FALGUNAN Vs. ASST EXCISE COMMISSIONER

JUDGEMENT

(1.) Petitioner is conducting a foreign liquor shop building No.45/XXV of Trichur Municipality. Petitioner had applied for licence to conduct the liquor shop in this building. His application was rejected by the first respondent, the Assistant Excise Commissioner, Trichur on the ground that it is located within 400 metres from the Sree Vadakkumnnatha Temple, Trichur. Petitioner approached this Court by filing O.P.5011 of 1993 challenged the validity of the distance rule contemplated under R.6(2)(a) of the Abkari Shops (Disposal in Auction) Rules. An interim order was passed in favour of the petitioner and he continued his business in that building. While so, the first respondent filed W.A.No.546/93 alleging that petitioner's shop is functioning in violation of R.6(2)(a) of the Rules. The Division Bench by judgment dated 28-5-93 held that the southern gate of Sree Vadakkumnnatha temple normally remain closed and it is opened only on two days in the year in connection with Sivarathri festival. So for taking distance from gate to gate the southern gate should not be taken into consideration. Petitioner was allowed to carry on his business in that same shop.

(2.) Then the first respondent sought a clarification from the Division Bench stating that the petitioner's shop fell within the distance of 400 metres from Manikandanal Sree Subramania temple. The Division Bench clarified that the judgment dated 15-10-93 dealt with only the question whether the petitioner's shop was within the prohibited distance of Sree Vadakkumnnatha temple. Petitioner herein raised objection that Manikandanal Sree Subramania temple is not a temple as defined under R.(2ka) of the Kerala Abkari Shops (Disposal in Auction) Rules. The Division Bench permitted the first respondent to take fresh decision and the petitioner herein was allowed to raise all objections.

(3.) The first respondent thereafter considered the question and held that Manikandanal Sree Subramania temple is a temple which satisfies all the ingredients of the definition of temple given in R.2(ka) of the Rules. Petitioner's shop is within 400 metres of this alleged temple and therefore the licence of the petitioner to conduct foreign liquor shop in this building was cancelled vide Ext. P17 order. Ext. P17 order passed by the first respondent is challenged in this Original Petition.