IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 24TH JUNE 2011 / 3RD ASHADHA 1933 WP(C).No. 17111 of 2011(L) -------------------------- PETITIONER(S) :- ------------------------ 1. A.DEVARAJAN, ARIMBOOTHU, KONDIPARAMBA, POONTHAVANAM P.O., NENMENI VILLAGE, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT. 2. T.K.SHAJI, THEKINKATTIL HOUSE, KEEZHATTOOR P.O., PERINTHALMANNA, MALAPPURAM DISTRICT. BY ADV. SRI.M.K.DAMODARAN, SENIOR ADVOCATE SRI.P.K.VIJAYAMOHANAN SRI.ALAN PAPALI SRI.GILBERT GEORGE CORREYA SRI.NISHIL.P.S. RESPONDENT(S) :- --------------------------- 1. THE KEEZHATTOOR GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, POONTHAVANAM P.O., PIN 679 325, PERINTHALMANNA, MALAPPURAM DISTRICT. 2. THE DEPUTY COMMISSIONER OF EXCISE, EXCISE DIVISIONAL OFFICE, MALAPPURAM, PIN 679320. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt WP(C).No. 17111 OF 2011 APPENDIX Petitioner's Exhibits :- Ext.P1 :- Copy of licence No.M.73/2010-11 dated 27.4.2010 issued by the 2nd respondent. Ext.P2 :- Copy of the Ownership Certificate No.A5-2383/10 dated 12.4.2010 issued by the 1st respondent. Ext.P3 :- Copy of the Notice dated 10.6.2011 with its enclosure issued by the 1st respondent. Ext.P4 :- Copy f the Envelope dated 16.6.2011 despatching Ext.P3 by the 1st respondent. Respondent's Exhibits :- NIL. //True Copy// P.A. to Judge ANTONY DOMINIC, J. ----------------------------- W.P.(C).No.17111 of 2011 ------------------------------------ Dated this the 24th day of June 2011 J U D G M E N T Petitioner and other partners are the licensees of Toddy Shop No.45/2010-11, Group No.III of Perinthalamanna Range, Keezhattoor Panchayath, Malappuram District. The said shop is situated in building No.KP-III/164. It is stated that the period of licence is presently extended till 31.7.2011. While so, the respondent Panchayath passed Ext.P3 resolution authorizing the Secretary to close down the Toddy shop. 2. Acting upon Ext.P3 resolution the Secretary has issued letter dated 10.6.2011 requiring the petitioners to close down the shop within three days. According to the petitioners, the letter was received only on 21.6.2011 and therefore, the writ petition has been filed with the following W.P.(C).No.17111 of 2011 -: 2 :- prayers :- “(i)To issue a writ of certiorari quashing Ext.P3; (ii)To declare that the 1st respondent having allowed to conduct Toddy Shop No.45/2010-11 in Building No.KP- III/164 from 01.04.2010 is estopped from contending that the Toddy Shop is functioning without Panchayat licence and establishing the Ownership of the building and has to stop its functioning; (iii)To declare that as per the Kerala Panchayat Raj Act, 1994 the Panchayat has no authority to insist for licence for conduct of the Toddy Shop.” 3. A reading of Ext.P3 resolution of the Panchayath discloses that among others, one of the reasons which made the Panchayath to order for closure of the shop is that it does not have a licence issued under the Kerala Panchayath Raj Act (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules 1996. Although it is the case of the learned senior counsel for the petitioners that in view of the amendment of Sec.232 of the Panchayat Raj Act deleting sub secs.(2), (3) and (4) thereof, there is no requirement of licence under the said Rule, this Court is W.P.(C).No.17111 of 2011 -: 3 :- bound by the Division Bench judgment in Bosco Antony v. State of Kerala [2007 (4) KLT 526] where, rejecting the very same contention, it has been held thus :- “Heard learned counsel on both sides. As long as Ext.P1 licence remains in force, the petitioner may be entitled to run the shop, subject to satisfying the other statutory requirements, if any. For running any business included in Schedule I of the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules 1996, licence under the said Rules is required. “Abkari Shops-Storing and Selling” is item No.139 in Schedule I of the above said Rules. So, the petitioner is bound to take licence under the said Rules for running the shop. But, learned counsel for the petitioner pointed out that earlier there were express provisions under sub-ss. (2), (3) and (4) of S.232 of the Kerala Panchayat Raj Act, concerning grant of permission for running toddy shops within the jurisdiction of a Grama Panchayat. Since those provisions were later deleted with effect from 24.3.1999, the learned counsel points out that the above Rules in so far as they concern toddy shops, have no efficacy. But we notice that even in the absence of sub-ss.(2), (3) and (4) of S.232, the remaining provisions contained in sub-s.(1) of the said section of the Kerala Panchayat Raj Act support the inclusion of abkari shops under the Schedule to the Rules. Therefore, the contention of the leaned counsel for W.P.(C).No.17111 of 2011 -: 4 :- the petitioner is plainly untenable. So, even though the petitioner has got Ext.P1 licence, he can run the toddy shop in the Panchayat area only after getting licence under the above said rules from the said Panchayat.” Therefore, this argument of the learned senior counsel cannot be accepted and is rejected. 4. It was also contended by the learned senior counsel for the petitioners that the resolution of the Panchayat has been without putting the petitioners on notice or affording them an opportunity of hearing. According to him, for violation of the principles of natural justice, Ext.P3 is to be interfered with in a proceedings under Article 226 of the Constitution of India, even if, alternate remedy is available to the petitioners. As contended by the learned senior counsel, if principles of natural justice are violated, alternate remedy does not prevent the aggrieved person from seeking relief in a proceeding under Article 226 of the Constitution of India. Still, violation of the principles of natural justice will justify W.P.(C).No.17111 of 2011 -: 5 :- interference only in a case where petitioners have proved to have suffered prejudice on account of violation of natural justice. In this case, it is the admitted factual position that the petitioners did not possess a licence under the Rules referred to above. Therefore, even if notice was issued, that would have not in any manner improved the case of the petitioners. Hence, absence of notice or hearing, has not caused any prejudice to the petitioners. Therefore, I am not persuaded to interfere with Ext.P3 resolution of the Panchayat. Writ petition is dismissed accordingly. ANTONY DOMINIC, JUDGE. Jvt