Kerala High Court
Sebi Mathew @ Mariayamma vs State Of Kerala on 14 July, 2016
Author: K.T.Sankaran
Bench: K.T.Sankaran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
&
THE HONOURABLE MR. JUSTICE A.M.BABU
MONDAY, THE 31ST DAY OF OCTOBER 2016/9TH KARTHIKA, 1938
WP(C).No. 28011 of 2016 (B)
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PETITIONER(S)/PETITIONERS:-:
---------------------------
1. SEBI MATHEW @ MARIAYAMMA
AGED 53 YEARS, W/O.MATHEW MATHAI,
NEENDUPARAMBIL HOUSE, MANNANAM KARA,
MANNANAM P.O., ATHIRAMPUZHA VILLAGE,
KOTTAYAM TALUK, KOTTAYAM DISTRICT,
PIN - 686 561.
2. E.P.SALIM,
AGED 65 YEARS, S/O.K.K.PRABHAKARAN,
EDAMANAPAT HOUSE, ETTUMANOOR P.O.,
ATHIRAMPUZHA VILLAGE, KOTTAYAM DISTRICT,
PIN - 686 631.
BY ADVS.SRI.C.S.MANU
SRI.S.K.PREMRAJ
RESPONDENT(S)/RESPONDENTS:-:
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1. STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT OF KERALA,
DEPARTMENT OF EXCISE, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695 001.
2. DEPUTY COMMISSIONER OF EXCISE,
KOTTAYAM, PIN - 686 001.
WP(C).No. 28011 of 2016
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3. CIRCLE INSPECTOR OF POLICE,
ETTUMANOOR, ETTUMANOOR P.O.,
KOTTAYAM DISTRICT, PIN - 686 631.
4. SUB INSPECTOR OF POLICE,
GANDHI NAGAR POLICE STATION,
KOTTAYAM, PIN - 686 008.
5. SUSY,
AGED 53 YEARS, PARIYATHU MALI,
KUMARANALLOOR P.O., KOTTAYAM DISTRICT,
PIN - 686 016.
6. AJITHA GOPALAN,
AGED 43 YEARS, KARUKAPPALLIL HOUSE,
KUMARANALLOOR P.O., KOTTAYAM DISTRICT,
PIN - 686 016.
7. KUNJAMMA,
AGED 50 YEARS, KUNNEPARAMBIL HOUSE,
KUMARANALLOOR P.O., KOTTAYAM DISTRICT,
PIN - 686 016.
8. KOTTAYAM MUNICIPALITY,
REPRESENTED BY THE SECRETARY,
KOTTAYAM P.O., KOTTAYAM - 686001
R5 -R 7 BY ADV. SRI.C.S.MANILAL
R5 -R 7 BY ADV. SRI.S.NIDHEESH
R1,R2,R3 & 4 BY ADV. SRI.K.V.SOHAN, STATE ATTORNEY
BY GOVERNMENT PLEADER SRI.P.P.THAJUDEEN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-
10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 28011 of 2016 (B)
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APPENDIX
EXHIBITS
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EXHIBIT P1. TRUE COPY OF THE LICENCE NO.203/14-15 ISSUED BY THE
2ND RESPONDENT IN FAVOUR OF THE PETITIONER.
EXHIBIT P1(a). TRUE ENGLISH TRANSLATION OF RELEVANT PAGE OF
LICENCE.
EXHIBIT P2. TRUE COPY OF THE ORDER NO.K5-1712/16 DATED 14.07.2016
ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P2(a). TRUE ENGLISH TRANSLATION OF EXT.P2.
EXHIBIT P3. TRUE COPY OF THE CONSENT DATED 01.07.2016 ISSUED BY
THE 1ST PETITIONER TO THE 2ND PETITIONER.
EXHIBIT P3(A). TRUE ENGLISH TRANSLATION OF EXT.P3.
