SASEENDRAN Vs. VISWAMBARAN

JUDGEMENT

(1.) THIS Original Petition is filed by the defendant in o. S. No. 456 of 2002 on the file of the Munsiff Court, Cherthala. " (i) To set aside the process issued and orders passed in the suit. (ii) To declare that the statutory authorities under the abkari Act are competent to decide the question whether a toddy shop is located within the prohibited distance from a Temple, and (iii) To declare that the jurisdiction of the civil court is ousted in matters coming under the provisions of the Abkari Act and that the civil suit filed by the plaintiff is not maintainable. " The petitioner is the licence holder of Shop No. 10 of kuthiathodu Range in Alappuzha District. He was granted Ext. P2 licence under the provisions of the Kerala Abkari Act after completing all formalities laid down under the Act and Rules made thereunder and depositing a huge amount. When the petitioner started functioning of the toddy shop the first respondent filed o. S. No. 456 of 2002 before the Munsiff's Court, Cherthala praying for a decree of permanent injunction restraining the petitioner from conducting the toddy shop. Along with the suit, the first respondent filed I. A. No. 1400 of 2002 for an order of temporary injunction restraining the petitioner from conducting the shop at the licensed premises alleging that the toddy shop in question is located within the prohibited distance of 400 meters from Aroor Karthiayani temple. Though the State of Kerala, Assistant Excise Commissioner and Excise circle Inspector, were made parties to the suit, were not made parties to the application for injunction. According to the petitioner, those officers are entrusted with the statutory duty of issuing licence to toddy shops and they are deliberately kept out of the party array. It is averred that an Advocate commissioner deputed by the court below submitted a report and plan without measuring the distance properly. The specific case put forward by the petitioner is that the civil court is not competent to scrutinise the correctness of an action done by the authorities under the Act. But the learned munsiff passed an order of temporary injunction restraining the petitioner from conducting the shop in the plaint schedule building. The petitioner has filed c. M. A. No. 23 of 2002 before the Sub Court Cherthala challenging the order passed in the I. A. and the C. M. Appeal is pending. It is averred that no notice was issued as contemplated under S. 80 of the Code of Civil Procedure. It is also averred that the first respondent did not seek any exemption from the court from serving notice under S. 80 of the Code of Civil Procedure. It is averred that the Abkari Act is a special statute enacted for the purpose of regulating and controlling the manufacture, sale, import, export, transport and possession of intoxicating liquor including toddy and the Government is vested with the power to appoint competent officers for the purpose of giving effect to the provisions of the Act. According to the petitioner the Act is a self contained one which provides opportunity to aggrieved persons for approaching the authorities under the Act and hence when an authority under the Act exercises the powers, that cannot be challenged before a civil court. It is further averred that the common law provisions are not available to the courts in a case where rights are created by special statutes and the authorities under the Act alone can exercise those powers. It is averred that the issue whether the toddy shop is located within the prohibited distance or not is a matter which can be considered and decided by the Excise Commissioner alone. It is contended that the civil court has overstepped its jurisdiction by entertaining the suit and granting the relief which is to be dealt with by the authorities under the Abkari Act alone. Hence the Original Petition for the relief stated above.

(2.) THE first respondent has filed the suit for a decree of permanent prohibitory injunction restraining the petitioner from conducting a toddy shop bearing Door No. 415/ VB of Aroor Panchayath. It is contended that even before the construction of the building is completed a licence was issued to the petitioner to conduct the toddy shop in a building, which is situated 250 meters away from the famous temple by name Aroor Major Karthiayani Temple. THE trial court restrained the petitioner from conducting the toddy shop in the disputed premises as it is situated within the prohibited distance. THE petitioner has filed C. M. A. No. 23 of 2002 before the Sub Court, Cherthala challenging the order of injunction and the same is pending. THEreafter, this original Petition is filed.

(3.) THE learned counsel appearing for the petitioner relied on a decision of the Constitution Bench of the Supreme Court reported in n. P. Ponnuswami v. Returning Officer, Namakkal (AIR 1952 SC 64) in which it was held as follows: "it is now well-recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. " It is well settled position of law that the right to challenge election of an unsuccessful candidate under the provisions of the representation of the People Act is a special right created by the statute and not a common law right. In the Representation of Peoples Act there are necessary provisions for challenging the election of a returned candidate. It was held no Original Petition under Art. 226 of Indian Constitution to quash an order passed by the Returning Officer rejecting a nomination is maintainable before the High Court. So the principle laid down in Ponnuswami' s case can have no application to the facts of this case.