Kerala High Court
P.V.Babu vs Thanneermukkam Grama Panchayath on 30 March, 2013
Author: C.T.Ravikumar
Bench: C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
WEDNESDAY, THE 13TH DAY OF AUGUST 2014/22ND SRAVANA, 1936
WP(C).No. 728 of 2014 (M)
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PETITIONERS:
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P.V.BABU, PADIKKAPARAMBU VELIYIL,
VARANADU PO, CHERTHALA
BY ADVS.SRI.R.KRISHNA RAJ
SMT.E.S.SONI
RESPONDENTS:
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1. THANNEERMUKKAM GRAMA PANCHAYATH
REPRESENTED BY ITS PRESIDENT
THANNEERMUKKAM GRAMA PANCHAYATH OFFICE,
CHERTHALA, ALAPPUZHA DISTRICT 688 527
2. SECRETARY
THANNEERMUKKAM GRAMA PANCHAYATH,
CHERTHALA, ALAPPUZHA DISTRICT 688 527
3. SABU.T, VILAYIL HOUSE, KARIKKAD PO,
THANNEERMUKKAM, ALAPPUZHA , PIN 688 527.
4. DILEEP, KOTTUMMEL VELY HOUSE, KARIKKAD PO,
THANNEERMUKKAM, ALAPPUZHA , PIN 688 527.
5. ANUMOD, KOTTUMMEL HOUSE, KARIKKAD PO,
THANNEERMUKKAM, ALAPPUZHA , PIN 688 527.
R3 - R5 BY ADV. SRI.P.V.JAYACHANDRAN
R1 & R2 BY ADV. SRI.JOBY CYRIAC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
13-08-2014, ALONG WITH W.P.(C)NO.8720 OF 2014, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 728 of 2014 (M)
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APPENDIX
PETITIONER'S EXHIBITS
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EXHIBIT P1 COPY OF THE LICENCE DATED 30/3/2013
EXHIBIT P2 COPY OF JUDGMENT IN WP NO.16494/2013 DATED 10/9/2013
EXHIBIT P3 COPY OF THE JUDGMENT IN WPC NO.26574/2013 DATED 4/11/2013
EXHIBIT P4 COPY OF JUDGMENT IN WA 1720/2013 DATED 12/11/2013
EXHIBIT P5 COPY OF THE FIR IN CR.NO.749/2013 DATED 4/12/2013
EXHIBIT P6 COPY OF THE APPEAL OF THE 3RD RESPONDENT DATED 19/12/2013
EXHIBIT P7 COPY OF THE OBJECTION OF THE PETITIONER DATED 28/12/2013
EXHIBIT P8 COPY OF THE ORDER OF THE IST RESPONDENT DATED 7/1/2014
EXHIBIT P9 COPY OF THE PHOTOGRAPHS.
RESPONDENTS' EXHIBITS : NIL
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// TRUE COPY //
TKS
P.S. TO JUDGE
"C.R."
C.T.RAVIKUMAR, J.
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W.P.(C)Nos.728 & 8720 of 2014
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Dated 13th August, 2014
JUDGMENT
The bone of contention of these writ petitions is a building bearing No.T.P.6/339 G of Thanneermukkam Grama Panchayat. Since the factual issues are intertwined and interrelated these writ petitions are taken up for joint consideration and disposal. W.P.(C)No.728 of 2014 is taken as the main case and hereafter in this judgment the parties are referred to in the order they are arrayed and the documents are referred to in the order they are set out in the said writ petition. The petitioner in the former writ petition is conducting a toddy shop in the aforesaid building bearing No.T.P.6/339 G of Thanneermukkam Grama Panchayat. The petitioner in the latter writ petition is the owner of the said building. Admittedly, the occupancy of the said building is residential and the grievance of the petitioner in the latter writ petition is against Ext.P2 reply received in response to her application for changing it as commercial occupancy to the effect that the said application could not be considered owing to the pendency of the former writ petition filed against the smooth functioning of the said shop. At the very outset, it is to be noted that there is conflict in interest between the petitioners.
