The court set aside an order shifting a toddy shop licensee, directing the commissioner to reconsider the alleged nuisance issue after hearing both sides and pass a speaking order within four weeks.
Ext.P7 set aside; first respondent directed to reconsider alleged nuisance and pass speaking order within four weeks after hearing both sides.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
FRIDAY, THE 10TH DAY OF FEBRUARY 2012/21ST MAGHA 1933
WP(C).No. 29916 of 2011 (L) ---------------------------
PETITIONER(S):
LALU C.K., S/O.KESAVAN,
CHERAI HOUSE, NELLAYI, THRISSUR- 680 305.
BY ADVS.SRI.S.VINOD BHAT
RESPONDENT(S):
1. COMMISSIONER OF EXCISE (KERALA), COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM-695 039.
2. DEPUTY COMMISSIONER OF EXCISE, EXCISE DIVISION OFFICE, THRISSUR- 680 021.
3. THE DEPUTY COMMISSIONER OF EXCISE, EXCISE DIVISION OFFICE, ERNAKULAM-682 018.
4. E.P.SOMAN, S/O.PAZHANI ANDI, IDIYAMPOTTA HOUSE, NENMARA, CHITTOOR TALUK PALAKKAD DISTRICT, PIN 678 508.
5. ANOOP V.K., S/O.KOCHANIYAN, VALIYAVEETTIL HOUSE, CHEROOR, VILVATTOM THRISSUR.
(ADDL.R5 IS IMPLEADED AS PER ORDER DATED 20.12.2011 IN IA.20060/2011)
BY SRI.M.C.JOHN BY GOVERNMENT PLEADER SRI.VIJU LAL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RK
WP(C).No. 29916 of 2011 (L)
APPENDIX
PETITIONERS EXHIBITS:
| EXT.P1: | COPY OF THE JUDGEMENT DATED 9.06.2010 IN W.P(C) 16555/2010 OF THE HIGH COURT OF KERALA |
|---|---|
| EXT.P2: | COPY OF THE JUDGEMENT DATED 23.06.2010 IN W.A 1012/2010 OF THE HIGH COURT OF KERALA |
| EXT.P3: | COPY OF THE ORDER NO.R.5-3020/2010 DATED 20.11.2010 OF THE 2ND RESPONDENT |
| EXT.P4: | COPY OF THE APPEAL DATED 22.12.2010 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT |
| EXT.P5: | COPY OF THE LETTER NO.XA2-38121/2010 DATED 28.12.2010 OF THE 1ST RESPONDENT |
| EXT.P6: | COPY OF THE JUDGEMENT DATED 23.03.2011 IN W.P(C) 221/2011 OF THE HIGH COURT OF KERALA |
| EXT.P7: |
COPY OF THE ORDER NO.XA2-3182/2010 DATED 16.08.2011 OF THE 1ST RESPONDENT |
RESPONDENTS EXHIBITS: NIL
/TRUE COPY/
PA TO JUDGE
RK
P.R.RAMACHANDRA MENON, J.
W.P.(C).No.29916 of 2011
Dated this the 10th day of February, 2012
JUDGMENT
The issue involved in this writ petition is with regard to the rights and liberties of the concerned licensee of the toddy shop bearing no.89 of the Excise Range, Irinjalakuda, in the particular premises.
“ The writ petition is therefore allowed. Ext.P13 is quashed. There will be a direction to respondents 2 to 4 to issue license to the petitioner to conduct Toddy Shop No.89 of Irinjalakuda Range, as expeditiously as possible, at any rate, within two weeks from the date of receipt of a copy of this judgment. This will not stand in the way of the right of the 6th respondent to move the authorities, if any specific items of nuisance are caused by the conduct of the shop after it starts functioning.”
W.P.C.No.29916 of 2011
2
As per the above verdict, it was made clear that the 6th respondent therein (the present writ petitioner) could move the concerned authorities, if at all any nuisance was being caused, because of the conduct of the shop in the premises, after it started functioning. The said judgment was challenged by the 6th respondent therein (present writ petitioner) by filing Writ Appeal No.1012/2010; wherein interference was declined and the matter was disposed of, confirming the position that the appellant could pursue the grievance before the concerned authorities with regard to the nuisance, if it still persisted. It was accordingly, that the petitioner approached the Deputy Excise Commissioner, who passed Ext.P3 order, which was not favourable to the petitioner. Ext.P4 appeal was preferred before Excise Commissioner against Ext.P3. After considering the matter, Ext.P5 order dated 28/12/2010 was passed by the first respondent, whereby the toddy shop bearing no.89/10-11 of the Excise Range, Irinjalakuda was ordered to be shifted, by invoking the powers conferred under Rule 7(3) of the Kerala Abkari Shops (Disposal in Auction) Rules, 2002.
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“On examining the arguments and relevant rules, I find force in the arguments put in by Sri.A.G.Sunilkumar, Counsel of petitioner in the Writ Petition No.221/11 and hence the direction contained in letter referred 2nd is hereby revoked. “
The learned counsel for the petitioner submits that the specific point with regard to the subsisting nuisance projected by the petitioner has not been adverted to while passing Ext.P7 order and further that the order stated as revoked by the
W.P.C.No.29916 of 2011
4
Commissioner is nothing but Ext.P5 which stands already set aside by this Court as per Ext.P6 judgment.
5.In the above circumstance, Ext.P7 is set aside and the first respondent is directed to reconsider the matter with regard to the
W.P.C.No.29916 of 2011
5
alleged 'nuisance'. A speaking order shall be passed after hearing both the sides, in accordance with the relevant provisions of law, as early as possible, at any rate, within four weeks from the date of receipt of a copy of this judgment.
Writ petition is disposed of.
P.R.RAMACHANDRA MENON, JUDGE
su
3 issues framed by the court
Whether the excise commissioner should reconsider the license dispute considering the specific issue of nuisance.
Whether a speaking order must be passed after hearing both sides within four weeks.
Whether the order shifting the toddy shop was passed without adequate opportunity of hearing.
1 provisions across 1 enactments
Lalu C.K.
Commissioner of Excise, Kerala
Deputy Commissioner of Excise, Thrissur
Deputy Commissioner of Excise, Ernakulam
P.R. Ramachandran Menon
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