EXHIBIT P4. TRUE COPY OF THE PROPERTY TAX RECEIPT NO.126345
DATED 13.07.2016 ISSUED BY KOTTAYAM MUNICIPALITY IN RESPECT OF
THE ABOVE BUILDING NO.51/634/A FOR THE PERIOD 2016-2017,
EXHIBIT P5. TRUE COPY OF THE POSSESSION CERTIFICATE NO.1052
DATED 28.05.2016 ISSUED BY THE VILLAGE OFFICER, PERUMBAIKKAD
VILLAGE TO THE 1ST PETITIONER.
EXHIBIT P6. TRUE COPY OF THE ORDER BEARING NO.KPW 1-4062/16 DATED
29.07.2016 ISSUED BY THE SECRETARY, KOTTAYAM MUNICIPALITY TO
THE 2ND PETITIONER.
EXHIBIT P6(a). TRUE ENGLISH TRANSLATION EXT.P6.
EXHIBIT P7. TRUE COPY OF THE DEED OF POWER OF ATTORNEY DATED
09.08.2016 GRANTED BY THE 1ST PETITIONER TO THE 2ND PETITIONER.
EXHIBIT P8. TRUE COPY OF THE PERMIT BEARING NO.BA-75/16-17 DATED
08.06.2016 ISSUED BY THE KOTTAYAM MUNICIPALITY TO THE 1ST
PETITIONER.
EXHIBIT P9. TRUE COPY OF THE BUILDING PLAN APPROVED BY THE
KOTTAYAM MUNICIPALITY AND ISSUED TO THE 1ST PETITIONER.
WP(C).No. 28011 of 2016 (B)
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EXHIBIT P10. TRUE COPY OF THE PETITION DATED 11.08.2016 SUBMITTED
BY THE 2ND PETITIONER TO THE 4TH RESPONDENT.
EXHIBIT P10(A).TRUE COPY OF THE RECEIPT DATED 11.08.2016 ISSUED BY
THE 4TH RESPONDENT TO THE 2ND PETITIONER.
EXHIBIT P11. TRUE COPY OF THE APPLICATION DATED 12.08.2016
SUBMITTED BY THE 1ST PETITIONER TO THE SECRETARY, KOTTAYAM
MUNICIPALITY.
EXHIBIT P12- TRUE COPY OF THE NOTICE DATED 29.7.2016 ISSUED BY
THE ADDITIONAL 8TH RESPONDENT TO THE 1ST PETITIONER
EXHIBIT P13- TRUE COPY OF THE JUDGMENT DATED 8.8.2016 PASSED
BY THIS HONOURABLE COURT IN WPC 24612 OF 2016
EXHIBIT P14- TRUE COPY OF THE ORDER BEARING
NO.EXC/3926/2016/XA7 DATED 22.10.2016 ISSUED BY THE COMMISSIONER OF
EXCISE, THIRUVANANTHAPURAM.
