KERALA STATE BEVERAGES Vs. STATE OF KERALA

JUDGEMENT

(1.) The aforesaid writ petitions are filed in respect of operation of FL-1 shop No.7054 in Kothamangalam Municipality, as per the provisions of the Foreign Liquor Rules, 1953, and the Kerala Abkari Shops Disposal Rules, 2002. W.P.(C) No.4439 of 2017 is filed by the Kerala State Beverages (Manufacturing and Marketing) Corporation Ltd., the licensee, seeking to quash Ext.P4 communication issued by the Kothamangalam Municipality dated 07.02.2017, whereby the license sought for to run the foreign liquor shop was declined. Whereas, the other writ petition is field by a Residents' Association, objecting to the license provided to the Corporation to run the FL-1 shop in the residential area, in the building bearing Door No.IV/90 and 91, situated within the 3rd respondent Municipality, contending it is situated in a residential area, and within the prohibited distance of a Hindu worship centre owned by the SNDP Karingazha Branch No.209, situated within 100 metres from the building in question. Facts in common for the disposal of the writ petitions are as follows:

(2.) Kerala State Beverages (Manufacturing and Marketing) Corporation Ltd., a company owned by the State Government, was granted with the privilege to run FL-9 license for wholesale distribution and FL-1 license for retail sale. The said Corporation has initially established a FL-1 shop No.7054 at Kothamangalam Municipality in the year 2001, and the shop was being carried on by securing requisite licenses from the appropriate statutory authorities. While so, consequent to the directives contained in the judgment of the apex court in 'State of Tamil Nadu and others v. K. Balu and another' [2017 (1) KHC 26 (SC)], the shop had to be shifted, since it violates the distance rule prescribed thereunder.

(3.) Thereupon, the Corporation has identified the new building specified above and moved the Excise Department for permission to shift the shop to the new building. The Excise Department accorded sanction to shift the shop, evident from Ext.P2 proceedings dated 23.01.2017 of the Deputy Commissioner of Excise, Ernakulam. According to the Corporation, thereupon it commenced its operation after submitting an application before the Kothamangalam Municipality for securing the Trade License under Sec.447 of the Kerala Municipality Act, 1994, evident from Ext.P3. It is the contention of the Corporation, no permission is required from the Municipality in order to re-establish a licensed shop within the scheduled limit, if the same was originally established before 25.11.2012, in the light of the provisions contained under Sec.447(10) of the Municipality Act, which stipulates that the provisions of sub-sections (7) to (9) shall not be applicable to any Abkari Shop existing on 25.11.2012, i.e. the date of commencement of the Kerala Municipality (Second Amendment) Ordinance, 2012 or subject to all existing legal provisions for re-establishing the toddy shops existing on the said date, in the area within the boundaries allotted for establishing them. Therefore, according to the Corporation, no approval from the Municipality is required.