IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 25TH NOVEMBER 2009 / 4TH AGRAHAYANA 1931 WP(C).No. 20093 of 2009(F) -------------------------------------- PETITIONER: ------------------- HARIKUMAR T.B., AGED 30 YEARS, S/O. BALAKRISHNAN NAIR, ATTEDATHU HOUSE, GREEN KERALA PLANTATIONS, MUTHOLI P.O., PALA, KOTTAYAM DISTRICT. BY ADV. MR.JOBI JOSE KONDODY. RESPONDENTS: ------------------------ 1. MUTHOLI GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, MUTHOLI P.O., PALA, KOTTAYAM. 2. THE SECRETARY, MUTHOLI GRAMA PANCHAYATH, MUTHOLI P.O., PALA, KOTTAYAM DISTRICT. 3. ANITHA JAGANIVAS, PIDIKKAPARAMBIL HOUSE, KEEZHUVANKKULAM P.O., PALA, KOTTAYAM DISTRICT. 4. JOY JOSEPH, NADUVILA KANGAZHAKATTU HOUSE, MUTHOLI P.O., PALA, KOTTAYAM DISTRICT. R1 & R2 BY MR.SUNIL CYRIAC, S.C, R3 & R4 BY ADVS. MR.N.RAGHURAJ, SMT.K.AMMINIKUTTY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/11/2009,ALONG WITH R.P. NO.1124/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.20093/2009-F: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE REPRESENTATION DTD. 15/07/2008 SUBMITTED BY THE NEIGHBOURS OF THE R.4. INCLUDING THE PETITIONER. EXT.P.2: COPY OF THE STATEMENT FILED BY THE 1ST AND 2ND RESPONDENT DTD. 14/10/2008 IN W.P.(C).NO.22728/2008. EXT.P.3: COPY OF THE JUDGMENT DTD. 14/10/2008 PASSED BY THIS HONOURABLE COURT IN W.P.(C).NO.22728/2008. EXT.P.4: COPY OF THE JUDGMENT DTD. 01/01/2009 PASSED BY THIS HONOURABLE COURT IN W.A. NO. 2397/2008. EXT.P.5: COPY OF THE JUDGMENT DTD. 05/01/2009 PASSED BY THIS HONOURABLE COURT IN C.C.C. NO.1783/2008. EXT.P.6: COPY OF THE REPRESENTATION SUBMITTED BY THE R.4. TO THE R.2. DTD. 20/11/2008. EXT.P.7: COPY OF THE STOP MEMO DTD. 05/12/2008 ISSUED TO THE 3RD AND 4TH RESPONDENTS BY THE R.1. EXT.P.8: COPY OF THE REPLY TO EXT.P.7 DTD. 16/12/2008 ISSUED BY THE R.4. TO THE R.2. EXT.P.9: COPY OF THE REPRESENTATION DTD. 13/01/2009 SUBMITTED BY THE R.4. TO THE R.2. EXT.P.10: COPY OF THE DECISION TAKEN BY THE COMMITTEE OF THE R.1. DTD. 11/03/2009. EXT.P.11: COPY OF THE JUDGMENT DTD. 16/03/2009 PASSED BY THIS HONOURABLE COURT IN W.P.(C).NO.4502/2009. EXT.P.12: COPY OF THE JUDGMENT DTD. 06/04/2009 PASSED BY THIS HONOURABLE COURT IN W.P.(C).NO.11338/2009. EXT.P.13: COPY OF THE REPRESENTATION SUBMITTED BY THE R.4. TO THE PANCHAYATH COMMITTEE DTD. 15/04/2009. EXT.P.14: COPY OF THE DECISION OF THE MEETING OF THE R.1. HELD ON 22/04/2009. EXT.P.15: COPY OF THE APPEAL MEMORANDUM FILED BY THE R.4. BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS DTD. 11/05/2009. EXT.P.16: COPY OF THE ORDER DTD. 22/06/2009 IN APPEAL NO.391/2009 PASSED BY THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. W.P.(C). NO.20093/2009-F: RESPONDENTS' EXHIBITS: EXT.R4.A: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE R.2. EXT.R4.B: COPY OF THE REPLY GIVEN BY THE R.2. TO THE PETITIONER DTD. 22/07/09. EXT.R4.C: COPY OF THE RESOLUTION BEARING NO.VII (1) DTD. 11/03/2009. EXT.R4.D: COPY OF THE COMMUNICATION ISSUED BY THE R.2. //TRUE COPY// P.A. TO JUDGE. Prv. THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P.(C) No.20093 OF 2009 & R.P.No.1124 OF 2009 IN W.P.(C).No.24463 OF 2009 ------------------------------------------- Dated this the 25th day of November, 2009 JUDGMENT 1.These petitions are filed by one Harikumar. He claims to be a person living in the locality where Anitha Jaganivas intends to run a toddy shop in a building belonging to Joy Joseph. 2.The parties were heard on earlier rounds also. Ultimately, it was noticed that Anitha Jaganivas was conducting the toddy shop in a different building and wanted the shop to be shifted to the structure in question, which, at that point of time, was one which was permitted to be put up as a log shed. A Division Bench of this Court clarified that the judgment issued by the learned single Judge in that regard would not stand in the way of Joy Joseph or Anitha Jaganivas having the user of the building changed with the consent of the panchayat authorities. On application before the secretary of the grama panchayat, the matter stood stagnant. The panchayat WPC.20093/09& RP.1124/09 2 committee took up the matter and rejected the