Decided on November 18,1993

MADHU Appellant
KUTTAN Respondents


- (1.)The writ petitioner raises the question whether R.6(2) of the Kerala Abkari Shops (Disposal in Auction) Rules, 1974, which prohibits liquor shops from being located within a particular distance from various institutions including 'burial grounds', would also take in, - apart from a graveyard of Christians and Muslims, - a 'cremation ground' used in the case of Hindus, which could be used both for cremation of dead bodies, but also for interning the dead bodies of the young
(2.)Initially, exemption from R.6(2) which imposes this 'distance-rule' between liquor shops on the one hand and educational institutions, Temples, Churches, Mosques or Burial grounds on the other, was being granted year after year, but the excise policy changed with effect from 1993-94 and the said exemption was discontinued from 1-4-1993. A batch of Writ Petitions filed as O.P.Nos. 4070/93 & batch questioning the application of R.6(2) to existing liquor shops was upheld by us by judgment dated 25-6-1993. A little before the said judgment, a number of abkari contractors had filed O.P.No.6637 of 1993 and obtained a very general order before a learned Single Judge on 18-5-1993 notwithstanding the change in the excise policy w.e.f. 1-4-1993, for continuing their shops within the prohibited distance till such time as they were able to shift these shops or till 1-4-1994. These abkari contractors were also parties to the batch of O.Ps. which we dismissed on 25-6-1993, and where we upheld the change in the excise policy for 1993-94. On the ground that, notwithstanding their failure in the batch of O.Ps decided on 25-6-1993, they were being allowed to vend liquor within the prohibited distance, an appeal, W.A.No.1130 of 1993, was filed against the general order dated 18-5-1993 in O.P.Nos. 6637 of 1993 in W. A.No. 1130 of 1993, we suspended the order of the learned Single Judge in O.P.No.6637 of 1993 dated 18-5-1993, and further directed on 26-8-1993 the Assistant Excise Commissioner, Trichur, as follows-
"The Asst. Excise Commissioner, Trichur, is hereby directed to implement R.6(2) of Kerala Abkari Shops (Disposal in Auction) Rules, 1974, within bis jurisdiction without any delay whatsoever." (emphasis supplied)

Thereafter, the Asst. Excise Commissioner, Trichur, took steps to close down/ shift the shops in his jurisdiction beyond the distance rule provided in R.6(2), so as to conform to the excise policy for 1993-94, and on our Division Bench judgment dated 25-6-1993.

(3.)C.C.C.No. 206 of 1993 was filed by the petitioner who is a prohibition-activist, against O.C. Kuttappan (1st respondent) who was the concerned Assistant Excise Commissioner, Trichur, on the ground that inspite of all these orders of this Court, the shop bearing FLR No.150 of 1993-94 was not closed down or shifted. Thereafter the licensee Mr.C.C. Thampi, and his Manager, Mr.E.P. Raphel, have been impleaded as additional respondents 2 and 3. Subsequently, the Contempt Case was, by consent, converted into a petition under Art.226 of the Constitution of India. The name of the 1st respondent was amended as Asst. Excise Commissioner, Trichur. Senior counsel, Sri.S. Venkatasubrahmania Ayyar, representing the Manager (3rd respondent) was heard. The licensee (2nd respondent) remained ex parte. It appears he is now living abroad and practically left the contest to his Manager. The Assistant Excise Commissioner (1st respondent) is represented by Government Pleader.

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