Sreenivasan vs Assistant Excise Commissioner

B.N. Srikrishna, C.J.—The writ Petition under Article 226 of the Constitution is directed against Ext. R4(c) licence issued to the 4th respondent to conduct Toddy Shop No. 52 in shed situated in Sy. No. 967/18B (Resurvey No. 64/14 in Block No. 6) of Thrikkakara North Village. It is the case of the petitioner that the said shop owned by the 5th respondent is located within the prohibited distance prescribed by Rule 6(2) of the Kerala Abkari Shops (Disposal in Auction) Rules, 1974, (hereinafter called ''the Rules''). The petition specifically avers that the toddy shop of the 4th respondent is situated at a distance of 216 metres from the temple known as Kavilkulangara Bhagavathy Temple, 330 metres from Immadudeen Mosque, 385 metres from N.A.D. Ayyappa Temple and 392 metres from N.A.D. Government L.P. School. It is also averred that the toddy shop of the 5th respondent is functioning in an unauthorized structure which has been put up without licence or approval. According to the petitioner, several representations like Exts. P2, P5 and others were made by the people of the locality objecting to the functioning of the toddy shop at the said premises, but the first respondent Assistant Excise Commissioner, Ernakulam, without application of mind to the objections raised by the said residents of the locality, granted Ext. R4(c) licence to the 4th respondent.

Rule 6(2), which is relevant, reads as under:

"No toddy, or foreign liquor shop notified in the Gazette under Rule 4, shall be located outside the notified limits, but with the previous sanction of the Assistant Excise Commissioner it may be removed from one place to another within such limits. However, no such shop shall be located in or removed to place within an area declared as project area. No toddy shop shall be located within 400 metres and no Foreign Liquor I shop shall be located within 200 metres from an Educational Institution, Temple, Church, Mosque, Burial ground, Harjan Colonies or Tribal Colonies;

Provided that the Excise Commissioner may for sufficient reasons to be recorded in writing and subject to such conditions as he may deem necessary to impose, order to remove from any place, any toddy shop or Foreign Liquor 1 shop to a place outside the limits specified in this sub-rule:

Provided further that if any educational institution, Temple, Church mosque or burial ground comes into existence subsequent to the grant of licence, it shall not disentitle such shops for continuance:

Note:- In calculating distance the basis will be shortest pathway/lane/street/road generally used by the public and the same shall be measured from gate to gate.

Provided further that the toddy shops in Ernakulam and Thrissur Divisions may be licensed for three years from 1st April, 1994 in the same locations in which they were licensed in 1991".

The rule in the present form was substituted by S.R.O. No. 254/94 with effect from 1.4.1994. The earlier rule had a proviso which read as under:

"Provided further that the toddy shop, arrack shop and foreign liquor retail shop shall be permitted to be located and licensed in such places where they were located and licensed in the Abkari year 1991-92 as a toddy shop, an arrack shop of foreign liquor retail shop respectively. In the events of complaints, the Excise Commissioner shall cause due enquiries and for sufficient reasons to be recorded, order the shifting of closure of such shops."

Thus, under the rule as it stood prior to the amendment in the year 1994, the State Government was empowered under the second proviso the issue a licence in respect of an establishment which had been licenced in the previous year. The Government in exercise of its rule making powers has now deleted that discretion by amending Rule 6 in the form as extracted above on and from 1.4.1994. Thus, on and from 1.4.1994, there does not appear to be any discretionary power in the State authorities to relax the rigour of the rule on the basis of a previous licence.

The learned Government Pleader submits that, as far as Ernakulam District is concerned, the rule, as it stands has a note and a proviso thereafter. This proviso further provides that "the toddy shops in Ernakulam and Thrissur Divisions may be licensed for three years from 1st April 1994 in the same locations in which they were licensed in 1991". It is not the case of the learned Government Pleader that there is any change in this proviso. Thus, even if accepting the argument of the learned Government Pleader that there was a discretionary power to permit toddy shops which had already been licensed from 1st April, 1994 to function in the same location, that period expired on 31st March, 1997. Thus, it is clear that after 1st April, 1997, there is no such discretion vested in any of the Excise authorities who have to implement Rule 6(2) with unabated rigour.

It is contended on behalf of respondents 4 and 5 by the learned counsel that there is a dispute as to whether the toddy shop of the 4th respondent is situated within the prohibited distance of the institutions as alleged in the Original Petition. We are surprised by this contention. The petitioner, in Ground A, has indicated the names of the institutions and precise distance at which they are situated from the toddy shop of the 4th respondent. On 28.9.2001 when this petition had come up before this court for hearing, we made the following order:

"The first respondent to file an affidavit as to whether the establishment of fourth respondent selling toddy is within the prohibited distance as prescribed under the rules, from the different types of institution as alleged in Ground A of the O.P. If the distance mentioned in Ground A is correct, then the basis on which licence has been issued to 4th respondent. Affidavit to be filed on or before 11th October, 2001."

