IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 3RD APRIL 2009 / 13TH CHAITHRA 1931 WA.No. 833 of 2009() -------------------- AGAINST THE ORDER IN I.A. 3206/09 IN WPC.4053/2009 Dated 27/03/2009 .................... APPELLANTS/R4 & 6: ------------------------------- 1. PROF. C. MAMMACHAN, GENERAL CONVENER TODDY SHOP VIRUDHA SAMITHY, MANGANAM, KOTTAYAM. 2. ELIZABETH SUGATHAN, VAREPPALLIL MANGANAM POST, KOTTAYAM. BY ADV. SRI.MATHEW JOHN (K) SRI.AJEESH K.SASI RESPONDENTS/PWRIRIONWE & R1 TO 3 & 5: -------------------------------------------------------------- 1. V.V. SHIBY, S/O. VASUDEVAN VAZHAKULAM HOUS, CHIRAMCHIRA POST KOTTAYAM DIST. 2. THE DISTRICT COLLECTOR, KOTTAYAM. 3. THE REVENUE DIVISIONAL OFFICER, KOTTAYAM. 4. THE ASST. EXCISE COMMISSIONER, KOTTAYAM. 5. REV. K.C. MATHEW, SECRETARY, MUNDAKAPPADAM MANDIRAM SOCIETY MANGANAM, KOTTAYAM. R2 TO 4 BY GOVT. PLEADER SMT. R. BINDU ADV. SHRI. N. REGHURAJ FOR R1 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 833 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of April, 2009 JUDGMENT Balakrishnan Nair, J. The respondents 4 and 6 in the writ petition are the appellants. They feel aggrieved by the interim order passed by the learned Single Judge, in I.A.No. 3206 of 2009 in the writ petition. The said Interlocutory Application was filed by the first appellant, praying to vacate the interim order passed by the learned Judge, staying the operation of Ext.P8 order, which was passed by the District Collector, Kottayam under Section 54 of the Abkari Act. 2. The learned counsel for the appellants submitted that the District Collector has exercised the jurisdiction correctly, relying on the report of the Sub Inspector of Police. Ever since the commencement of the functioning of the toddy shop last year, the local people were carrying on an agitation against it. The W.A.No. 833 of 2009 2 shop is housed in a building in a thickly populated colony and there is only one small Panchayat road as common access to the shop and the colony. The use of the said road by the customers of the toddy shop is causing great inconvenience to the residents of the locality. So, the District Collector, taking note of the said fact and also the police report, correctly issued the order under Section 54 of the Abkari Act. Further, the learned counsel for the appellants pointed out that the licensee of the toddy shop has no licence under the Kerala Panchayat Raj Act. There is no pleading on this point in the writ petition. Only an oral submission was made at the time of hearing that he has got deemed licence, as his application for licence has not been rejected by the Panchayat. Therefore, the appellants prayed for vacating the interim order. 3. The learned counsel for the licensee attacked Ext.P8 order and supported the interim order of the learned Single Judge. According to him, the grounds under Section 54 of the Act have not been made out for passing an order in the nature of Ext.P8. When the Revenue Divisional Officer has reported, based on the report of the W.A.No. 833 of 2009 3 Sub Inspector, that at present there is no law and order problem or communal tension, the District Collector should not have acted on a police report received in May, 2008. The latest report speaks about the inconvenience and the objections of the people of the locality against the functioning of the shop. It does not speak of any law and order problem. The learned Government Pleader supported the order of the District Collector and submitted that it has been passed on valid grounds. 4. This appeal is filed against an interim order. If we deal with the matter on merits, we are sure, the parties will be prejudiced when the writ petition is finally heard. So, we will examine the impugned order of the learned Judge in the light of the principles laid down by this Court in K.S. Das v. State of Kerala (1992 (2) KLT 358 (FB). We notice that the view taken by the learned Judge, on the facts of the case, is a plausible view. It cannot be described as illegal or perverse. We also advert to the contentions of the learned counsel for the appellants that the shop is being run without Panchayat licence. The learned Single Judge has given liberty to the appellants to move the W.A.No. 833 of 2009 4 Panchayat authorities for appropriate action on that ground. If there is no licence, actual or deemed, the Panchayat has got every power to close down the shop, which is run without any licence. 5. Having regard to the facts of the case and the grounds raised, we feel that this is not a fit case, where this court should interfere with the interim order passed by the learned Single Judge. 6. Accordingly the appeal fails and it is dismissed. But it is made clear that we have not expressed any final opinion on the merits of the contentions of both sides. (K. BALAKRISHNAN NAIR) Judge (M.L. JOSEPH FRANCIS) Judge tm