WP(C).No.728 & 8720 of 2014 2
2. I will deal firstly with the issues involved and the arguments advanced in the former writ petition. The petitioner is a licencee to vend toddy and he was conducting Toddy Shop No.28/12-13 upon grant of licence with No.71/12-13. It was originally functioning in building No.T.P.6/819 of Thanneermukkam Grama Panchayat and subsequently, it was shifted to the building in question. Respondents 3 to 5 filed Ext.P6 appeal virtually, against the grant of the licence to the petitioner in the former writ petition. However, the learned counsel appearing for the petitioner submitted that in fact, no licence as such was issued by respondents 1 and 2 for the purpose of conducting the said toddy shop in the aforesaid building though the petitioner accrued a deemed licence for its functioning. The petitioner earlier submitted an application under Section 232 of the Kerala Panchayat Raj Act (for short `the Act') and under the Kerala Panchayat (Issue of licence to Dangerous and Offensive Trades and Factories) Rules, 1996 (for short `the Rules') for permission to conduct the toddy shop from the aforesaid building. It is the common case that the said application was not disposed of within a period of 30 days. Later, a question as to whether owing to the lapse of 30 days without a decision on that application the applicant accrued a deemed licence under Section 236(3) of the Act, came up for WP(C).No.728 & 8720 of 2014 3 consideration before this Court in W.P.(C)No.26574 of 2013. That writ petition was disposed of by this Court as per Ext.P3 judgment. Evidently, relying on a Division Bench decision of this Court in Mohan v. Sub Inspector of Police (2011 (1) KLT 1023) this Court held that on expiry of the statutorily prescribed period of 30 days without a decision on such an application the petitioner therein accrued a deemed licence to operate and the period of deemed licence would be one year from 4.10.2013. A third party appeal viz., W.A.No.1720 of 1993 was preferred against the said judgment. It was filed by the third respondent in this writ petition along with one Sajimon. The said writ appeal was disposed of by this Court as per Ext.P4 judgment. Virtually, as per Ext.P4, the Division Bench declined to interfere with the declaration granted by the learned Single Judge in Ext.P3 judgment. At the same time, it was made clear thereunder that the dismissal of the writ appeal was without prejudice to the right of the appellants to challenge the licence before any appropriate forum. Availing the liberty thus given by the Division Bench in Ext.P4 judgment Ext.P6 appeal was preferred by the appellants therein before the Committee of the first respondent Panchayat. On receipt of Ext.P6 the petitioner was put on notice and subsequently he filed Ext.P7 objection. Essentially, the petitioner herein challenged the very maintainability of Ext.P6 appeal filed under Section WP(C).No.728 & 8720 of 2014 4 276(1) of the Act. After overruling the said objection and holding that Ext.P6 appeal would lie under Section 276(1) of the Act the Committee of the Panchayat proceeded with the hearing of Ext.P6 appeal and passed Ext.P8 order. As per Ext.P8, it was found that, since the building in question situates in the midst of a thickly populated place and that the majority of people in the locality are against the functioning of the said toddy shop in the said building and that the building is a residential occupancy the request of the petitioner could not be acceded to. It is in the said circumstances that seeking quashment of Ext.P8 and issuance of a writ of mandamus directing the respondents not to interfere with the smooth functioning of the toddy shop T.S.No.28 functioning in Building No.T.P.6/339-G till the expiry of the appeal period as provided under Section 276 of the Act, the former writ petition has been filed. The petitioner in the latter writ petition, as noticed hereinbefore, submitted an application for changing the occupancy for the purpose of enabling the petitioner in the former writ petition to conduct the aforesaid toddy shop in the said building and she was informed vide Ext.P2 that it could not be considered owing to the pendency of the former writ petition.
3. I have heard the learned counsel for the petitioners in both these writ petitions, the learned standing counsel appearing for WP(C).No.728 & 8720 of 2014 5 respondents 1 and 2 and also the learned counsel appearing for respondents 3 to 5.
