MOHANAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Fourth respondent in O. P. 6430/1993 is the appellant. That Original Petition was filed by three petitioners questioning the conduct of Toddy Shop No. 107/91-94 of Aluva Excise Range. According to the writ petitioners, fourth respondent was conducting the shop in violation of the provisions contained in the Kerala Abkari Shops (Disposal in Auction, Rules, 1974, hereinafter referred to as "the Rules", inasmuch as it is located within the prohibited distance from St. Antony's Church, Aluva, a Mosque and St. Mary's High School. Consequently writ petitioners prayed for a writ of mandamus directing respondents 1 to 3 in the Original Petition, who are the State of Kerala, Board of Revenue and Assistant Commissioner of Excise, Ernakulam respectively, to cancel the licence issued to the 4th responded to run the Toddy Shop in Survey No.261/I-A of Aluva Village. Learned Single Judge by judgment dated 2-8-1993 directed third respondent to take appropriate action as per the provisions contained in the Rules within a reasonable time. The appellant - fourth respondent questions the said decision in this appeal.

(2.) The main arguments advanced by the learned counsel representing the appellant are as follows. The licence granted to the appellant was for three years from 1991 to 1994. At the time of the grant, it was legal and valid in terms of the Rules. The subsequent amendment of the Rules cannot adversely affect the appellant's licence. The State and its officers are estopped from interfering with his licence during its period. They are barred by the principle of promissory estoppel from interfering with the conduct of business in the licensed premises. The unexpired period of the licence is only for a few months, till the end of March, 1994. Appellants is entitled to carry on the business in the premises till the expiry of that period. We shall proceed to deal with these contentions herein below.

(3.) Appellant got a licence to run a Toddy Shop in Survey No. 261/I-A of Aluva Village. The licence was for a period of three years, from 1-4-1991 to 31-3-3994. Toddy shop was being located in the same property during the previous abkari years. Consequently as per the provisos to R.6(2) of the Rules the Toddy Shop could be located in Survey No. 261/I-A. The said provisos were deleted with effect from 1-4-1993. The amendment so brought out to R.6(2) of the Rules was challenged before this Court in a batch of writ petitions. This Court by judgment dated 25-6-1993 upheld the amendment of the Rules. Consequently, after 1-4-1993 no one can claim protection on the basis of the provisos which have been deleted. The consequence, therefore, is that no Toddy, Arrack or Foreign Liquor Retail Shop shall be located within 400 metres from an educational institution, Temple, Church, Mosque or Burial Ground. It is the admitted case that Toddy shop No. 107/91 - 94 run by the appellant, is situated within the prohibited distance from a Church, a Mosque and an educational institution.