Kerala High Court
M.K.Divakaran vs The Commissioner Of Excise on 23 October, 2009
Author: Thottathil B.Radhakrishnan
Bench: Thottathil B.Radhakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 27597 of 2009(T)
1. M.K.DIVAKARAN, S/O.KUNJUJU,
... Petitioner
Vs
1. THE COMMISSIONER OF EXCISE,
... Respondent
2. THE DEPUTY COMMISSIONER OF EXCISE,
3. THE CIRCLE INSPECTOR OF EXCISE,
4. K.R.RAJESH KUMAR, S/O.K.I.RAJAN,
5. K.R.ASHOK KUMAR, S/O.M.K.RAJAPAN,
For Petitioner :SRI.K.REGHU KOTTAPPURAM
For Respondent :SRI.ANIL K.NARENDRAN
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :23/10/2009
O R D E R
THOTTATHIL B. RADHAKRISHNAN, J.
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W.P.(C).No.27597 of 2009-T
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Dated this the 23rd day of October, 2009.
JUDGMENT
1.The petitioner was granted a licence to vend toddy. He found a site to establish the shop. Objections were raised and the site was found to be within objectionable distance in terms of Rule 7(2) of the Kerala Abkari Disposal Rules, 2002. That decision was rendered by the Deputy Commissioner of Excise, acting on site inspection report of the Circle Inspector of Excise. The petitioner challenged that decision before this Court. He was relegated to the Commissioner of Excise, who had revisional authority in the matter. In doing so, it was noticed in Ext.P7 judgment that having regard to the parameters of jurisdiction of the Commissioner before whom the revision would lie and because the Commissioner could get further materials, if required, to WPC27597/09 -: 2 :- resolve the dispute, the matter could be taken up before that authority. Following that, the petitioner filed Ext.P8 revision and Ext.P9 notes of arguments. The Commissioner of Excise issued Ext.P10 rejecting the petitioner's revision. That is under challenge.
2.The report of the Circle Inspector of Excise, to the extent it is relevant, is available in the third page of Ext.P5 order of the Deputy Commissioner. The Circle Inspector had reported that the site is within a distance of 250 meters from a Pentecostal mission prayer hall at the 9th Mile Pampady and the prayer hall and the parsonage is situated in an extent of 65 cents. The Circle Inspector had also recorded that the pastor of the prayer hall, had stated that about 200 family members attend the prayers and service is conducted except on Tuesdays and Thursdays. It is on the basis of that prayer hall, the Deputy Commissioner refused to approve the site on ground referable to Rule 7(2) of the Disposal WPC27597/09 -: 3 :- Rules. The said place of worship was treated as a church.
3.Impeaching the decision of the Deputy Commissioner, the petitioner did not produce any further material before the Commissioner. Nor did the contesting private respondents produce any further materials except a photograph and a sketch. The learned counsel for the petitioner is right in stating that the pastor was not examined to ascertain whether the institution is a church. In matters of this nature, it is inadvisable to assume that the Commissioner should have summoned the pastor under the authority of law and ought to have recorded his testimony. It is neither conducive nor to be expected in the normal course of things that a pastor and a church or a denomination may not choose to keep away from a controversy relating to the establishment of a toddy shop. They may or may not have objections. Even if they have, they may even desire to keep away from expressing it. The moulding of the WPC27597/09 -: 4 :- minds of religious and spiritually inclined persons may advise them to even excuse out of controversies. Therefore, without giving any particular weightage to the presence or absence of the objections of the pastor or denomination in relation to the site in question, it needs to be considered as to whether the Commissioner of Excise erred in law in passing the impugned order.
4.The learned counsel for the petitioner strenuously contended that the Commissioner failed to exercise his jurisdiction as a revisional authority in as much as he obtained the views of the Deputy Commissioner in relation to the matter by calling for a report.
5.The establishment hierarchy cannot be expected to work by each superior officer doing the entire job by himself. Necessary materials will have to be collected. To exclude any chance of the Deputy Commissioner's views having influenced the WPC27597/09 -: 5 :- impugned decision of the Commissioner, I have adverted to, as noticed above, the initial report of the Circle Inspector of Excise, who is the basic authority to conduct the site inspection and makes the report. There is controversy between the parties as to whether the distance from the site in question to the structure that is termed as a church is 220 or 250 meters. That controversy is dependent on whether the distance from the main road up to the main get of the structure called church should be counted. Either way, that makes no difference because the total distance which may be relevant is 400 meters since it is a toddy shop.
6.Going by the findings in the impugned order, one of the cardinal questions that was addressed before the Commissioner is as to whether the prayer hall of Pentecostal denomination is a church. The learned counsel for the petitioner relied on a decision of this Court (Ext.P6) wherein, it was held that a hall by name Bathel WPC27597/09 -: 6 :- Gospel Hall where only some worship meetings are held, does not amount to a church since that hall is not an apostolic church governed by Ecclesiastical Hierarchy. Though it is not necessary to agree or disagree with the views in that judgment to that effect, the larger conspectus of Christian, Christianity etc. is understood without making any classification between the different denominations which may or may not form an Ecclesiastical Hierarchy or which may otherwise stand. I say this to further indicate that for the purpose of the word 'church' in relation to Rule 7(2), such a controversy need not arise. Rule 7(2) uses the word 'church' and Rule 2(f) of the Disposal Rules defines 'church' to mean a public place where prayer is offered by Christians provided that no structure on the road side, pavement or in a compound of a private building with or without a deity shall be considered as a church. Even the rule making authority had been well notified of the fact that a church could exist without a WPC27597/09 -: 7 :- deity. This is why the proviso to Rule 2(f) is so couched. The non-existence of a deity is, therefore, not of any particular evidentiary value to decide the issue. The Commissioner, acting on the report of the Circle Inspector, has concluded that the hall in question is a place where Christians belonging to Pentecostal denomination congregate and have prayers occasionally except on Tuesdays and Thursdays. That finding of fact cannot be treated as palpably perverse or totally unavailable on the materials on record. Sitting in jurisdiction under Article 226, I do not, therefore, find any error of law or of jurisdiction with the impugned order.
In the result, the writ petition fails and it is accordingly dismissed. No costs.
THOTTATHIL B.RADHAKRISHNAN, JUDGE.
Sha/051109