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2014 DIGILAW 772 (KER)

Salih Kodappana v. State of Kerala

2014-10-01

J.SURENDRA MOHAN

body2014
JUDGMENT : J. Surendra Mohan, J. The petitioner is a native of Mukkam Grama Panchayat. The fourth respondent wanted to start a Bar attached Hotel. For the purpose, he had sought for permission from the second respondent Panchayat. Permission was not granted. The fourth respondent therefore challenged the proceedings of the Panchayat before the Tribunal for Local Self Government Institutions, Thiruvananthapuram (hereinafter referred to as the "Tribunal" for short) in Appeal No.292 of 2013. The petitioner claiming to be a person interested in the outcome of the controversy had got himself impleaded therein. The petitioner has filed this writ petition challenging Ext.P4 order of the Tribunal. 2. As per Ext.P4 order, the Appeal of the fourth respondent has been allowed. The third respondent has been directed to take a fresh decision on the application submitted by the petitioner in the light of the directions given in paragraph 19 of Ext.P4 order. In paragraph 19, the fourth respondent has been directed to submit a fresh application seeking permission to establish a Bar attached Hotel specifying the area with respect to which the permission is sought. Upon receipt of such application, the third respondent has been directed to consider the same in the correct and legal perspective or without being carried away by the apprehension of the people of the locality and to pass appropriate orders thereon. 3. According to Adv. Ziyad Rahman, who appears for the petitioner the interpretation placed by the Tribunal on section 232(2) of the Kerala Panchayat Raj Act, 1994 is erroneous and requires to be clarified. The Tribunal has in Ext.P4 proceeded on the assumption that, considerations of public peace, morality, convenience or nuisance are to be taken into account only while exercising the power under sub section 4 of section 232, in the matter of shifting a Bar Hotel or an Abkari shop. Such considerations would not have any relevance while exercising the power under section 232(2) of the Act. The only question to be considered by the Panchayat while exercising power under section 232 (2) of the Act is whether the distance stipulated by the Abkari Act, 1077ME has been complied with or not. The above interpretation according to the counsel places a restriction on the power of the Panchayat, which is not discernible from the wordings of the provision. 4. Adv. The above interpretation according to the counsel places a restriction on the power of the Panchayat, which is not discernible from the wordings of the provision. 4. Adv. M.G. Karthikeyan who appears for the fourth respondent on the other hand contends that, though the Tribunal has attempted to interpret the scope of section 232 in Ext.P4 order, the direction that has ultimately been granted is only to consider the application of the fourth respondent, in accordance with law. It is also the contention of the counsel that, at the time of granting initial permission, the Panchayat would not be in a position to ascertain whether any nuisance was likely to emanate from the establishment that is proposed to be set up. The said aspect would be clear only after the establishment actually starts functioning. In such an event, the Panchayat has the power under sub section 4 of section 232, in exercise of which the establishment can either be ordered to be shifted or directed to be closed down on one of the grounds mentioned in the said provision. Since the considerations mentioned in subsection 4 of section 232 are available only in the matter of ordering shifting or closure of an establishment, there is absolutely no justification to import such grounds into section 232(2) which has not incorporated the said grounds. Therefore, it is contended that the interpretation of the Tribunal does not require any clarification by this Court. Adv. P.J. Mathew appears for the Panchayat. 5. Heard. Sub sections 2 to 5 of section 232 of the Kerala Panchayath Raj Act, 1994 inserted by the Kerala Panchayat Raj (Amendment) Act, 2013 reads as follows: "2. Notwithstanding anything contained in the Abkari Act, 1077 (1 of 1077) or in any other law for the time being in force, no person shall, without previous permission in writing of a Village Panchayat and otherwise than in accordance with the conditions specified in the permission, establish an Abkari shop within a Village Panchayat area. 3. While granting permission to establish an Abkari shop near an educational institution or place of worship, the distance limit prescribed in the Abkari Act for the time being in force or the rules framed thereunder shall be complied with and the Village Panchayat shall not grant permission to establish an Abkari shop within the said distance limit. 4. 3. While granting permission to establish an Abkari shop near an educational institution or place of worship, the distance limit prescribed in the Abkari Act for the time being in force or the rules framed thereunder shall be complied with and the Village Panchayat shall not grant permission to establish an Abkari shop within the said distance limit. 4. A village Panchayat shall be competent, in the interest of public peace or morality or on the grounds of convenience or nuisance, to order the shifting of an Abkari shop from the place where it is situated to another or its closing within a period not exceeding fifteen days, as may be directed in this behalf. 5. Notwithstanding anything contained in this section, the provisions of sub-sections (2) to (4) shall not be applicable to any Abkari shop existing on 25th November, 2012, the date of commencement of the Kerala Panchayat Raj (Fourth Amendment) Ordinance, 2012 (63 of 2012) or, subject to all existing legal provisions, for re-establishing the toddy shops existing on the said date, in the area within the boundaries allotted for establishing them. Explanation:- "Abkari shop" means a toddy shop or a foreign liquor shop or a foreign liquor retail shop or an establishment having FL-9 licence or a bar hotel, under the Abkari Act, 1077 and the rules made thereunder" 6. A reading of sub section 2 of section 232 makes it clear that the said provision has enacted a prohibition against establishing an Abkari shop within a Village Panchayat area. The expression "Abkari Shop", as per the explanation includes a Bar attached Hotel also. Therefore, subsection 2 of section 232 makes it clear that a person desirous of establishing an Abkari shop or a Bar Hotel as in this case, could do so only with the prior permission of the Village Panchayat. The said provision does not place any restriction on the power of the Panchayat to grant permission. Nor does it restrict the power of the Panchayat to grant or refuse permission, in any manner. However, subsection 3 places a restriction on the power of the Panchayat to grant permission by prescribing that, where the Abkari shop is near an educational institution or place of worship, the distance prescribed in the Abkari Act shall be complied with. Nor does it restrict the power of the Panchayat to grant or refuse permission, in any manner. However, subsection 3 places a restriction on the power of the Panchayat to grant permission by prescribing that, where the Abkari shop is near an educational institution or place of worship, the distance prescribed in the Abkari Act shall be complied with. Sub section 4 which is a power either to shift or close down an Abkari shop has been confined only to the grounds mentioned therein, namely in the interests of public peace or morality or on the grounds of convenience or nuisance. The resultant position therefore is that, while exercising the discretion conferred on the Panchayat under subsection 2 of section 232, there is no restriction on the power of the Panchayat disentitling it from considering all the relevant factors necessary for the purpose of deciding whether to grant or refuse the permission. 7. In Ext.P4, what has been directed by the Tribunal is only consideration of an application that the fourth respondent has been directed to submit afresh. The said application has been directed to be considered in accordance with law. In view of the above, I do not consider it necessary to interfere with Ext.P4 except to clarify the interpretation placed on section 232 of the Act, as indicated above. In view of the above, this writ petition is disposed of directing the third respondent to consider the application of the fourth respondent in accordance with law, as per direction contained in Ext.P4 in accordance with the interpretation of the legal provision set out hereinabove.