BALACHANDRAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE complaint in this original petition is regarding the location of foreign liquor shop, FLR No. 220 of Chadayamangalam Range in Kottarakkara circle. The complaint is that it is situate within 400 metres of the Madan Nada temple in Kadakkal, and therefore its situation violates R.6(2)(a)(ii) of the Abkari Shops (Disposal in Auction) Rules. R.6(2) provides inter alia that no foreign liquor shop shall be located outside the limits notified in the gazette under R.4, but with the previous sanction of the Assistant Excise Commissioner, it may be removed from one place to another within such limits, but no such shop shall be located in, or removed to a place within 400 metres of an educational institution, temple, church, mosque or burial ground.

(2.) THERE are certain provisos with which this case is not concerned as no reliance is placed on those provisos by the respondents.

(3.) THE respondents attempt to justify the location of the shop with the plea that the place of worship in this case is not really a "temple" as defined in the Abkari Shops (Disposal in Auction) Rules. It is a Kavu and it is situate in poramboke land. The respondents object to the determination of the age of the banyan tree at 150 by the Commissioner. According to them, the absence of walls for the temple (except at the back) will clearly show that the so called temple is only a Kavu and not a temple. It is therefore stated that there is nothing illegal in locating the shop as done. In support of this contention, two documents, Annexures R3(1) and R3(2) are produced. Annexure R3(1) is a letter from the Village Officer to the Excise Inspector stating that the land to the east of the Kadakkal Bus Stand is porambokke land and that it is there the Madan Nada is situated. Annexure R3(2) is dated 20-9-1991 and informs the Excise Inspector that the Panchayat had not granted permission for the construction of the compound wall on the road side of the Madan Nada