MATHEW ANTONY Vs. STATE OF KERALA

JUDGEMENT

(1.) Door Nos. 7/594 and 7/597 are in one and the same building. The distance between the two is only seven metres. Both of them are within the prohibited distance of 400 metres from temples, mosques etc. During 1987-88 Door No. 7/597 was a whole sale liquor shop run by one Mr. Kunhikannan. When the Beverage Corporation took over he became a retail dealer. Even thereafter, he continued in the same shop for that abkari year. During 1988-89 and 1989-90 one Mr. Vinod was the retail licensee. He also used the same premises as Kunjikannan surrendered possession to him. During the abkari year 1990-91 one Mr. Rarichan was the successful bidder and licensee. Mr. Vinod did not surrender the building. Hence he used Door No.7/594. Petitioner challenged his licence by filing an original petition on the ground that it is within the prohibited distance. The Original Petition was referred to a Division Bench doubting the correctness of the decision in Premkumar v. Commissioner of Excise ( 1989 (2) KLT 200 ). By the decision in Suresh Babu v. Board of Revenue ( 1991 (1) KLT 543 ) the Division Bench disposed of the matter holding that the licence was improper and illegal as it is in violation of R.6(2)(a) of the Kerala Abkari Shops (Disposal in Auction) Rules, 1974 (for short 'Rules'). But he was allowed to continue in the premises for the rest of the period only because a couple of months alone remained. For the year 1991-92, fourth respondent is the licensee. He is also running the shop in the same premises. This original petition was filed as a public interest litigation for quashing the licence and prohibiting liquor transaction in the same premises on the same ground. The contention of the fourth respondent is that the petitioner is only a name lender set up by Mr. Vinod and he is not having any interest in the locality. In support of that contention it was pointed out that during 1987-88, 1988-89 and 1989-90 when the shop was conducted in the same premises the petitioner did not approach this Court in public interest. Even though on account of the facts mentioned above, I also feel some sort of doubt in the bona fide of the public interest claimed by the petitioner. I do not think that it is relevant for the purpose of disposing of this original petition.

(2.) The decision in 1991 (1) KLT 543 was very much relied on by the petitioner in order to contend that the matter is finally concluded as it relates to the same door number. If the law laid down in that decision continues to govern the field the fourth respondent may not be able to contend otherwise simply on the grounds that he was not a party or that the present petitioner is only a name lender as the question to be decided is only the prohibition by the rules. .

(3.) In that case the licensee relied on the second proviso to R.6(2)(a) which said that in spite of the prohibition the retail shop could be located in the place, if it was located there during the abkari year 1988-89 In 1988-89 the shop was not located in the same door number as it was in Door No.7/597, even though both are in the same building and the distance between the two is only seven metres. The Division Bench said that the second proviso which is in the nature of an exception of R.6(2)(a) permits licensing of a foreign liquor retail shop at a place within 400 metres of educational institutions etc. only if that is a place where the shop was located and licensed during the abkari year 1988-89. The Division Bench also held that inorder to apply the proviso both the places must be the same. In other words the view taken was that the proviso could apply only if the two places are exactly identical in all respects. The Division Bench considered the decision in 1989 (2) KLT 200 and said that even if the previous place was within the vicinity of the present location and the distance is only too short, identity of place cannot be there and therefore the proviso cannot apply. Therefore it was argued by the petitioner that the places are not one and the same and hence proviso has no application.