C. B. NANJUNDAPPA v. CHIEF SECRETARY, ZILLA PARISHAD, TUMKUR
1992-11-20
body1992
DigiLaw.ai
K. A. SWAMI, J. ( 1 ) THIS writ appeal is preferred against the order dated 18th September, 1992, passed in Writ Petition No. 2848 of 1992. The learned single Judge has rejected the writ petition. Therefore, the petitioner-appellant has come up in the appeal. ( 2 ) IN the writ petition, the petitioner has sought for quashing the 'no objection'certificate dated 29-6-1991 produced as anncxure-A in the writ petition issued by the Pradhan, Chelur Mandal Panchayat, Gubbi Taluk. The 'no objection' certificate was to the effect that the Mandal Panchayat had no objection for running a liquor shop in the premises bearing Khaneshumari No. 223 of Chelur village. ( 3 ) THE contention of the appellant-petitioner is that no place within thejurisdiction of a Mandal Panchayat shall be used as a shop whether permanently or temporarily, other than a shop referred to in Sections 67 and 68, except under a licence granted or renewed by the Mandal Panchayat and except in accordance with the conditions specified therein, as per Section 69 of the Karnataka Zilla Parishads, taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 (hereinafter referred to as the 'act'); therefore the act of the Mandal Pradhan in granting 'no objection' certificate is in exercise of the power under Section 69 of the act, which could have been done only by the Mandal Panchayat and not by the pradhan; that the Mandal Panchayat has not passed any resolution and it is only the pradhan who has granted the 'no objection' certificate; therefore it is without the authority of law. ( 4 ) ON the contrary, it is contended by sri A. V. Gangadharappa, learned counselappearing for respondent No. 4, in whose favour the 'no objection' certificate is granted and on the basis of which be can obtain licence from the Deputy commissioner for running a liquor shop under the Karaataka Excise (Sales of Indian and Foreign Liquors) Rules. 1968 (hereinafter referred to as the 1968 Rules'), that issue of 'no objection' certificate itself does not amount to granting licence under section 69 of the Act; therefore, it is not required to be issued by the Mandal panchayat and it can be issued by the Pradban of the Mandal Panchayat.
1968 (hereinafter referred to as the 1968 Rules'), that issue of 'no objection' certificate itself does not amount to granting licence under section 69 of the Act; therefore, it is not required to be issued by the Mandal panchayat and it can be issued by the Pradban of the Mandal Panchayat. It is also further contended that it is open to the appellant-petitioner to put forth his objection before the Deputy Commissioner in the proceedings for grant of licence under the "1968 Rules. " ( 5 ) NO provision either in the Act or in the "1968 Rules", is brought to our noticeprescribing the procedure to be adopted for granting 'no objection' certificate, section 69 of the Act says that without obtaining licence from the Mandal panchayat, no place within the jurisdiction of a Mandal Panchayat shall be used as a shop for running any business. Under the "1968 Rules", "no objection" is required for the purpose of granting licence for running a liquor shop. When once the Mandal panchayat grants 'no objection' certificate and on the basis of that the licence for running a liquor shop is obtained, subsequently, it would not be open to the Mandal panchayat to refuse to grant licence for running a liquor shop. Therefore, in effect, granting of 'no objection' certificate by the Mandal Panchayat would result in granting a licence for running a shop. Under the provisions of the Act, a separate licence has to be obtained for running a liquor shop. Under the "1968 Rules", the deputy Commissioner is the licensing authority to issue licence for running a liquor shop. Therefore, we are of the view that the grant of 'no objection' certificate by the mandal Panchayat becomes an inseparable or an integral part of licence to be granted for running a shop and as such it is the Mandal Panchayat which is the authority to grant 'no objection' certificate. Before the Zilla Parishad, as revealed from the records, the resolution dated 4-1-1988 produced as Annexure 'b' in the writ petition passed by the Mandal Panchayat, appears to have been relied upon. However, it is contended by Sri Gangadharapa, learned counsel for the 4th respondent, that the Zilla Parishad has not relied upon that resolution.
Before the Zilla Parishad, as revealed from the records, the resolution dated 4-1-1988 produced as Annexure 'b' in the writ petition passed by the Mandal Panchayat, appears to have been relied upon. However, it is contended by Sri Gangadharapa, learned counsel for the 4th respondent, that the Zilla Parishad has not relied upon that resolution. However, the zilla Parishad says that the power exercised by the Mandal Pradhan is in order and there has been no misuse of power by Mandal Panchayat Pradhan since he was authorised by Mandal Panchayat to dispose of the case. The aforesaid observation in the order of the Zilla Parishad as per Annexure-C to the writ petition, can only be understood with reference to the resolution dated 4-1-1988 of the Mandal panchayat, as otherwise there is no resolution relied upon by either of the parties authorising Mandal Pradhan to issue 'no objection' certificate. The resolution dated 4-1-1988 reads thus: It is not possible to hold that the aforesaid resolution has authorised the Mandal pradhan to issue 'no objection' certificate. The said resolution only related to the application received on 4-1-1988 for grant of 'no objection' certificate. It did not relate to any application received thereafter. Therefore, we do not propose to go into the question whether the Mandal Panchayat delegated the power to the Pradhan in this regard. We are of the view that Mandal Pradhan was not competent to issue 'no objection' certificate. It was the Mandal Panchayat which was competent to grant 'no objection' certificate for grant of licence for running a shop as per Section 69 of the Act. In this view of the matter, the 'no objection'certificate issued by the Mandal pradhan cannot be sustained. ( 6 ) FOR the reasons stated above, this appeal is allowed. The order dated 18thseptember, 1992, passed in Writ Petition No. 2848 of 1992 is set aside. The 'no objection' certificate dated 29-6-1991 issued by the Pradhan, Mandal Panchayat, chelur, Gubbi Taluk, produced as Annexure-A is quashed. Liberty is reserved to the mandal Panchayat, Chelur, to consider the matter afresh in accordance with law and in the light of the observations made in this order. --- *** --- .