AUGUSTINE Vs. RAMAKRISHNAN

JUDGEMENT

(1.) FIFTH respondent in O. P. 9636 of 1993 is the appellant. He is the licensee of Arrack Shop No. 20 of Kothamangalam Range for the year 1993-94 His shop is located within the prohibited distance from Thattekad Siva Temple. But, the temple and the arrack shop belonging to the appellant are situated on cither sides of the Periyar River . The width of the Periyar River is about 200 metres. The writ petitioners approached this Court inter-alia praying for the issuance of a writ of mandamus directing the State and officials of the Excise Department to remove the shop belonging to the fifth respondent-appellant herein from the prohibited distance from the temple. Learned Single Judge, by judgment dated 5-11-1993, directed the Assistant Excise Commissioner, Ernakulam to take action to shift Arrack Shop No. 20 belonging to the appellant to an unobjectionable place. This direction given by the learned Single Judge is under challenge. ,

(2.) THE fact that Thattekad Siva Temple, made mention of in the Original Petition, is a "temple" as defined in Abkari Shops (Disposal in auction) rules, 1974, hereinafter referred to as "the rules", is not in dispute. It is also the common case of parties that the shop belonging to the appellant herein is situated just on the other bank of the Periyar River and is within 400 metres from the temple. It is also the common case of panic that ferry service is being run by the Government between the two banks of the river, where the temple and the shop are situated. As per rule 6 (2) of the Rules, no toddy. arrack or foreign liquor shop shall be located in or remove to a place within 400 metres from an Educational institution, Temple, Church, Mosque or Burial ground. So, as per this rule, the arrack shop belonging to the appellant is situated within the prohibited distance. This fact is also not in controversy. But, the contention raised by the appellant is that in calculating the distance of 400 metres, as per the note to Rule 6 (2), the basis should be the shortest pathway/lane/street/road generally used by the public. If the distance between the temple and the shop is measured through the shortest pathway, lane or road, it will be much more than 400 metres and so, it is contended, the shop will not come within the 400 metres from the temple.