RESPONDENT(S)' EXHIBITS
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EXHIBIT R5(a)- TRUE COPY OF ROUGH SKETCH OF LOCATION TO
DEMONSTRATE THE PROHIBITORY DISTANCE RULE
EXHIBIT R5(b)- TRUE COPY OF THE RECEIPT OF THE COMPLAINT DATED
15.7.2016 ISSUED FROM EXCISE DIVISION OFFICE, KOTTAYAM
EXHIBIT R5(c)- TRUE COPY OF THE COMPLAINT FILED BY RESIDENTS
AND PARENTS OF THE CHILDREN TO THE SUB DIVISIONAL MAGISTRATE,
KOTTAYAM
EXHIBIT R5(d)- TRUE COPY OF THE RECEIPT FOR EXT.R5(c) COMPLAINT
EXHIBIT R5(e)- TRUE COPY OF THE PETITION SUBMITTED BY
KUDUMBASREE UNIT TO THE COMMISSIONER OF EXCISE
EXHIBIT R5(f)- TRUE COPY OF THE RECEIPTS
EXHIBIT R5(g)- TRUE COPY OF THE LETTER NO.ICDS/QLM ADC/620/16
DATED 30.7.16 ISSUED BY CHILD DEVELOPMENT PROJECT OFFICER OF ICDP
ADDRESSED TO THE DISTRICT SOCIAL JUSTICE OFFICER
WP(C).No. 28011 of 2016 (B)
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EXHIBIT R5(h)- TRUE COPY OF THE LETTER/PETITION ST.MARY'S
FORANCE CHURCH & KUDAMALOOR PILGRIM CENTRE
EXHIBIT R5(i)- TRUE COPY OF THE NOTICE ISSUED BY THE KOTTAYAM
MUNICIPALITY
EXHIBIT R5(j)- TRUE COPY OF THE ORDER DATED 20.7.2016 ISSUED BY
THE KOTTAYAM MUNICIPALITY
EXHIBIT R5(k)- TRUE COPY OF THE NEWS ITEM REPORTED IN INDIAN
EXPRESS DAILY DATED 16.7.2016
EXHIBIT R5(l)- TRUE COPY OF THE JUDGMENT DATED 2.9.2016 IN W.P.
(C).. 29362 OF 2016
//True copy//
P.S to Judge
K.T.SANKARAN & A.M.BABU, JJ
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W.P.(C).28011 of 2016
- - - - - - - - - - - - - - - -
Dated 31st October, 2016
- - - - - - - - - - - - - - - - - - - - - - - -
JUDGMENT
Sankaran, J
1.The 2nd petitioner is a co-licensee of toddy shop No.30 under Group V of Ettumanoor Excise Range. It is stated that his licence (Ext.P1) is valid upto 31.3.2017. The toddy shop was being run in a building bearing No.XI (new number V/188A) of Kottayam Municipality. The 2nd petitioner wanted to shift the toddy shop to building No.KMC 51/634A. He made request for the same before the 2nd respondent, the Deputy Commissioner of Excise, Kottayam. The Deputy Commissioner passed Ext.P2 permitting shifting of toddy shop. The 1st petitioner is the owner of the building in which the toddy shop is proposed to be shifted.
WP(C).28011/16 2
2.There is considerable dispute as to whether the toddy shop started functioning in the new site. It is not necessary to decide that question in this writ petition.
3.Kottayam Municipality issued Ext.P6 order dated 29.7.2016 provisionally cancelling the occupancy certificate issued in favour of the 1st petitioner. Ext.P6 order reads as follows:-
g5^GO" H7xXM_5aN^xH\obV
gN6\O_W KPW I-BA 75/15-16 Dtd.
13/07/2016edI5^x" %HaUF_:n_xaK
25cbfIXX_O_W H_Ka" Io^H_W H_Ka" XmE\ Ix_gV^GH XNOfJ %UXmEO_W H_Ka"
f5G_?J_Hm UcDc^X" UxaJ_O_GaUD^O_ Xb:H (2) (3) dI5^x" y_gM^VGm \M_:n_GaUDa"
&OD_fa %?_XmEHJ_W Xb:H (4) dI5^x" HW5_O_GaU 25cafIXX_ D^W5^\_5N^O_ yga f:Oq_GaUD^5aKa.e'dI5^x" 25cafIXX_ yga f:Oq_GaUD_H^W ?_ f5G_?J_Hm HW5_O_GaU (New 51/634 A) (Old 3/601 A) .K HOV KMA Act 406/(A_) dI5^x"
D^W5^\_5N^O_ yga f:Oqm 'D_H^W )JxU^5aKa.
WP(C).28011/16 3
4.It is stated that in the light of Ext.P6 order, the petitioners decided to make additional construction and alterations to the existing building in tune with the permit and plan approved by the Municipality. It is stated that the 1st petitioner authorized the 2nd petitioner to carry out the constructions and alterations to the building, as per Ext.P7 Power of Attorney.
