STATE OF KERALA Vs. LUKOSE

JUDGEMENT

(1.) For several years prior to 1980-81 Toddy Shop No. 52, Mannanam 9, Ettumanoor Excise Range was located in property having survey No. 908/1A. Since the owner of the property raised objection against the continued functioning of the toddy shop there it was announced by the Departmental authorities prior to the auction sale for the year 1980-81 that the toddy shop would not be allowed to be located in survey No 908/1A. In the abkari auction sale held for the year 1980-81, the 2nd respondent in this appeal was the highest bidder and as such entitled to vend toddy in accordance with the provisions contained in the Abkari Act 1 of 1077 and Rules thereunder. On coming to know that the 2nd respondent was taking steps. For locating the toddy shop in the property in Survey No. 907/14/1 of Mannanam Village a complaint, Ext. P1 was filed on 31st March 1980, by the first respondent and five other persons who are living close to that item, before the District Collector, bringing to his notice the existence of a lower primary school, a place of worship, S. N. D. P. Gurumandiram and a Public Library (Kumaranasan Memorial Public Library), very near the said property and requesting him to see that the toddy shop was not located in the above said property, which according to the 2nd respondent is situated one kilometre away from the place mentioned in the notification for auction sale. A similar petition, evidenced by Ext. P2, also was filed by the concerned member of the Panchayat stating that the distance between the lower primary school from the new site of the toddy shop is only 342 metres which is much less than the distance stipulated under the Abkari Shops (Disposal in Auction) Rules, 1974. No action was taken on the petitions by the authorities. On the toddy shop being shifted to Sy. No. 907/14/1, a suit O. S.49 of 1980 was filed before the Munsiff's Court, Ettumanoor by Parvathi Bhargavi, a coowner of the property for a perpetual injunction for restraining the 2nd respondent from using the building in the property for accommodating the toddy shop. Though an interim injunction was prayed for, it was not granted because the 2nd respondent had already started using the property for the toddy shop. The 1st respondent thereupon filed O. P. 1362 of 1980 before this Court for the issue of a writ of Mandamus or such other appropriate order or direction, directing the Assistant Commissioner of Excise, Kottayam and the State of Kerala (the appellants in this appeal) to take immediate necessary action to prevent the 1st respondent from conducting the toddy shop No. 52 in Sy. No. 907/14 of Mannanam village According to the 1st respondent the conducting of the toddy shop in the said premises is in violation of the provisions contained in R.6(1) and (2) of the Kerala Abkari Shops (Disposal in Auction) Rules, 1974. The 2nd respondent and the officers of the Excise Department have the statutory duty to comply with the provisions contained in the Abkari Act and the Rules mentioned since the authorities exhibited an attitude of indifference; it became necessary that they should be corrected by initiating judicial process.

(2.) In the counter affidavit filed by the Assistant Commissioner of Excise and the State they denied that the toddy shop was situated within a distance of 409 metres from the lower primary school and the Guru Mandiram. A contention was also raised that the 1st respondent had no locus standi to maintain the Original Petition since he could not be said to be a person aggrieved.

(3.) The learned Single Judge who disposed of the case held that the 1st respondent, if not directly interested was at least indirectly interested in the subject matter, and as such had the locus standi to maintain the Original Petition. It came out that as per Ext. P4 the Commissioner's report filed in O.S. No. 49 of 1980 the distance from the toddy shop to the lower primary school as the crow flies is 347.17 metres and the distance through road was 372 metres. The learned Judge held that in the absence of indications whether measurements should be taken as the crow flies or through the road, S.10 of the Interpretation and General Clauses Act, 1125, corresponding to S.11 of the General Clauses Act, 1897 (Central) applied to the case and the measurement should be taken in a straight line on a horizontal plane. The Court however held that since the toddy shop was being conducted for about 4 months in the premise in Sy. No. 907/14, the ends of justice would be met if a direction was given to the respondents in the Original Petition that on the expiry of the period of licence on 31st March 1981 the shop should not be allowed to be conducted in the premises in Sy. No. 907/14, unless an officer not below the rank of the Assistant Commissioner of Excise satisfies himself personally that the distance between the school and the building in which the toddy shop is to be conducted is outside the distance of 400 metres measured in a straight line on a horizontal plane or as the crow flies. The present appeal is filed by the State of Kerala and the Assistant Commissioner of Excise challenging the above decision.