LUKOSE Vs. KARTHIYAYANI

JUDGEMENT

(1.) The petitioner has come up with this writ petition under Art.226 of the Constitution praying for the issue of a writ of mandamus directing respondents 2 and 3, the Assistant Commissioner of Excise, Kottayam, and the State of Kerala, respectively to take immediate necessary action to prevent the 1st respondent, the licensee of toddy shop No. 52 of Mannanam Abkari Range from conducting the said toddy shop in a building comprised in Sy. No 907/14 situated very close to his residence

(2.) The averment in the writ petition in substance is that though toddy shop No. 52 had all along been conducted and, even according to the specifications in the auction notification, was required, to be conducted, in a building which belonged to one Kunneparambil Padmanabhan, situated about a kilometre away from Sy. No. 907/14, instead of conducting it there, it is being conducted in Sy. No 907/14. According to the petitioner, there is a lower primary school and a Guru Mandiram at a distance of less than 400 metres from the building where the toddy shop is being conducted, and, therefore, it is being done in violation of the provisions contained in sub-r.(1) and (2) of R.6 of the Kerala Abkari Shops (Disposal in auction) Rules, 1974 (the Rules). The above mentioned sub-rules of R.6 are as follows:

(3.) The 1st respondent in her counter affidavit has disputed the correctness of the averment in the writ petition that the toddy shop was being conducted in the prohibited area. According to her, there was no school, nor a place of worship, within the prohibited distance of 400 metres. It is also contended that the writ petition has been filed at the instance and instigation of one Parvathi Bhargavi, a coowner of the property comprised in Sy. No. 904/14, who had already filed a suit O. S. No. 49 of 1980 for a perpetual injunction restraining her from using the building in that property for accommodating the toddy shop; she has also averred therein that I. A. No. 242 of 1980 in that suit, for an interim injunction, was heard and dismissed on 17 4 1980; and there is no ground made out for the issue of a writ of mandamus as prayed for in the writ petition.