Court directs Excise Commissioner to reconsider claim of petitioner vis-à-vis distance between Temple and Bar

Iswarya Tourist Home Pvt. Ltd Vs Excise Commissioner (Kerala High Court)

Kerala High Court set aside the order with direction to Excise Commissioner to reconsider the claim of the petitioner and decide the distance as per Abkari Laws since there is a Temple right opposite to the bar in question.

Facts- The petitioner calls into question order, issued by the 1st respondent – Excise Commissioner, whereby, their request for permission to install a gate on the western side of their property has been declined, citing the reason that said access will be within the inhibited distance as per the Abkari Laws, since there is a Temple right opposite to the building in question.

Petitioner, argued that, as is evident from the sketches produced on record, even if permission is granted to his client, there would be no violation of the distance rule because, the crossing of the road between the Temple and the petitioner – Company is possible only at a Zebra Crossing, which has been provided at a distance away.

Conclusion- When one examines the order it is clear that it does not refer to any ‘Zebra Crossing’, as has been mentioned by the petitioner. This does not mean that this Court finds that there is any such Crossing, but only that even the contention in such regard has not been adverted to.

The further question whether, even if there is any such ‘Zebra Crossing’, the judgment in Vijaykumar would apply, is also a matter that the Excise Commissioner ought to have considered. I, however, clarify that this does not mean that this Court find in favour of the petitioner, but solely that the Excise Commissioner ought to have considered this in its proper perspective.

Accordingly, the order is set aside with a consequential direction to the 1^st respondent – Excise Commissioner, to reconsider the claim of the petitioner, adverting to all relevant aspects and the binding precedents, within a period of two months from the date of receipt of a copy of this judgment.

FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT

The petitioner calls into question Ext.P8 order, issued by the 1^st respondent – Excise Commissioner, whereby, their request for permission to install a gate on the western side of their property has been declined, citing the reason that said access will be within the inhibited distance as per the Abkari Laws, since there is a Temple right opposite to the building in question.

2. Sri. M. G. Karthikeyan – learned counsel for the petitioner, vehemently argued that, as is evident from the sketches produced on record, even if permission is granted to his client, there would be no violation of the distance rule because, the crossing of the road between the Temple and the petitioner – Company is possible only at a Zebra Crossing, which has been provided at a distance away; and that the judgment of this Court in State of Kerala v. Vijayakumar [2009 (1) KL 578], would fortify this position. He thus prayed that Ext.P8 be set aside and the Excise Commissioner be directed to decide the matter again.

3. Sri. P. S. Appu – learned Government Pleader, in response, submitted that, what the petitioner is now attempting to do is to create an artificial distance between the bar in question and the Temple, by saying that the Temple Road – which is situated between them – cannot be crossed by a citizen, except at the Zebra Crossing, which is stated to be at a distance away. He submitted that this proposition militates against commonsense and the Statutory Scheme; and therefore, that the Excise Commissioner was justified in not having acceded to the same in Ext.P8.

4. Though the afore submissions were made by the learned Government Pleader, when one examines Ext.P8, it is clear that it does not refer to any ‘Zebra Crossing’, as has been mentioned by the petitioner. This does not mean that this Court finds that there is any such Crossing, but only that even the contention in such regard has not been adverted to.

5. The further question whether, even if there is any such ‘Zebra Crossing’, the judgment in Vijaykumar (supra) would apply, is also a matter that the Excise Commissioner ought to have considered. I, however, clarify that this does not mean that this Court find in favour of the petitioner, but solely that the Excise Commissioner ought to have considered this in its proper perspective.

In the afore circumstances, I order this writ petition and set aside Ext.P8; with a consequential direction to the 1^st respondent – Excise Commissioner, to reconsider the claim of the petitioner, adverting to all relevant aspects and the binding precedents, within a period of two months from the date of receipt of a copy of this judgment.

I make it reiteratingly clear that I have not entered into the merits of any of the contentions of the petitioner; and that all of them are left open to be decided appropriately by the afore Authority in terms of law.