MURALEEDHARAN NAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioners are aggrieved by the shifting of toddy shop No. 15 of Mavelikkara Range to Building No. T.P.XII 753 situated in RS No. 268/11 of Vettiyar Village, which is being conducted by the 6th respondent as licensee. According to the petitioners, the present location of the toddy shop is within the prohibited distance under Rule 7(2) of the Kerala Abkari Shops Disposal Rules 2002 ("the Rules" for short), from a mosque. The petitioners therefore seek quashing the order dated 25.4.2006 passed by the 4th respondent allowing shifting of the toddy shop No. 15 of Mavelikkara Range to the above said building. Related reliefs are also prayed for.

(2.) Essentially the question is whether the present building is within the prohibited distance under Rule 7(2) of the Rules. The mosque referred to by the petitioners is the Hidayathul Islam Jamayath (West) Vettiyar. The 6th respondent has filed a counter affidavit refuting the contentions of the petitioners. According to the 6th respondent, the mosque is situated beyond 450 meters from the toddy shop which is in excess of the distance mentioned in Rule 7(2). Although the petitioners have filed a reply affidavit, reiterating that the mosque is situated within less than 350 meters, no attempt has been made before me to prove the same. The authorities of the mosque have not chosen to file any complaint or approach this court. The learned Government Pleader submits that the license was issued after properly verifying the fact as to whether the toddy shop is within the prohibited distance or not. According to the learned Government Pleader, it is not. The question whether the mosque is situated within the prohibited distance under Rule 7(2) of the Rules or not, is purely a question of fact, which the petitioners have to prove by adducing evidence. Apart from the affidavit of the petitioners, which has been controverted by the 6th respondent by filing a counter affidavit, there is absolutely no material before me for coming to the conclusion that in fact there is a mosque within the prohibited distance from the toddy shop in question.

(3.) The learned Counsel for the petitioner raised another ground relating to the competency of the Assistant Excise Commissioner to pass the impugned order. According to the counsel, the Assistant Excise Commissioner does not have power to permit shifting of toddy shops from one place to another within the notified limits. The counsel would submit that the power to order shifting vests exclusively with the Commissioner of Excise under Rule 7(3) of the Kerala Abkari Shops Disposal Rules, 2002 and, therefore, the order now passed by the Assistant Excise Commissioner is without jurisdiction and, therefore, unsustainable.