C.N. Ramachandran Nair, J.@mdashThe petitioner, a Municipal Councilor representing the local public has filed this Writ Petition for a direction
to the respondents to shift Toddy Shop No. 3 located at Thekky Bazar in Kannur Town to another place.
2. We have heard the counsel appearing for the petitioner, the counsel appearing for the first respondent and the Government Pleader appearing
for the remaining respondents. The above mentioned toddy shop was shifted to the objectionable site in the busy town area under Ext.P6 order
issued by the Commissioner of Excise on 17.2.2010. However, ever since the toddy shop was shifted to the densely populated area in the town,
the people including school children and ladies started agitation against the continuance of the toddy shop. The petitioner has produced large
number of photographs and reports published in the news papers about the agitation taken up by the local people for closure of the toddy shop.
Ultimately, the representatives of the political leaders including the local M.P. constituted a sub committee, which negotiated with the first
respondent for shifting and a decision was taken to shift the toddy shop to a suitable place. The minutes of the committee is produced as Ext.P3 in
the Writ Petition. It is seen from Ext.P3 that the decision was to stop retail sale in the toddy shop thereby much of the nuisance is avoided in as
much as the customers discontinued visiting the toddy shop. However, it is stated in Ext.P3 that until a new suitable building is located, the workers
of the first respondent can bring toddy to the toddy shop, measure the same and distribute it to other toddy shops for sale. It is specifically stated
that this work also will be done between 10 a.m. and 11.30 a.m. and outside this time, the toddy shop will remain closed. The understanding in the
committee meeting is that sale under no circumstance will take place in the toddy shop. The petitioner''s case is that on account of the continuation
of the toddy shop, nuisance still continues though in a reduced form and therefore respondents should be directed to shift the toddy shop
immediately.
3. The counsel for the first respondent contended that all efforts are made to locate alternate building for shifting the facility and so far they have not
been successful in getting a building. First respondent''s counsel also submitted that the committee members also had undertaken to co-operate
with the first respondent in locating an alternate building for the toddy shop. The counsel further submitted that the toddy is locally generated in the
area and as many as 30 toddy tappers are bringing toddy everyday to the toddy shop. Therefore, according to him, the business of production and
distribution of toddy cannot be discontinued and if done, the same will cause loss of employment for large number of persons.
4. It is also contended by the first respondent that the toddy shop is not located in any objectionable area and by virtue of the second proviso to R.
7(2) of the Kerala Abkari Shops Disposal Rules, 2002, the first respondent is entitle to continue the toddy shop in the same location.
Rule 7(2) of the Rules is as follows:
No Toddy or Foreign Liquor-1 shop notified in the Gazette under Rule 4 shall be located outside the notified limits, but with the previous sanction
of the Assistant Excise Commissioner, it may be removed from one place to another within such limits. However, no such shop shall be located in
or removed to a place within an area declared as a project area. No toddy shops shall be located within 400 metres and no Foreign Liquor-1
shops shall be located within 200 metres from an Educational Institution, Temple, Church, Mosque, Burial Ground and Scheduled
Caste/Scheduled Tribes Colonies. In calculating distance the basis will be the shortest pathway/lane/street/road generally used by the public and
the same shall be measured from gate to gate:
Provided that if any Educational Institution, Temple, Church, Mosque, Burial Ground or Scheduled Caste/Scheduled Tribe Colonies come into
existence subsequent to the grant of licence, it shall not disentitle such shops for continuance.
Provided further that the restrictions in distance from an Educational Institution, Temple, Church, Mosque, Burial Ground and Scheduled
Caste/Schedule Tribes colonies for locating toddy shops shall not apply to those shops which remained unlicensed for want of any unobjectionable
site, but where to be located at the same place where they where licenced for the year 2001-2002.
5. What is clear from the above is that toddy shop should not be located within 400 metres and foreign liquor shops within 200 metres from
educational institution, temple, church, mosque, burial ground and scheduled caste and scheduled tribe colonies. Strangely, there is no objection
under the rules in conducting toddy shops in thickly populated areas. However, the above Rule protects ''the members of the scheduled caste and
scheduled tribe from the nuisance from the toddy shops. Similarly, burial grounds where people go only for burial of dead bodies are provided
peaceful environment by avoiding toddy shops near it. There cannot be any controversy that people cannot live in peace near any toddy shop
because of the nuisance mainly the sound and smell emanating from it. The adverse effect and nuisance on account of the toddy shop involved in
this case is reflected in the continuous strike and agitation by the local people including ladies and school children.
6. We are of the view that no toddy shop should be permitted in busy residential areas, because people are entitled to live in peace and toddy
business stands in conflict with it. Only two days back, the State suffered a liquor tragedy involving the death of around 30 people and dead bodies
were found lying around the toddy shop in Malappuram. We, therefore feel that the Rule needs amendment to liberate the people from the
nuisance of the toddy shop near their houses. If at all Government is keen to continue toddy shops as a necessary institution, they should construct
and provide building in remote places away from residential areas. It is clear from the admission of first respondent that nobody is willing to give on
rent building to run toddy shop. Further most of the local residents do not want the toddy shop and the same is clear from their agitation and
resistance. Considering public sentiments, it is for the Government to consider whether toddy shops are required everywhere or whether it could
be prohibited atleast in residential areas. In this case, we do not think any specific direction is called for, because the first respondent is bound to
honour the commitment given in Ext.P3. The Writ Petition is accordingly disposed of by directing all the respondents to ensure that the toddy shop
remains opened only one and half hours i.e. from 10 a.m. to 11.30 a.m. and for the remaining period it remains closed. It is specifically made clear
that no retail sale should be made or any customer is permitted to enter the toddy shop at any time. If there is any violation, it is for the petitioner to
approach the local excise authorities or the police authorities and there will be a direction to such authority to promptly close down the toddy shop,
if violation is committed. If the first respondent is not able to locate a building in a suitable and unobjectionable area within a reasonable time, the
petitioner can approach this Court again for ordering closure of the toddy shop because the first respondent cannot be permitted to run the toddy
shop to the discomfort of local residents merely because they are not able to locate a building at alternate place.
