MOHAN Vs. MOIDU

JUDGEMENT

(1.) THIS is an appeal preferred by the second respondent in the writ petition, OP 5794 of 1992 -M. By the judgment dated 7 -7 -1992, the learned single Judge allowed the writ petition filed by the first respondent and issued certain directions.

(2.) THE first respondent writ petitioner is the parent of a student studying in the sixth standard in the Government Raja's High School. Kottakkal. The school has about 3,000 students and also a Parent Teacher -Association. The complaint in the writ petition is that the Excise authorities had granted a licence in favour of the appellant second respondent as per Ext. R2(a) for the excise year from 1 -4 -1992 to 31 -3 -1993 and that the said shop which is a retail foreign liquor shop) is located within 400 metres from the school and, therefore, there is a violation of R.6(2) of the Kerala Abkari Shops (Disposal in Auction) Rules, 1974 (hereinafter referred to as 'the Abkari Rules'). At the instance of the parties, an Advocate -Commissioner was appointed by the learned single Judge in CMP 9853 of 1992 and the Commissioner submitted a report stating that the total distance between the shop and the school inclusive of the public National Highway and the private pathway from the liquor shop to the school building is 482.55 metres. On the basis of the said report, it was contended for the appellant second . respondent before the learned single Judge that the distance between the shop and the school is beyond 400 metres. The learned Judge, after referring to the provisions of R.6(2) of the Abkari Rules and the Note appended thereto, came to the conclusion that the measurement has to be made from gate at the compound wall of the shop to the gate at the compound wall of the school and that it was not permissible to count the distance covered by the two "private pathways". The learned Judge pointed out that the Rule indicates the mode of measurement in the Note to R.6(2) which reads as follows:

(3.) IN this appeal, learned counsel for the appellant has contended that the measurement of the distance by the learned Single Judge is not correct and that the private pathway within the compound of the shop premises as well as the school have also to be counted and if they are also counted, the total distance would be beyond 400 metres. It is pointed out that a view, similar to the view taken by the learned Single Judge in the judgment under appeal was taken by another learned Single Judge in Joseph v. Excise Commissioner, (1988 (2) KLT 913) and the matter is now a subject matter of appeal before the Supreme Court where their Lordships have granted stay. It is also urged that under the proviso to R.6(2) of the Abkari Rules, there is an alternative remedy before the Board of Revenue and the writ petitioner should not have approached this Court without approaching the Board of Revenue. It is also contended that so far as the representations, Exts. P1 to P3 are concerned, there is no proof that they were sent alongwith Ext. P4 to the authorities on the dates mentioned. It is also contended that a - fresh Commissioner should be appointed for measuring the distance from the shop to another gate on the eastern side of the school and that the distance would, definitely, be more than 400 metres and for that purpose, the learned counsel has now filed a fresh petition. It is lastly contended that in another case (Lukose v. Karthiyani -1980 KLT 635), a learned single Judge of this Court, while dealing with a similar question, permitted the shop to be continued till the end of the excise year and that such a direction should be issued in this case also. We shall deal with these contentions one by one. Before we do so, it will be necessary to refer to R.6 of the Abkari Rules.