This order required the Government to state on affidavit whether the said toddy shop was within the prohibited distance of the different institutions named in Ground A and, if so, to indicate the basis on which licence had been given to the 4th respondent. Counter affidavits have been filed by both the first respondent and respondents 4 and 5. In the counter affidavit of the first respondent, despite the specific distances mentioned, the only averment in paragraph 4 is as under:

"The grounds raised in the Writ Petition are also without merit. Ground A refers to the distance of the Toddy Shop from certain institutions, which cannot stand in view of Ext. R1(a)."

Thus, it is clear that the first respondent does not dispute the distance of the institutions from the toddy shop as averred in Ground A of the Original Petition. He merely justifies it on the basis of an order issued by the Government which is produced at Ext. R1(a). Ext. R1(a) is a Government Order dated 3.4.2001. In the first place, it does not indicate the source of its powers. It merely states that, in the meeting held by Minister (Finance & Excise) with officers of Excise Department, on 24.3.2001, certain decision has been taken to continue the toddy shops which had functioned in objectionable places during the last financial year to continue at the same location/ building during the year 2001-2002 also. It is on this tentative decision that the Government ordered that toddy shops which had functioned in objectionable places during the previous financial year would continue at the same premises during the current year also. In our view, this order is wholly illegal as it has no legal basis at all. Article 47 of the Constitution lays down, as a matter of directive principle of State policy, that in particular the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. It is in pursuance of the directive policy that the State Abkari Laws have been enacted by the State Government. Though it may not be possible for the time being to prohibit sale or consumption of intoxicating liquor, the State has prescribed by Rule 6(2) that sale of such intoxicating liquor shall not take place within the prescribed distances from institutions like educational institutions, religious institutions and the like. It is, therefore, futile for the learned Government Pleader to contend that on the basis of a Government Order issued on 3.4.2001 the rigour of the prohibition in Rule 6(2) could be overridden. In our view, the contention has no merit and is to be rejected.

Learned Government Pleader contends that by reason of Section 69 of the Act all rules made and notifications issued under this Act and published in the gazette shall have the force of law and read as part of this Act and may in like manner be varied, suspended or annulled. We emphasis the words ''under this Act''. These words, in our judgment, mean in exercise of the powers vested in the State Government by the Abkari Act. We have not been shown any provision of the Abkari Act which empowered the State Government to override any statutory rule like Rule 6(2) by mere issuance of a Government Order. We have already pointed out that even the order does not, ex facie, suggest that it is issued in exercise of any statutory powers.

Our attention is invited to a judgment of a learned Single Judge of this Court in O.P.No. 11293 of 1995 (judgment dated 30th October, 1995 per Justice P.K. Balasubramanian, J.). The very same contention urged before us was canvassed before the learned single Judge therein and the learned Single Judge categorically rejected it on the same reasoning. We approve of the reasoning in this judgment as it accords with our view also.

On behalf of respondents 4 and 5 a counter affidavit has been filed in which, in paragraph 13, it is vaguely denied that the toddy shop of 4th respondent is located within the prohibited distance as ''not true and so denied''. In our view, such a denial has no meaning and is no denial at all. When specific details were averred in the Original Petiton, it was necessary for respondents 4 and 5, if they were serious about controverting the issue, to deny the same on oath and state whether the institutions named in Ground A of the Original Petition were in existence near the 4th respondent toddy shop, and if so, at what distance they were situated according to respondents 4 and 5. A mere vague and general denial is no denial in law. A bare reading of the counter affidavit filed by respondents 4 and 5 suggests that they were justifying the grant of licence to them on the basis of their functioning during earlier years in the same premises, and not on the basis of the toddy shop being beyond the prohibited distance. In the circumstances, after considering the counter affidavit of respondents 4 and 5, we are of the view that the fact that the 4th respondent toddy shop is situated within the prohibited distance of the institutions named in Ground A of the Original Petition needs to be accepted. Once we come to this conclusion, then the prohibition against licensing of such a toddy shop under Rule 6(2) of the Rules is absolute. Neither the first respondent, nor the State Government, is shown to have any power to grant any relaxation. Therefore, we are of the view that the licence Ext. R4(c) issued to respondents 4 and 5 is contrary to the prohibition contained in Rule 6(2) and is therefore illegal.

In the view we are taking in the matter, it is unnecessary for us to go into the question as to whether the premises in which the 4th respondent is licensed is authorized or unauthorized. We leave that question to be decided by some other competent authority as and when it is raised.

Consequently, we quash and set aside the licence Ext. R4(c) and direct the first respondent to ensure that the 4th respondent toddy shop does not function at the place at which it is located presently. Rule accordingly made absolute.

Original Petition is allowed as above. Respondents 1 and 4 shall pay costs at Rs. 1000/- each to the petitioner.