DIVAKARAN Vs. COMMISSIONER OF EXCISE

JUDGEMENT

(1.) The petitioner was granted a licence to vend toddy. He found a site to establish the shop. Objections were raised and the site was found to be within objectionable distance in terms of R.7(2) of the Kerala Abkari Disposal Rules, 2002. That decision was rendered by the Deputy Commissioner of Excise, acting on site inspection report of the Circle Inspector of Excise. The petitioner challenged that decision before this Court. He was relegated to the Commissioner of Excise, who had revisional authority in the matter. In doing so, it was noticed in Ext. P7 judgment that having regard to the parameters of jurisdiction of the Commissioner before whom the revision would lie and because the Commissioner could get further materials, if required, to resolve the dispute, the matter could be taken up before that authority. Following that, the petitioner filed Ext. P8 revision and Ext. P9 notes of arguments. The Commissioner of Excise issued Ext. P10 rejecting the petitioner's revision. That is under challenge.

(2.) The report of the Circle Inspector of Excise, to the extent it is relevant, is available in the third page of Ext. P5 order of the Deputy Commissioner. The Circle Inspector had reported that the site is within a distance of 250 meters from a Pentecostal mission prayer hall at the 9th Mile Pampady and the prayer hall and the parsonage is situated in an extent of 65 cents. The Circle Inspector had also recorded that the pastor of the prayer hall, had stated that about 200 family members attend the prayers and service is conducted except on Tuesdays and Thursdays. It is on the basis of that prayer hall, the Deputy Commissioner refused to approve the site on ground referable to R.7(2) of the Kerala Abkari Disposal Rules, 2002. The said place of worship was treated as a Church.

(3.) Impeaching the decision of the Deputy Commissioner, the petitioner did not produce any further material before the commissioner. Nor did the contesting private respondents produce any further materials except a photograph and a sketch. The learned counsel for the petitioner is right in stating that the pastor was not examined to ascertain whether the institution is a Church. In matters of this nature, it is inadvisable to assume that the commissioner should have summoned the pastor under the authority of law and ought to have recorded his testimony. It is neither conducive nor to be expected in the normal course of things that a pastor and a Church or a denomination may not choose to keep away from a controversy relating to the establishment of a toddy shop. They may or may not have objections. Even if they have, they may even desire to keep away from expressing it. The moulding of the minds of religious and spiritually inclined persons may advise them to even excuse out of controversies. Therefore, without giving any particular weightage to the presence or absence of the objections of the pastor or denomination in relation to the site in question, it needs to be considered as to whether the Commissioner of Excise erred in law in passing the impugned order.