IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 10TH JUNE 2008 / 20TH JYAISHTA 1930 WP(C).No. 11626 of 2008(H) ---------------------------------------- PETITIONER: ------------------- VELLARATHIL AYYAPPAN, S/O.PARANGODAN, AGED 42 YEARS PULLUPARAMBA LAKSHAM VEEDU S.C.COLONY PATHIRIKKODE P.O., EDAPPATTA, MELATTOOR, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR SRI.K.RAKESH RESPONDENTS: ------------------------- 1. THE DISTRICT COLLECTOR, MALAPPURAM. 2. THE ASSISTANT EXCISE COMMISSIONER, MALAPPURAM. 3. THE EXCISE INSPECTOR, PERINTHALMANNA EXCISE RANGE, MALAPPURAM DISTRICT. 4. THE EDAPATTA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, EDAPATTA, MALAPPURAM DISTRICT. 5. N.KRISHNANKUTTY, S/O. AYYAPPANKUTTY, MULLAMPRA HOUSE, MELATTOOR, MALAPPURAM DISTRICT. 6. N. CHANDRAN, S/O. KRISHNANKUTTY, NADAKKAVIL HOUSE, VILAYOOR P.O. PATTAMBI, PALAKKAD DISTRICT. 7. P.M. SCARIA, S/O. MATHEW PUNNASSERY HOUSE, PATHIRIKKODE, MELATTOOR, MALAPPURAM DISTRICT. 8. P.S.RAJAN, S/O. SCARIA,PUNNASSERYN HOUSE PATHIRIKKODE, MELATTOOR, MALAPPURAM DISTRICT BY GOVERNMENT PLEADER SRI. K.V. MANOJKUMAR BY ADV. SRI.SHAJI P.CHALY - R8 SRI.M.P.MADHAVANKUTTY- R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/06/2008 ALONG WITH WPC NO. 15132 OF 2008, THE COURT ON 10/06/2008 DELIVERED THE FOLLOWING: Kss WPC.NO.11626/2008 H APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE MASS PETITION DTD. 23/09/2006 SUBMITTED BEFORE THE R.D.O., PERINTHALMANNA. EXT.P2: COPY OF THE ORDER OF THE R.D.O., PERINTHALMANNA DTD. 4/10/2006. EXT.P3: COPY OF THE RESOLUTION NO.5(1) OF THE EDAPATTA GRAMA PANCHAYATH DTD. 13/10/2006. EXT.P4: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C) NO.24950/2006 DTD.30/10/2006. EXT.P5: COPY OF THE REQUEST MADE BY THE PRESIDENT, EDAPATTA GRAMA PANCHAYATH DTD. 13/10/2006. EXT.P6; COPY OF THE JUDGMENT DTD. 13/3/2008 IN WP(C) NO.8565/2008 OF THIS HON'BLE COURT. EXT.P7: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER AND OTHERS DTD. NIL. EXT.P8: COPY OF THE CERTIFICATE ISSUED BY THE DISTRICT SCHEDULED CASTE DEVELOPMENT OFFICER DTD. 24/4/2007. EXT.P9: COPY OF THE COVERING LETTER DTD.22/03/2008 PRODUCED ALONG WITH EXHIBIT P6 JUDGMENT BEFORE THE 1ST AND 2ND RESPONDENTS. EXT.P10: COPY OF THE REPRESENTATION SUBMITTED BY THE PRESIDENT OF THE 4TH RESPONDENT PANCHAYATH BEFORE THE 2ND RESPONDENT DTD. 21/03/2008. RESPONDENT'S EXHIBITS: EXT.R8(1): COPY OF THE ABKARI LICENSE IN TODDY SHOP NO.59/2007-08 HAVING LICENSE NO.M-1/2007-08. EXT.R8(2): COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DTD. 31/03/08. EXT.R8(3): COPY OF THE JUDGMENT IN WP(C) NO.11998/08 DTD. 08/04/08. EXT.R8(4): COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DTD. 02/04/08. Kss ..2/- ...2...... WPC.NO.11626/2008 H EXT.R8(5): COPY OF THE MODIFIED INTERIM ORDER IN WP.11626/08 DTD. 11/04/08. EXT.R8(6): COPY OF THE JUDGMENT IN W.P.24950/06 AND 26448 DTD. 30/10/06. EXT.R8(7): COPY OF THE COUNTER AFFIDAVIT IN W.P.24950/06 DTD. 29/09/06. EXT.R8(8): COPY OF THE JUDGMENT IN WP.5850/07 DTD. 26/02/07. EXT.R8(9): COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT. EXT.R8(10): COPY OF THE JUDGMENT IN WP.33010/06 DTD. 20/08/07. EXT.R8(11): COPY OF THE COMMUNICATION ISSUED TO THE PANCHAYATH DTD. 05/05/08. /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J ----------------------------------------------------------------- W.P.(C).NOs.11626/2008&15132/2008 ----------------------------------------------------------------- Dated this the 10th day of June, 2008 JUDGMENT Petitioner in WP(c).No.15132/2008 is the license of toddy shops and the prayer sought for is to direct the 3rd respondent to issue licence to the petitioner in respect of shop No.55 of Perinthalmanna Excise Range. He is also seeking to quash Ext.P14. In WP(c).No.11626/2008, the petitioner therein is a resident in the neighbourhood of the premises in respect of which licence is sought and he is praying for a direction to the authorities not to grant licence in respect of the shop referred to above. The main reason assigned by the petitioner is that the shop is situated within the prohibited distance from Pulluparambu Scheduled Caste Laksham Veedu Colony and therefore the licence ought not to be granted. 