SUDHEESH KUMAR Vs. COMMISSIONER OF EXCISE

JUDGEMENT

(1.) This is a pubic interest litigation filed challenging Ext. P2 whereunder the Commissioner of Excise has reconfirmed entitlement of the party Respondent to carry on toddy business in the toddy shop located on the road side in Thiruvallam. The Petitioner's specific case is that the toddy shop is functioning within the prohibited distance from a temple and so much so, licence issued is in violation of Rule 7(2) of the Abkari Shops Disposal Rules, 2002 (hereinafter called "the Rules"). In the first round of litigation this Court directed the Commissioner to consider whether Petitioner's allegation is true and if so, to recall the licence. However, the Commissioner has thereafter considered the matter and even though he came to the conclusion that the toddy shop is within 338 metres i.e. prohibited distance from the Padayarakam Nagarkavu, he still permitted the licencee to continue the toddy shop because according to him, the said Kavu does not answer the description of "temple" as defined under the Abkari Rules.

(2.) Counsel for the Petitioner has relied on Commission Report submitted by Advocate Commissioner appointed by this Court wherein he has confirmed the existence of the Kavu and according to him, it is within 267 metres from the toddy shop. Photographs of the Kavu produced in Court show that it is a pucca concrete building with a long shed constructed with steel pipes and corrugated sheet roof for the large number of people to stand and offer prayers without being affected by sun and rain. The photograph shows that the Kavu is a typical temple with a tall metal lamp installed in the foreground and a hundi is also installed in the front side of the Kavu for people to make offerings. Even though there is variance in the finding of the Commissioner in Ext. P2 and in the Advocate Commissioner's report about the distance within which the Kavu is located from the toddy shop, we do riot think the difference has any significance because even according to the Commissioner's order, the Kavu is located within prohibited distance of 400 metres as according to him it is located only 338 metres away from the toddy shop, whereas according to the Advocate Commissioner's report, the distance between the toddy shop and the Kavu is only 267 metres. If the Kavu answers the description of "temple" under the Rules, then certainly the Commissioner's order is liable to be vacated and the licence issued should be cancelled. Rule 7(2) of the Rules specifically bars granting of licence to toddy shops located within 400 metres of any Educational Institution, Temple, Church, Mosque, Burial ground and Scheduled Caste / Scheduled Tribes Colonies. The only question that calls for our decision is whether the kavu answers the description of "temple" as defined under Rule 2(m) of the Rules which is as follows:

(3.) Government Pleader and counsel appearing for the party Respondents contended that the Kavu is located in a private property and so much so, it cannot be said to be a place of public worship which alone can be called a "temple" under Rule 2(m) of the Rules. We are unable to accept this because what is relevant is whether the Kavu or Temple involved is a place of public worship by Hindus. Ever so many temples in Kerala are located in private properties and several such temples are managed by trusts or even individuals. What is important is not the location of ownership of the temple, but whetherthe temple is open for worship by public and if so, such place of worship answers the description of temple, no matter it is located in private property. So much so, this argument of the Government Pleader is unacceptable and we reject the same.