IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 15TH FEBRUARY 2008 / 26TH MAGHA 1929 WP(C).No. 4989 of 2008(R) ------------------------- PETITIONER: ------------ SIVADAS P.K., PALARA HOUSE EZHACHERY P.O., KOTTAYAM. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENTS: ------------- 1. THE DISTRICT MAGISTRATE, KOTTAYAM. 2. KADANAD GRAMA PANCHAYAT, KADANAD P.O. KOTTAYAM 686 653 REPRESENTED BY ITS SECRETARY. 3. THE SECRETARY, KADANAD GRAMA PANCHAYAT KADANAD P.O., KOTTAYAM 686 653. BY SHRI.K.J.MUHAMMED ANZAR, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE, J. ------------------------- W.P.(C) No. 4989 of 2008 --------------------------------- Dated, this the 15th day of February, 2008 J U D G M E N T Under challenge in this writ petition is Ext.P4 order of the District Magistrate, which was passed pursuant to directions of this Court in writ petition No.25282/07. Also under challenge is Ext.P5 consequential order passed by the Panchayat canceling the licence which had been given to the petitioner by the Panchayat for conducting hotel in the room in question. 2. The issue before the District Magistrate was whether it was from the room in possession of the petitioner, that the contraband liquor was seized. The petitioner’s case was that it was not from that room the liquor was seized. According to him, seizure was from the room in possession of one Mr.Joy Joseph. To substantiate his contention, the petitioner relied on an agreement purporting to have been executed between Mr.Joy Joseph and Mr. Muraleedharan, the owner of the building. The District Magistrate found on the basis of the investigation conducted by the excise department that the agreement put in evidence by the petitioner was a bogus one. The District Magistrate has also found that the track record of the petitioner was not quite good and seven cases WP(C) No. 4989/2008 -2- have been registered against him and that he was convicted in one case, while offence in four cases were compounded. Ultimately in Ext.P4, the District Magistrate has found that the petitioner has violated the conditions of the licence given to him since he has collected and sold liquor from the room in which licence was given by the Panchayat only for conducting hotel/tea shop. The District Magistrate, accordingly, disposed of the matter observing that the Panchayat Secretary can cancel the licence issued in favour of the petitioner and the land lord can be directed to rent out the room afresh. 3. Shri. K.J.Mohammed Anzar, learned Government Pleader submits that it is open to the Panchayat Secretary to have an independent decision since the District Magistrate has only said that the Panchayat Secretary is free to cancel the licence. Several grounds have been raised in this writ petition and Shri.Philip T.Varghese, learned counsel for the petitioner has addressed very extensively on those grounds. My attention was drawn by Shri.Philip T.Varghese to ground No. K, wherein it is stated that the finding of the District Magistrate regarding the track record of the petitioner is wrong, and that he was convicted only in two petty WP(C) No. 4989/2008 -3- cases which had nothing to do with liquor storage or sale of liquor. It cannot be said that that the submissions of learned counsel are totally unattractive. I also find that the finding of the District Magistrate that liquor was sold from the room in possession of the petitioner is contrary to the reports submitted by the Secretary of the Panchayat. Going by the assessment records maintained by the Panchayat, only one room number has been assigned for the entire building having as many as seven rooms. The Panchayat Secretary in his report has reported that seven different businesses including the petitioner’s business are being carried out in these rooms. This, according to me, gives some support to the petitioner’s case that he is not in possession of only one room. May be it is true that the agreement which was put in evidence by the petitioner was not a genuine one. But important question is whether the petitioner had any possessory control over the room wherefrom the liquor was seized, which according to the Panchayat Secretary’s report is the room where Shri.Mujeeb is conducting furniture / upholstery business. Under these circumstances, the last submission of Shri.Philip T.Varghese that the petitioner proposes to close down his tea shop by 31/03/2008 and that he be permitted to continue to WP(C) No. 4989/2008 -4- run the tea shop in accordance with law till then, has some appeal. Whatever that be, since disputed questions of fact are likely to arise in this case, I am of the view that this Court should not invoke the powers conferred under Article 226 of the Constitution of India to enquire into the dispute. I relegate the petitioner to his remedy before the Tribunal for Local Self Government Institutions. Since Ext.P5 has been issued on the basis of resolution of the Committee, petitioner is permitted to conduct the hotel business notwithstanding Ext.P5 till 31/03/2008. Further conduct of the business will be on the basis of the decision, which will be taken by the Tribunal in the prospective appeal. This writ petition is disposed of as above. (PIUS C.KURIAKOSE, JUDGE) jg