2 2. According to the petitioner in W.P(c). No.15132/2008, by Ext.P2 proceedings of the Assistant Excise Commissioner, the shop in question was confirmed in his name. It is stated that, additional respondents had represented to the Assistant Excise Commissioner not to renew the licence unless licence is issued to the Panchayat. In view of the representations so made, the petitioner had filed Ext.P4 application before the respondent Panchayat on 2.4.2008 seeking licence from the Panchayat. It is stated that the receipt of Ext.P4, has been acknowledged by the Panchayat by issuing Ext.P16 dated 3.4.2008. It is contended that the application thus validly made by the petitioner was rejected by the Panchayat by Ext.P14 communication dated 13.5.2008. It is challenging Ext.P14 and seeking licence to the toddy shop in question, the writ petition is filed. 3. Learned counsel for the petitioner points out that the main reason stated in Ext.P14 for rejecting the licence is the presence of a scheduled caste colony within the 3 prohibited distance. According to him, as is evident from Ext.P10 order of the Asst. Excise Commissioner and Ext.P15, a certificate issued on behalf of the District Planning Officer, there is no such colony in existence and therefore the reason projected in Ext.P14 is incorrect. It is also stated that, though the site in question was notified, none had objected. Yet another contention that was seriously canvassed before me is that in terms of Section 236(3) of the Panchayat Raj Act, the petitioner is entitled to deemed grant as the Panchayat did not pass orders on Ext.P4 application and communicate the same, within 30 days of its receipt. It is contended that the inordinate delay on the part of the Panchayat happened despite this court's judgment in Ext.P5 requiring the Panchayat to take a decision on the application within one week. 4. The counsel for the Panchayat seriously disputed the claim of the petitioner regarding the absence of the scheduled caste colony. He had referred to Exts.R5(c), (d) and (e) certificates issued by the authorities including that 4 of the District Planning Officer, to contend that there in fact exists a scheduled caste colony and to disprove the statement made to the contrary in Ext.P15 list produced by the petitioner. He would also contend that Ext.P10 is an order passed by the Assistant Excise Commissioner which is relied on by the petitioner and that the said order was passed without issuing notice to the Panchayat and therefore according the learned counsel Ext.P10 order is not binding on the Panchayat. Learned counsel for the Panchayat would also submit that Section 236(3) though provides for a deeming licence, the same is always subject to the rules. It is submitted that, since the rules framed under the Abkari Act prohibit location of toddy shop within the prohibited distance, the deeming provision contained in Section 236(3) is inapplicable in such situation. 5. The counsel appearing for the petitioner in WP(c). No.11626/2008 also supports the arguments raised by the learned counsel for the Panchayat. He would canvas for the position that even if Ext.P4 the application was made to 5 the Secretary, still the Panchayat was well within its competence to consider the application and pass orders thereon. According to him, the existence of scheduled caste colony and public interest deserves rejection of Ext.P4 and that the Panchayat was justified in issuing Ext.P14. It is also pointed out that, in the absence of licence from the Panchayat, the toddy shop cannot function, even if there is licence issued by the Excise authorities. The counsel would also make reference to the judgment of the Division Bench of this Court in Bosco Antony V. State of Kerala( 2007(4) KLT 526). 6. I have considered the submissions made by both sides. In my view, what needs to be decided is as to whether the petitioner is entitled to the deemed grant of licence as contemplated in Section 236(3) of the Panchayat Raj Act. This section provides that if order on an application for a licence or permit is not communicated to the applicant within 30 days, or such period as may be prescribed in any class of cases, after the receipt of the application by the 6 Secretary, the application shall be deemed to have been allowed, for the period if any, for which it would have been ordinarily allowed and subject to the rules and by-laws and all conditions ordinarily imposed. Thus it is evident that, if decision on an application for licence is not communicated to the applicant within 30 days of its receipt, the applicant is entitled to have deemed licence as provided in the sub section. 