SUBIN K VALSAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Writ petition was preferred by the appellant herein seeking a writ of certiorari to quash Ext. P2 notification dated 7-5-2004 issued by the Government in exercise of the powers conferred under S.18A of the Abkari Act 1 of 1077 read with sub-rule (1) of R.3 and sub-rule (4) and (5) of R.4 of the Kerala Abkari Shops Disposal Rules, 2002 by which foreign liquor retail shop 106 run by the Kerala State Beverages Corporation at Ravipuram within the Ernakulam range was ordered to be transferred to premises at Poothotta within the Tripunithura range in Udayamperoor Panchayat. Writ petitioner is aggrieved by the said order since he is the licensee of toddy shop No. 17 which is located close to the location where FL1 shop is sought to be transferred. In the writ petition, writ petitioner stated as follows :

(2.) In the writ appeal Government filed counter affidavit stating as follows:

(3.) Government have issued the notification allowing the Kerala State Beverages (Manufacturing & Marketing) Corporation Limited and the Kerala State Consumer Federation Limited to locate shops and to sell or supply foreign liquor in such shops to be granted by the Government before the first day of April every year. Kerala State Beverages Corporation has now located the shop No. 106 within the limits of Ernakulam range. The stand of the Corporation is that unless the shop is shifted from the present location to Poothotta, the Corporation cannot profitably run the business. The question to be considered in this case is whether such a plea can be raised by the Corporation after having located the shop in the area earmarked in the gazette notification. Sub-rule (5) of R.4 stipulates that if the Government are satisfied that the number of foreign liquor 1 shops notified under R.4(4) are not sufficient, they may notify additional number of Foreign Liquor 1 Shops in each range or taluk at any time during the financial year. The power can be exercised only after having satisfied that the number of foreign liquor shops are not sufficient within the range. Insufficiency of FL 1 shop in the area already notified is a pre condition for invoking R.4(5). Such a contingency has not happened in this case. The only reason stated by the Government for invoking R.4(5) is that the shop 106 cannot be profitably run in the present area already notified. We are of the view the same is not a reason for invoking R.4(5). Ext. P2 order therefore cannot be legally sustained. However, we find it difficult to grand the prayer since the petitioner is not a FL1 licence holder.