M/S. MARY MATHA Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is running a beer and wine parlour on the strength of a licence obtained by them in form FL- 11 of the Foreign Liquor Rules framed under the Abkari Act. There is a puramboke canal on the southern side of the property of the petitioner wherein the licenced building is situated. The petitioner has taken on rent a building situated on the further south of the canal for the purpose of making use of the said building also for the beer and wine parlour. The permission of the competent authority is required for the said purpose under Rule 16(1) of the Rules. The petitioner applied for the permission. Along with the application, the petitioner produced Ext.P2 No Objection Certificate issued by the concerned Tahsildar and Ext.P3 permission granted by the local authority for constructing a temporary bridge connecting the property of the petitioner as also the property in which the leased building is situated. Though respondents 3 and 5 have recommended the application preferred by the petitioner for the said purpose, as per Ext.P9 order, the Commissioner of Excise has rejected the application of the petitioner. The petitioner though challenged Ext.P9 order in revision before the Government, Ext.P9 order has been confirmed. Ext.P10 is the order issued by the Government in this connection. Exts.P9 and P10 orders are under challenge in this writ petition. 2. Heard the learned counsel for the petitioner as also the learned Government Pleader. 3. The operative portion of Ext.P9 order of the Commissioner of Excise reads thus: "The above matter has been examined in detail. As per rule, if any changes intended to be made in the licenced premises only come under the purview of Excise Commissioner. The building proposed to be added is not adjacent to the licenced premises. There is a puramboke canal separating the two lands. The iron bridge intended to be constructed is outside the licenced premises and over the canal absolutely in puramboke land. Hence Excise Commissioner is not the competent authority to accord sanction for the construction of bridge over the puramboke canal." 4.The extracted portion of Ext.P9 order indicates that the view taken by the Commissioner of Excise is that since the building of the petitioner and the building proposed to be added by the petitioner to the licence lies in two properties separated by a puramboke canal, the permission sought cannot be granted. The fact that the Commissioner of Excise has the authority to grant permission to add an additional building to the licence is not in dispute. There is no rule which interdicts the Commissioner of Excise from adding a building to the licence which is situated in the adjacent property. There is also no rule which interdicts the Commissioner of Excise from adding a building in a property separated by a puramboke canal. As noted above, the local authority has granted permission to the petitioner to construct a temporary bridge connecting the properties on the strength of the No Objection Certificate given by the revenue officials. In the circumstances, I am of the view that the permission sought by the petitioner should have been granted by the Commissioner of Excise. Coming to Ext.P10 order of the Government, the same does not contain any reasons. The impugned orders, in the circumstances, are unsustainable. 5. In the result, the writ petition is allowed, the impugned orders are set aside and the Commissioner of Excise is directed to accord the permission sought by the petitioner. This shall be done within six weeks from the date of receipt of a copy of this judgment.