4. The arguments advanced by the learned counsel on both sides would reveal that the first point to be decided is whether Ext.P6 appeal could have been entertained by the Committee of the first respondent under Section 276 of the Act. According to the learned counsel for the petitioners a bare perusal of the provisions under Section 236(9) would reveal that in case of any grievance against the accrual of a deemed licence under Section 236(3) of the Act the aggrieved party has to resort to the remedy available under Section 236(9) seeking for its cancellation or revocation. In other words, according to the learned counsel appearing for the petitioners, the sole remedy in such circumstances is the one prescribed under Section 236(9) viz., seeking for its cancellation or revocation and at any rate, an appeal under Section 276 will not lie, in such circumstances. As noticed hereinbefore, with respect to the factual aspect that the petitioner accrued a deemed licence by virtue of operation of Section 236(3) is not in dispute and in fact, it is indisputable in the light of Exts.P3 and P4. It is evident that the third respondent along with Sajimon, the other appellant in W.A.No.1720 of 2013, filed Ext.P6 appeal raising grievances against the grant of WP(C).No.728 & 8720 of 2014 6 licence in favour of the petitioner in troth, the accrued `deemed licence' for functioning the toddy shop in the building concerned. Admittedly, Ext.P6 is filed under Section 276 of the Act. The learned Standing counsel appearing for respondents 1 and 2 and the learned counsel appearing for respondents 3 to 5 submitted that Ext.P6 appeal was maintainable under Section 276 of the Act and it was rightly entertained by the Committee of the first respondent and in such circumstances, if the petitioner is aggrieved by Ext.P8 his statutory remedy is to approach the Tribunal for Local Self Government Institutions. I will now proceed to consider the question as to what exactly is the remedy available to an aggrieved party against the accrual of a deemed licence under Section 236(3) of the Act to an applicant for licence. In other words, the question is whether an appeal will lie under Section 276 of the Act against such accrued deemed licence or whether a petition seeking its revocation or cancellation under Section 236(9) of the Act is the appropriate remedy under such circumstances.
5. The learned standing counsel appearing for respondents 1 and 2 referring to section 236(9) of the Act submitted that essentially, the power thereunder is nothing but a suo motu power exercisable by the Secretary of the concerned Panchayat and it is not a remedy WP(C).No.728 & 8720 of 2014 7 available to an aggrieved party as a matter of right. For the purpose of appreciating the said contention it is only apposite to refer to the aforesaid provision under Section 236(9). It reads thus:-
"236.(9) Any licence or permission granted under this Act or any rule made under it may at any time be suspended or revoked by the Secretary, if any of its restrictions, limitations or conditions is evaded or infringed by the grantee or if the grantee is convicted of a breach of the provisions of the Act or of any rules made under it in any matter to which such licence or permission relates or if the grantee has obtained the same by misrepresentation or fraud."
(emphasis added)
6. The opening part of the said sub-section itself would indicate that the power of suspension or revocation specifically provided thereunder is relating a licence/permit granted under the Kerala Panchayat Raj Act or any rule made thereunder. The three grounds or circumstances upon which such power could be invoked, at any time, by the Secretary of the Panchayat concerned is evident from the said section itself. They are: (1) If any of the restrictions, limitations or conditions in the licence or permission is evaded or infringed by the grantee (2) If the grantee is convicted of a breach of the provisions of the Act or of any rules made thereunder in any matter to which such licence or permission relates (3) If the grantee has obtained the same by WP(C).No.728 & 8720 of 2014 8 misrepresentation or fraud. The words `in the licence or permission', `by the grantee' employed in the first ground and the words `the grantee', `such licence or permission' employed in the second ground and the words `the grantee', `obtained the same' employed in the third ground would undoubtedly reveal that the power is exercisable by the Secretary in respect of any licence or permission granted under the Act or any rule made under it. I may hasten to add that I shall not be understood to have stated that the power to interfere with and suspend or cancel the authority or right of a person to conduct a particular activity or business to be done under a licence or permission will not be available to the Secretary of a Panchayat even in situations akin to evasion or infringement of any of the restrictions, limitations or conditions of any licence or permission under the Act or any rule made under it or even on conviction of a breach of provisions of the Act or any rule made under it in respect of any such matter merely because he obtained such an authority or right to engage in such activity or business by virtue of accrual of a deemed licence or permission therefor. This is because any such construction would enable such a person to do any such violation or activity with impunity. I am proceeding with consideration of