7. In this case, Ext.P4 application dated 2.4.2008, has been received by the Panchauat on 3.4.2008 and they have acknolwedged its receipt by Ext.P16. It is also not in dispute that order on Ext.P14 that was passed on Ext.P4 was communicated to the petitioner only after 13.5.2009. Thus evidently Ext.P14 has been issued after 30 days of receipt of Ext.P4 and if so, the deeming provision as provided in Section 236(3) of the Panchayat Raj Act comes into operation. Such being the case, I must accept the contention of the learned counsel for the petitioner in WP (c).No.15132/2008 that he is entitled to deemed licence for 7 one year period for which ordinarily licence is granted. 8. In this context, I should refer to the contention of the learned counsel for the Panchayat and supported by the learned counsel for the petitioner in WP(c).No.11626/2008, that once order is passed by the Panchayat, the deemed licence will not survive such order and therefore once Ext.P14 is issued, thereafter, the petitioner has no licence. Though to the counsel for the Panchayat and the counsel for the petitioner in the connected case, I put a specific question as to whether this submission is supported by any statutory provision in the Act, both the counsel did not succeed in pointing out any statutory provision. Therefore this contention now raised does not have any statutory backing and I cannot accept the same. 9. However, I notice that even if an applicant is entitled to deemed licence, it is always open to the Secretary to suspend or revoke the licence if the circumstances as pointed out in sub section 9 of Section 236 are available. The power of suspension or revocation as per 8 sub section (9) is in no way controlled by the provisions contained in Section 236(3). 10. Coming to the contention of the learned counsel for the petitioner in WP(c).No.15132/08 that since he has deemed licence, the Excise authorities are obliged to grant licence, I should confess my inability to accept the case of the petitioner in that regard. The Panchayat Raj Act and the Abkari Act are statutes operating in different spheres and a grant of licence under one statute does not oblige the authorities under the other Act to accept the same and grant licence automatically. Therefore even if licence is granted, either deemed or otherwise, that by itself will not entitle such license for a licence under the Abkari Act. If I accept the plea to the contrary raised by the learned counsel for the petitioner in WP(c).No.1512/2008 that will lead to a situation where a license under the Panchayat Raj Act will be entitled to run toddy shops avoiding the provisions contained in the Abkari Act. 9 11. Therefore, I have to hold that irrespective of the grant of licence under the Kerala Panchayat Raj Act, either express or otherwise, when an application is made to the Excise Authorities for a licence under the Abkari Act, they are entitled to insist on compliance with the provisions contained in the Abkari Act and the rules framed thereunder. 12. In this case, if the Excise authorities, by making reference to Ext.R5(c), (d) and (e) come to a conclusion that there exists a scheduled caste colony within the prohibited distance the excise authorities will be perfectly justified in declining the licence. Therefore, it is for the petitioner to approach the Excise authorities in which case, it is for the excise authorities to consider the matter independent of the deemed grant that the petitioner has under the provisions of the Panchayat Raj Act. 13. In this case, it is seen that the petitioner has submitted Ext.P13 application before the Assistant Excise Commissioner, Malappuram for licence under the Abkari 10 Act. Therefore, it is for the 3rd respondent, to consider the same applying the provisions of the Abkari Act and the Rules framed thereunder and independent of the deemed licence that the petitioner has and pass appropriate orders on Ext.P13. 14. The writ petition will stand disposed of directing that the 3rd respondent shall consider Ext.P13 in the light of the observations made above and pass appropriate orders thereon. In the light of the directions as above, the WP(c). No.11626/2008 will also stand disposed of. ANTONY DOMINIC JUDGE vi. 11