Kerala High Court
P.M.Karthikeyan vs Deputy Excise Commissioner on 21 May, 2019
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
TUESDAY, THE 21ST DAY OF MAY 2019 / 31ST VAISAKHA, 1941
WP(C).No. 7944 of 2019
PETITIONERS:
1 P.M.KARTHIKEYAN,
AGED 66 YEARS,
S/O. MADHAVAN, KUTTAMCHAL POOJAVELIYIL,
PALLIPPURAM VILLAGE, CHERTHALA TALUK,
THYKKATTUSSERY P.O., ALAPPUZHA DISTRICT.
2 MOHANAN,
S/O. NARAYANAN, PUTHUKULANGAR VELI,
KADAKKARPPALLI P.O., CHERTHALA
BY ADV. SRI.JOBY CYRIAC
RESPONDENTS:
1 DEPUTY EXCISE COMMISSIONER,
ALAPPUZHA DEPUTY EXCISE COMMISSIONER'S OFFICE,
ALAPPUZHA-688 001.
2 EXCISE CIRCLE INSPECTOR,
CHERTHALA, NEAR NEDUMBRAKKAD, CHERTHALA,
ALAPPUZHA-688 524.
3 SRI. SUVARNAKUMAR,
VATTAKKATTUVELI HOUSE, CHERTHALA P.O.,
CHERTHALA-688 524
SRI. K.P.HARISH, SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
21.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 7944 of 2019
2
JUDGMENT
The petitioners, who are licensees of Toddy Shops No.92 to 94 in group No.17 of Cherthala Range, have filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the 1st respondent to take appropriate action to ensure that Toddy Shop No.108 of Group No.20 of Cherthala Range is not functioning beyond its area/boundary, which is notified by the Government; and a writ of mandamus commanding the 1st respondent to consider and pass appropriate orders on Ext.P1 representation, within a time frame that may be fixed by this Court.
2. On 15.03.2019, when this writ petition came up for admission, the learned Government Pleader took notice on admission for respondents 1 and 2. Urgent notice on admission by speed post was ordered to the 3 rd respondent, returnable within ten days.
3. A statement has been filed by the 1 st respondent, WP(C).No. 7944 of 2019 3 opposing the reliefs sought for in this writ petition. Paragraphs 2 and 3 of the said statement read thus;
"2. The contention that the eastern boundary of Toddy Shop No.108 is up to the railway line is not correct. As per gazette notification the eastern boundary of T.S.No.108 is the path connecting "Kottaram road" and the house of "Poopath Reveendran". Similarly the western boundary of T.S.90 owned by the petitioner is the path connecting "Kottaram road" and the house of "Poopath Reveendran". From this, it is clear that the toddy shop 108 is functioning in its notified limit. The ambiguity is about the northern boundary of T.S. No.108. The northern boundary of T.S No.108 is the pathway connecting the house of Nadiyila Veetil Padamanahban and the railway line. At the same line the northern boundary of T.S.No.90 is the pathway connecting the house of Popath Raveendran and NH47. Toddy shop T.S. No.108 stands in the eastern side of the railway line which is the area allotted to the Toddy shop No.108 itself.
3. It is true that the petitioner submitted a representation requesting to take necessary action in this matter. The matter was comprehensively enquired into by the Circle Inspector of Excise, Cherthala and he had reported that TS No.108 Kadakkarappally, Chantha was established in the boundary of T.S No.108 itself.WP(C).No. 7944 of 2019 4
True copy of the report of Circle Inspector of Cherthala is produced herewith and marked as Annexure R1(a). No action is necessary in the matter. Fact being so,the contention of the petitioner is devoid, of any merit and hence liable to be dismissed. True copy of the gazette notification dated 19.03.2008 is produced herewith and marked as Annexure R1(b)."
4. Heard the learned counsel for the petitioners and the learned Senior Government Pleader appearing for respondents 1 and 2. Despite service of notice, none appears for the 3rd respondent.
5. The grievance of the petitioners is that the 3 rd respondent, who is the licensee of Toddy Shop No.90 (Kadakarappally, Chandha Shop) in Group No.20 of Cherthala Range has established that toddy shop within the notified limits of the petitioners Toddy shop No.108. Pointing out the said grievance, the petitioner has moved Ext.P1 representation before the 2nd respondent Excise Circle Inspector, Cherthala. As can be seen from the statement filed by the 1st respondent Deputy Excise Commissioner, based on Ext.P1 complaint WP(C).No. 7944 of 2019 5 made by the petitioner, the 1st respondent has already obtained a report from the 2nd respondent, which is placed on record as Annexure R1(a).
6. Having considered the submissions made by the learned counsel on both sides, this Court finds that it is for the 1st respondent to take an appropriate decision on Ext.P1 representation made by the petitioner, with notice to the petitioner and also to the 3rd respondent, taking into consideration the relevant materials, including Annexure R1(a) report of the 2nd respondent.
7. In such circumstances this writ petition is disposed of by directing the 1st respondent to pass appropriate orders on Ext.P1 representation made by the petitioner, with notice to the petitioners and also to the 3 rd respondent, taking note of the relevant materials, including Annexure R1(a) report dated 26.01.2018 of the 2nd respondent. Necessary orders in this regard shall be passed, as expeditiously as possible, at any rate, within one month from the date of receipt of a certified copy of this judgment.
WP(C).No. 7944 of 20196
The legal and factual contentions raised by the petitioners are left open to be raised before the 1st respondent at appropriate stage.
Sd/-
ANIL K.NARENDRAN JUDGE SPR WP(C).No. 7944 of 2019 7 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE REPRESENTATION DATED 29.09.2018 SUBMITTED BEFORE THE 1ST RESPONDENT BY THE 1ST PETITIONER RESPONDENT'S EXHIBITS:
ANNEXURE R1(a) TRUE COPY OF THE REPORT OF CIRCLE INSPECTOR OF CHERTHALA ANNEXURE R2(b) TRUE COPY OF THE GAZETTE NOTIFICATION DATED 19.03.2008.