5.It is stated that on 10.8.2016 respondents 5 to 7 and their henchmen obstructed the 2nd petitioner and his workers in making the constructions. Therefore, the 2nd petitioner could not carry out the construction work. Though a petition dated 11.8.2016 was filed before the 4th respondent (Sub Inspector of Police, Gandhi Nagar Police station, Kottayam), no police assistance was provided. The 8th respondent, Kottayam WP(C).28011/16 4 Municipality, issued Ext.P12 notice to the 1st petitioner temporarily cancelling the occupancy certificate dated 13.7.2016. It is also stated in Ext.P12 that as and when the application is made after completing the construction in accordance with the plan, the 1st petitioner could apply for restoration of the grant of occupancy certificate.
6.The relief which the petitioners pray for the time being is that they may not be obstructed by the party respondents from making the construction. The petitioners undertake that they will not shift the toddy shop to newly constructed/renovated building until this Court grants permission to do so. This submission is made on the basis of the pendency of W.P.(C).34672/2016 filed by respondents 5 to 7 challenging the order of the Excise Commissioner holding WP(C).28011/16 5 that the Anganwadi which is situated near the proposed site is not an educational institution.
7.The learned counsel for respondents 5 to 7 submitted that the proposed new site is within the prohibited distance and the Anganwadi and a Church are situated within the prohibited distance. Therefore, the petitioners are not entitled to run the toddy shop in the new site since it would be against Rule 7(2) of the Abkari Shops Disposal Rules, 2002. It is stated that respondents 5 to 7 filed an appeal before the Commissioner of Excise challenging Ext.P2 order passed by the Deputy Excise Commissioner granting permission to shift the toddy shop to the disputed site. The learned counsel for respondents 5 to 7 submitted that the Excise Commissioner rejected the WP(C).28011/16 6 contention of respondents 5 to 7 that Anganwadi is an educational institution. The learned counsel submitted that the Excise Commissioner did not properly consider the contention of respondents 5 to 7 and the Excise Commissioner dismissed the appeal filed by them. Challenging the order of the Commissioner, respondents 5 to 7 filed W.P.(C).34672/2016 and that writ petition is pending before this Court.
8.The learned counsel for the petitioners submitted that in W.P.(C).34672/2016, an order of status quo was passed by a learned single Judge of this Court. In view of the pendency of W.P.(C). 34672/2016 and in view of the interim order passed therein, the writ petitioners are not entitled to shift the toddy shop to the new site after reconstruction/renovation of the WP(C).28011/16 7 building. Respondents 5 to 7 have no right to obstruct construction of the building in the property belonging to the 1st petitioner. They can only contend that a toddy shop cannot be functioned and that question is pending consideration in W.P.(C).34672/2016.
9.In the facts and circumstances, we dispose of the writ petition as follows:-
(i). The writ petitioners are entitled to make construction in accordance with the approved plan at the new site.
Respondents 5 to 7 or their
henchmen are not entitled to
obstruct to that construction
activity. If respondents 5 to 7 or any of them cause obstruction, respondents 3 and 4 shall afford adequate and effective police protection in favour of the petitioners.
WP(C).28011/16 8
(ii). Even after reconstruction/renovation of the building, the petitioners are not entitled to shift the toddy shop to the new site or building except with the permission of this Court in W.P.(C).
34672/2016.
(iii). If the question involved in W.P.(C).34672/2016 is finally decided in favour of the petitioners, they will be entitled to run the toddy shop in the newly constructed/renovated building at the proposed site without any obstruction from respondents 5 to 7 and their henchmen.
(iv). Kottayam Municipality will be entitled to consider the question of restoring the occupancy in favour of the petitioners only after hearing the objections raised by respondents 5 to 7, since respondents 5 to 7 have allegedly WP(C).28011/16 9 challenged the legality and correctness of Ext.P8 building permit itself.
K.T.SANKARAN Judge A.M.BABU Judge Mrcs/1.11.2016