N. PAUL VASANTHAKUMAR, J.
This writ appeal is directed against the order of the learned single Judge dated 17.8.2009 made in W.P.No.15240 of 2009, wherein the learned single Judge dismissed the writ petition, challenging the order passed by the third respondent in his proceedings dated 11.7.2009, permitting the 4th respondent to shift the Bar from No.1, Three Well Plaza, South Street, Karaikal, to Ward-E, Block No.1, T.S.No.61/1, Thirunallar Main Road, Dharmapuram Village, Karaikal.
2. The said impugned order of shifting of the Bar was challenged by the appellant on the ground that the Bar is now located near Sri Sithi Kaliyamman Aalayam, located at No.1, Usman Colony, Thirunallar Main Road, Patchoore, Karaikal, and the same is in violation of Rule 113(2) of the Pondicherry Excise Rules, 1970, which states that the licenced premises shall be 300 meters away from the public places, educational institutions or religious establishments, as far as possible.
3. The respondents 1 to 3 have filed counter affidavit stating that the writ petition is not maintainable as there is an appeal remedy provided under Section 60 of the Pondicherry Excise Act, 1970. It is also contended in the counter affidavit that the appellant Temple is a private Temple, managed by the Trustees appointed from among the members of a particular family and the rule only provides for not locating the licensed shop within 300 meters as far as possible.
4. The learned single Judge, without considering the availability of the effective alternate remedy, decided the matter on merits and dismissed the writ petition. As against the said order, this writ appeal is preferred by contending that the appellant Temple is not a private Temple and grant is being paid by the HR&CE Department of the Puducherry Government and the order of the learned single Judge holding that the rule is only directory and therefore the order passed permitting to shift the liquor business premises is unsustainable.
5. Heard the rival submissions made by the learned Counsel for the appellant, learned Government Pleader (Puducherry) for respondents 1 to 3 and the learned counsel appearing for the 4th respondent.
6. The claim of the appellant is that in the appellant Temple public are permitted to worship and the Government is also giving grant for conducting one time pooja daily. On the other hand, while admitting that the Temple is situated within 300 meters from the Bar, it is the case of the respondents that it is only a family Temple and public are not worshipping in the Temple. Thus, there are factual disputes with regard to the claim made by the appellant as well as respondents in this matter and no authority competent to decide the issue has gone into the same. If the appellant files an appeal against the order of the third respondent, the appellate authority can very well go into the issue and give a finding.
7. Section 60 of the Pondicherry Excise Act,1970, reads as follows:
"60.(1) Any person aggrieved by an order passed by any officer other than the Excise Commissioner or the Deputy Commissioner under this Act, may, within sixty days from the date of communication of such order, appeal to the Deputy Commissioner.
(2) Any person aggrieved by an order passed by the Deputy Commissioner under this Act, may within ninety days from the date of communication of such order, appeal to the Excise commissioner.
(3) Any person aggrieved by an order passed by the Excise Commissioner, whether on appeal under sub-section (2) or otherwise, may, within ninety days from the date of communication of such order, appeal to the Government.
(4) Subject to the foregoing provisions, appeals under this section, shall be subject to the rules which the Government may make in this behalf."
From the perusal of the above provision it is evident that as against the order passed by the third respondent, an appeal is maintainable before the Excise commissioner and the said appeal can be filed within a period of 90 days by any person aggrieved. According to the appellant, it is an aggrieved person.
8. Thus, the appellant can file an appeal under the above statutory provision and the appellate authority can go into the factual aspects. That being the position, and having regard to the disputes raised by the parties, the learned single Judge ought to have dismissed the writ petition holding that the appellant should exhaust the statutory remedy provided under the Act.
9. We are of the view that the appellant, having an effective remedy of filing appeal against the order of the third respondent before the second respondent, can be permitted to file an appeal against the order of the third respondent dated 11.7.2009 within a period of two weeks from the date of receipt of copy of this order. Since we are directing the appellant to move the appellate authority, the findings given by the learned single Judge on the merits of the contentions raised by all the parties, are set aside and all the issues are left open to be decided by the appellate authority on its own merits and in accordance with law.
The writ appeal is disposed of accordingly. No costs. Connected miscellaneous petition is closed.