the said provision further to ascertain whether the power under Section 236(9) is a suo motu power available to the Secretary of the concerned Panchayat or not. The word WP(C).No.728 & 8720 of 2014 9 `suo motu' is not employed anywhere in the section or in its caption. The clause `may at any time be suspended or revoked by the Secretary' occurring in the said section and the tenor of the said provisions, in its entirety and absence of any indication that it is a remedy statutorily available to be invoked by an aggrieved party would, however, suggest the nature of power exercisable by the Secretary and invariably, a further scanning would reveal that the said power could be exercised in the absence of any application from any quarters in that regard, but subject to the satisfaction of the grounds available thereunder. In such circumstances, I am of the view that though it is not specifically stated in Section 236(9) of the Act that the said power conferred on the Secretary of the Panchayat concerned is a suo motu power what is actually available and conferred on the Secretary concerned is a power to be exercised suo motu in appropriate circumstances subject to the satisfaction of the situations envisaged thereunder. Nonetheless, when a suo motu power is vested with an authority exercise of the said power could be triggered by any aggrieved party. The said view is fortified by a decision of this Court in Nirmala v. State of Kerala (2008 (2) KLT
376). In that case, this Court was dealing with the power under Section 67 of the Kerala Abkari Act which is admittedly, a suo motu power for revision vested with the Excise Commissioner. This court held that WP(C).No.728 & 8720 of 2014 10 though it is a suo motu power available with the Excise Commissioner it could be triggered in a given case at the request of an aggrieved person. Therefore, I am of the view that a party who is aggrieved by the accrual of a right of deemed licence under Section 236(9) could seek for invocation of the power vested with the Secretary by filing of an application. In other words, it cannot, as a matter of right as a statutorily prescribed remedy, be invoked by the aggrieved party and that apart, such an application even to trigger its exercise could be filed only in cases which will fall under any of the grounds referable thereunder.
7. Having found that seeking revocation or cancellation under Section 236(9) of the Act was not the appropriate remedy available to the 3rd respondent and the others who are aggrieved by the accrual of the deemed licence by the petitioner in the former writ petition the other question is whether the petitioner is right in contending that Ext.P6 appeal was not maintainable. Essentially, that contention of the petitioner is also founded on the fact that the shop in question was functioning in the building based on a deemed licence accrued to an applicant by virtue of operation of Section 236(3) of the Act and therefore, virtually no order of grant was issued by the authority. The WP(C).No.728 & 8720 of 2014 11 learned counsel attempted to canvass the position that Ext.P6 appeal should not have been entertained by the Committee of the Panchayat under Section 276 of the Act as it was beyond it's scope. It is only apposite to extract the relevant portion of the provision under Section 276 for a proper appreciation of the said contention. It reads thus:-
"276. Appeal and Revision.- (1) An appeal shall lie to the Panchayat against the notice issued or order passed or action taken by the President or Secretary in exercise of the powers conferred as per the provisions of this Act, rules, bye-laws or regulations made thereunder except Sections 235I, 235J, 235N, 235W and 235X.
Provided that an appeal or matters connected with tax shall be filed before the standing committee for finance of the Village Panchayat."
Evidently, nobody got a case that the petitioner in the former writ petition accrued any right by virtue of operation of or by virtue of any order passed under Sections 235I, 235J, 235N, 235W and 235X of the Act. The contention of the petitioner is that the Secretary of the first respondent Panchayat has not issued any notice or passed any order in the matter and no action was also taken by him in exercise of his power under the Act in this case and what was challenged in Ext.P6 was only the `accrued deemed licence'. In short, the contention of the petitioner is that when an applicant accrued a deemed licence owing to the failure WP(C).No.728 & 8720 of 2014 12 of the authority concerned to pass orders on the application within the stipulated time it cannot be said that an order was passed on the application for licence. In other words, according to the petitioner, such a licence is accrued not by virtue of any action or order but solely based on an omission or inaction to pass an order on such an application. To sum up the contention of the petitioners it is their case that an appeal under Section 276 would not have been and could not have been entertained by the Committee of the Panchayat. True that, it is not an action but it is an inaction on the part of the Secretary on the application that ultimately culminated in accrual of the deemed licence by virtue of operation of Section 236(3) of the Act. When an authority is vested with the power to decide a matter and an application seeking its invocation is filed in accordance with law, the authority vested with the said power is having a bounden duty