petitioner within a period of two weeks from the date of

receipt of a copy of this judgment. While disposing of

Ext.P10, the second respondent shall also rely on the

report of the Excise Inspector, so obtained in the

meanwhile. This will put an end to the Ext.P11

representation also. The commencement of the outlet

shall be kept in abeyance till the final orders are

passed.

The Writ Petition is disposed of accordingly.

Sd/-

SUNIL THOMAS

JUDGE SKP/14-7 WP(C) NO. 6590 OF 2021

APPENDIX OF WP(C) 6590/2021 PETITIONER'S EXHIBITS:

EXHIBIT P1 PHOTOGRAPHS OF THE PETITIONER'S RESIDENCE AND THE PROPOSED FOREIGN LIQUR OUTLET.

EXHIBIT P2 PHOTOGRAPH OF THE ENTRANCE TO OCHANTHURUTH VETTUVA COLONY.

EXHIBIT P3 PHOTOGRAPH OF THE ENTRANCES TO THE CHURCH OF OUR LADY PERPETUAL.

EXHIBIT P4 TRUE COPY OF A SKETCH SHOWING DISTANCE OF VARIOUS INSTITUTIONS FROM THE PROPOSED FOREIGN LIQUOR OUTLET.

EXHIBIT P5 TRUE COPY OF ORDER NO. E4-5532/2020 DATED 29.07.2020 ISEUD BY THE 3RD RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE REPORT DATED 25.07.2020 SUBMITTED BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT.

EXHIBIT P7 TRUE COPY OF REPORTED DATED 02.02.2021 OF THE 4TH RESPONDENT.

EXHIBIT P8 TRUE COPY OF ORDER NO. A5-6487/2020 DATED 30.07.2020 ISSUED BY THE 5TH RESPONDENT PANCHAYATH TO THE 6TH RESPONDENT.

EXHIBIT P9 TRUE COPY OF ORDER DATED 19.08.2020 ISSUED BY THE 5TH RESPONDENT PANCHAYATH AGAINST 6TH RESPONDENT.

EXHIBIT P10 TRUE COPY OF COMPLAINT DATED 05.08.2020 PREFERRED BY THE PETITIONER TO THE 2ND RESPONDENT.

WP(C) NO. 6590 OF 2021

EXHIBIT P11 TRUE COPY OF OBJECTION DATED 25.08.2020 PREFERRED BY THE PETITIONER TO THE 3RD RESPONDENT.

RESPONDENTS EXHIBITS:

EXHIBIT R5(A) PHOTOCOPY OF THE COMPLAINT DATED 14.08.2020 SUBMITTED BY THE OCHANTHURUTH VETTUVA SABHA.

EXHIBIT R5(B) PHOTOCOPY OF THE COMPLAINT DATED 10.08.2020 SUBMITTED BY THE VICAR, CHURCH OF OUR LADY OF PERPETUAL HELP.

EXHIBIT R5(C) PHOTOCOPY OF THE COMPLAINT DATED 07.08.2020 SUBMITTED BY THE CARMEL ENGLISH MEDIUM HIGH SCHOOL.

EXHIBIT R5(D) PHOTOCOPY OF THE REPORT DATED 13.08.2020 BY THE ASSISTANT ENGINEER, LSGD, ELANKUNNAPUZHA SECTION.

EXHIBIT R5(E) PHOTOCOPY OF THE APPLICATION DATED 30.07.2020 SUBMITTED BY THE 6TH RESPONDENT BEFORE THE 5TH RESPONDENT.

TRUE COPY P.A. TO JUDGE