request. The owner of the premises went to the Tribunal for Local Self Government Institutions and obtained an order wherein the Tribunal stated that with the passage of time, there was a deemed grant even at the stage when the matter was pending before the secretary. Accordingly, the decision of the panchayat committee was set aside. This decision of the Tribunal is challenged by Harikumar in W.P(C).20093/09. His plea therein is that he was not heard by the Tribunal or by the panchayat committee, in spite of the direction of the Division Bench. He further states that the change of user has been made after it was equivocally stated that the building in question is only a log shed. 3.The change of user that stands granted by the decision of the Tribunal is only that the building may be put to any commercial use. It does not say that the building can be put to use as a toddy shop. Obviously therefore, even neighbours WPC.20093/09& RP.1124/09 3 cannot have objection unless the building is put to use to any objectionable purpose. 4.It was in the aforesaid context that an interim order was issued on the writ petition that any action taken on the basis of the decision of the Tribunal would be provisional and subject to further orders. However, the panchayat secretary took the stand that he would decide on the matter only after this Court disposed of W.P(C).20093/09, when Anitha Jaganivas filed an application for D & O licence. W.P(C).24463/09 was thereupon filed by Anitha Jaganivas. This Court noticed at the stage of admission that the secretary of the grama panchayat had essentially tried to fork the proceedings which was permitted to go on as per the interim order in W.P(C).20093/09. The judgment dated 29.10.2009 was accordingly issued recording the submission on behalf of the panchayat that the action of the secretary, complained of, would be recalled. Harikumar has sought review of that judgment by filing R.P.No.1124/09, stating that he is also entitled to be heard, being apprehensive WPC.20093/09& RP.1124/09 4 about the submission made on behalf of the panchayat, as recorded in the judgment, that D & O licence would be provisionally considered for grant. 5.With all the aforesaid, the following factors emerged: (i) Harikumar, who claims to be only a person living in the vicinity, is not entitled to challenge the decision of the Tribunal for LSGIs on facts or in law since all that the Tribunal has said is that there is a deemed grant of the change of user and such change of user recognised by the Tribunal is only a user of the building for a commercial purpose. If at all he is entitled to, he can object only to the grant of licence for any regulated or objectionable activity. (ii) In the light of the directions issued by this Court even earlier, the panchayat secretary is duty bound to provide Harikumar an opportunity of being heard in opposition to any application for grant of D & O licence to Anitha Jaganivas or to WPC.20093/09& RP.1124/09 5 Joy Joseph for running a toddy shop in the structure in question. (iii) No courts have, until now, decided on the objection of Anitha Jaganivas and Joy Joseph regarding Harikumar's locus standi to object to the grant. That question also has to be considered. 6.With the aforesaid, without interfering with the decision of the Tribunal which is challenged, it is ordered directing that the panchayat secretary will hear Harikumar, Joy Joseph and Anitha Jaganivas for grant of D & O licence to run the toddy shop and a decision taken within a period of four weeks from the date of receipt of a copy of this judgment. It is ordered that the panchayat secretary will consider also the objection of Anitha Jaganivas and Joy Joseph that Harikumar does not reside in the locality. It is further clarified that all issues are left open. Orders shall be issued on the representations of WPC.20093/09& RP.1124/09 6 Harikumar and on any objections of Anitha Jaganivas and Joy Joseph. The review petition stands allowed and the judgment sought to be reviewed will stand modified to the aforesaid effect. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.30/11.