to exercise that power and pass appropriate orders thereon. There cannot be any doubt with respect to the position that in such cases disuse of power is equally contemptuous as abuse or misuse of power. Therefore, I am of the view that the inaction or omission on the part of an authority in exercising the power conferred on that authority, within the statutorily stipulated time, if creates or confers a right on the applicant concerned then the parties, if any, aggrieved by such right created or conferred should be able to assail the same WP(C).No.728 & 8720 of 2014 13 effectively and as a matter of right. This is because such an inaction, whether willful or otherwise from the part of a competent authority could not create or confer an unassailable right on the applicant and any contra view may create unhealthy situation of willful disuse of power. In such cases `omission' or `inaction' has to be taken as an `act' done. In this Context, it is only apposite to refer to a decision of the Hon'ble Supreme Court in Amalgamated Electricity Co. (Belgam) Ltd. v. Municipal Committee, Ajmer reported in AIR 1969 SC 227 holding that `act includes illegal omission'. If something is to be done mandatorily going by a statute the failure to do in terms of the mandate can only be illegal and unlawful. The impact of the `inaction' or `omission' to pass an order on the application by virtue of the provision under Section 236(9) is also to be taken into account while considering the issue. Is it not akin to the grant of a licence or permit? What all acts could be done by the grantee of a licence/permit could be done by an applicant who accrued the licence/permit by virtue of the provisions under Section 236(9) as it is a deemed licence. In the said circumstances, I do not find any illegality in the action of the Committee of the Panchayat in having entertained an appeal and passing Ext.P8 order. In other words, I have no hesitation to hold that Ext.P6 appeal was maintainable and rightly entertained by the Committee under Section 276 of the Act. It is made clear that this Court WP(C).No.728 & 8720 of 2014 14 is not making any observation as to the sustainability of Ext.P8 on merits and the above finding pertains only to the sustainability of the action in entertaining and passing orders on Ext.P6 appeal. In other words, the correctness or otherwise of Ext.P8, on merits, can still be scrutinised. In view of my finding as above what remains to be considered is whether the petitioner in the former writ petition is to be relegated to avail the statutory remedy against Ext.P8. It cannot be said that the said petitioner is not having a statutory remedy to redress the grievance against Ext.P8. Even the petitioner did not have such a case. Once it is found that a statutory remedy is available normally this Court will be loath to interfere with such a matter in the absence of cogent reasons. This is the legal position obtained from the decision of the Hon'ble Apex Court in Devi Ispat Limited and another v. State Bank of India and others ((2014) 5 SCC 762). I do not find any cogent reason to be recorded for exercising extraordinary jurisdiction to entertain the challenge against Exts.P4 and P6 in this proceedings in the facts and circumstances of the case. Having answered the aforesaid legal question as above, I am of the view that the petitioner has to be left at liberty to avail the statutory remedy for the redressal of grievance against Ext.P8. Without prejudice to the right of the petitioner in the former writ petition to challenge the same in accordance with law, before the appropriate WP(C).No.728 & 8720 of 2014 15 forum, the former writ petition is dismissed. It is made clear that this Court has not made any observation as to the merits of the rival submissions. Taking into account the fact that the petitioner has been pursuing this matter before this Court and this Court is relegating the petitioner to avail the statutory remedy after answering certain legal issues as above it is ordered that in case the petitioner files any appeal against Ext.P8 within three weeks from the date of receipt of copy of this judgment the Tribunal for Local Self Government Institutions shall treat it as a competent appeal and shall proceed with its consideration in accordance with law.
8. Now, I will advert to the latter writ petition. Evidently, as noticed hereinbefore, the grievance of the petitioner is against Ext.P2. Ext.P2 was submitted by the second respondent in the former writ petition whereby the petitioner was informed that his application for change of occupancy of the building in question could not be considered owing to the pendency of the former writ petition. In view of the judgment in the former writ petition there cannot be any further impediment for considering the application for change of occupancy submitted by the petitioner in the latter writ petition. In the said circumstances, there will be a direction to the Secretary of the second WP(C).No.728 & 8720 of 2014 16 respondent to consider the application submitted by the petitioner for changing the occupancy of the aforesaid building in accordance with law, expeditiously, at any rate, within a period of one month from the date of receipt of copy of this judgment. It is made clear that this Court has not made any observation with respect to the entitlement of the petitioner for the same. The latter writ petition is disposed of, accordingly.
Sd/-
C.T.RAVIKUMAR Judge TKS