THILAKAN P N Vs. COMMISSIONER OF EXCISE

JUDGEMENT

(1.) THE petitioner is a licensee of Toddy Shop No. 15 of Narakkal Excise Range. He has been a licensee from 1998-99 onwards. THE toddy shop is functioning in Building No. II/230 of Edavnakkad Panchayat. According to the petitioner, the original owner of the building was one Sankaran, who is no more. He had 4 sons and a daughter. THE 4 sons together without the junction of the daughter of Sankaran sold the property to one K. K. Parameswaran. THE daughter challenged the sale deed in Original Suit No. 124/2001 of the Sub Court, Kochi. THE Sub Court set aside the sale in so far as the share of the daughter is concerned. Execution was taken out in which the said K. K. Parameswaran was made a party. THE said Parameswaran sought exclusion of the area comprised of the toddy shop for the purpose of allotting share to the daughter, which was allowed by the execution Court. It was challenged in CRP No. 63/2008, which was dismissed confirming the allotment of shares, by Ext. P20 judgment of this Court. Accordingly, Parameswaran became the owner of the shares of the sons of Sankaran. With the consent of the said Parameswaran, the petitioner is stated to have applied for licence for the toddy shop in the building in question situated in the property allotted to him. Accordingly, the petitioner has been conducting the toddy shop.

(2.) THE 3rd respondent herein raised an objection to the effect that the said toddy shop is functioning within the prohibited distance from a mosque, namely, Ismail Sait Thycavu. THE dispute came up before this Court in Writ Petition (C) No. 21953/2007. By Ext. P5 judgment, this Court directed the 2nd respondent to consider the complaint filed by the 3rd respondent and others and to take appropriate decision in accordance with law. Pursuant thereto, the 2nd respondent issued Ext. P6 recommending to the 1st respondent to cancel the licence of the petitioner on the ground that it is within the prohibited distance from a mosque. That was challenged by the petitioner by filing Writ Petition (C) No. 28200/2007, in which this Court directed the 1st respondent to consider the matter. Accordingly, after hearing, the 1st respondent passed Ext. P7 order holding that since the toddy shop is located within the prohibited distance from Ismail Sait Thycavu, which is a mosque as defined in R. 2 (l) of the Abkari Shops Disposal Rules, 2002, the licence is liable to be cancelled. Accordingly, the licence issued to the petitioner has been cancelled. THE petitioner is challenging Ext. P7 order in this writ petition.

(3.) I have considered the rival contentions in detail.