SURESH BABU Vs. BOARD OF REVENUE

JUDGEMENT

(1.) These two writ petitions have been referred to the Division Bench by Justice Sreedharan on the ground that he finds it difficult to agree with the view taken by Justice Thomas in the decision reported in Premkumar v. Commissioner of Excise, ( 1989 (2) KLT 200 ).

(2.) The petitioners in these two writ petitions have invoking the jurisdiction of this Court under Art.226 of the Constitution of India challenged the grant of licence for the foreign liquor retail shop in respect of Shop No.186/90-91 for the period from 1-6-1990 to 31-3-1991, in favour of respondent No.4. The licensed premises is Door No.7/594 in Oyitti Road, Calicut. The petitioners who are citizens residing in the locality contend that the grant of licence in favour of the 4th respondent to conduct the Foreign Liquor Retail Shop in the said premises namely, Door No.7/594 is illegal on the ground that the same is located within the prohibited distance of 400 metres from temples, churches and mosques, prescribed by R.6(2)(a)(ii) of the Kerala Abkari Shops (Disposal in Auction) Rules, 1974, hereinafter referred to as the Rules. With a view to establish their case that the licensed premises is located within the prohibited distance of 400 metres from temples and mosques, a Commissioner was got appointed in these proceedings, who, after visiting the place and taking the measurements submitted a report to the effect that there are temples and mosques within a distance varying from 215 to 230 metres from the licensed premises. There is no dispute about the correctness of the report made by the Commissioner. We have therefore to proceed on the basis that the licensed premises is located within 400 metres from the temples and mosques. The stand taken by the 4th petitioner is that the grant of licence to the 4th respondent is clearly opposed to R.6(2) (a) (ii) of the Rules. The 4th respondent, however, submits that the grant of licence in his favour is justified relying upon the second proviso to R.6(2) (a) of the Rules which permits location and licensing of premises of toddy shop, arrack shop, its allowed sub-shops and foreign liquor retail shops within the prohibited distance of 400 meters, if a toddy shop, arrack shop or foreign liquor retail shop was located and licensed in the said premises during the Abkari year 1988-89. It is their case that during the Abkari year 1988-89, one Sri. Vinod had obtained foreign liquor retail licence and was conducting the foreign liquor retail shop in the premises bearing door No. 7/397, corresponding to the new number 7/597. As the premises in respect of which licence has been granted and the shop located by the 4th respondent is the premises bearing Door No.7/594, realising that the licensed shop of Sri Vinod during the Abkari year 1987-88 was located in the premises bearing Door No.7/597, the stand taken is that the distance between the two premises is only 7 metres and the landlord being the same, we must draw the inference that the place in respect of which licence has been granted in favour of the 4th respondent Sri Rarichan for the Abkari Year 1990-91 must be regarded as the same place. If the 4th respondent is right in his contention, it is maintained that the grant of licence in favour of the 4th respondent in respect of the premises located within a distance of 400 metres from temples and mosques would be justified, having regard to the second proviso to R.6(2) (a) of the rules. In support of this stand, the 4th respondent has relied upon the decision of the learned single Judge in Premkumar's case (1989 (2) KLT 200). The view taken by the learned single Judge in the said decision is that if the previous building was situated within the vicinity of the present building and the distance between the two is relatively trivial, the two buildings can reasonably be held to remain in the same place for practical purposes. In other words, the view taken by the learned single Judge in Premkumar's case is that there is no need for the application of the second proviso to R.6(2)(a) for the two premises to be identical. We are called upon to examine the correctness of this view taken by the learned single Judge.

(3.) The general conditions applicable to the toddy, arrack and foreign liquor retail shops are prescribed in R.6 of Chapter V of the Rules. For the sake of convenience, we will extract the relevant portion of the rule as follows: