A.G. Unnikrishnan v. Commissioner of Excise

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN FRIDAY, THE 20TH DAY OF DECEMBER 2013/29TH AGRAHAYANA, 1935 WA.No. 1234 of 2013 () IN WP(C).12694/2013 -------------------------------------------AGAINST THE ORDER DATED 26.6.13 IN WP(C) 12694/2013 of HIGH COURT OF KERALA APPELLANT(S)/PETITIONER: ------------------------ A.G.UNNIKRISHNAN S/O.A.S.GOPALAN ACHARI, ATHIKUZHIYIL HOUSE MEEMPARA P.O, PUTHENCRUZ, ERNAKULAM 682 308. BY ADVS.SRI.SHEJI P.ABRAHAM SRI.O.K.MURALEEDHARAN RESPONDENT(S)/RESPONDENTS: ---------------------------- 1. THE COMMISSIONER OF EXCISE COMMISSIONERATE OF EXCISE THIRUVANANTHAPURAM 695 001. 2. DEPUTY EXCISE COMMISSIONER ERNAKULAM. 682 018. 3. EXCISE CIRCLE INSPECTOR PERUMBAVOOR. 683 540. 4. EXCISE INSPECTOR MAMALA RANGE THIRUVANKULAM.682 312. 5. POOTHRIKKA GRAMA PANCHAYAT POOTHRIKKA P.O ERNAKULAM DISTRICT 682 308 REP.BY ITS SECRETARY. 6. SASI ULIKUDIYIL PROPRIETOR, TS NO.36, MEEMPARA P.O PUTHENCRUZ, ERNAKULAM 682 308. R1 TO R4 BY GOVT. PLEADER SMT.REMA R5 BY ADV. SRI.SAJEEV KUMAR K.GOPAL R6 BY ADV. SRI.SAJI KURIACHAN BY ADV. SRI.M.R.NANDAKUMAR BY ADV. ADV.SRI.P.K.SURESH KUMAR(SR) THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 3.12.2013, THE COURT ON 20-12-2013 DELIVERED THE FOLLOWING: ## **ANTONY DOMINIC & P.D.RAJAN, JJ.** ------------------------------------------- W.A.No.1234 of 2013 ------------------------------------------Dated this the 20[th] day of December, 2013 ## **JUDGMENT** ## Antony Dominic, J. - 1.The correctness of the finding of the learned Single Judge that T.S.No.36 in Ward No.14 of Poothrikka Grama Panchayat, of the 6[th] respondent is entitled to the benefit of section 232(5) of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as the KPR Act, for short) is the only issue raised in this appeal. - 2.Section 232 of the KPR Act as amended by Ordinance 62 of 2012 reads thus: “ **232** . **Purpose for which places may not be used without a licence** - (1) The Village Panchayat may notify that no place in the Panchayat area shall be used for any of the purposes specified in the rules made in this behalf being purposes which in the opinion of Government, are likely to be offensive or dangerous to human life or health or property, without a licence issued by the Secretary and except in accordance with the conditions specified in such licence: WA.1234/13 2 Provided that no such notification shall take effect until the expiry of thirty days from the date of its publication. (2) Notwithstanding anything contained in the Abkari Act, 1077 (1 of 1077) or in any other law for the time being in force, no person shall, without previous permission in writing of a Village Panchayat and except in accordance with the conditions specified in the permission, locate an Abkari shop within a Village Panchayat area: (3) While granting permission to locate an Abkari shop near educational institution or place of worship, the distance limit prescribed in the Abkari Act for the time being in force or the rules framed thereunder shall be complied with and the Village Panchayat shall not give permission to locate an Abkari shop within the said distance limit. (4) A Village Panchayat shall be competent, in the interest of public peace or morality or on the grounds of expediency or nuisance, to order the transfer of an Abkari shop from one place to another or to close the shop, within a period not exceeding fifteen days, as may be directed in this behalf. (5) Notwithstanding anything contained in this section, the provisions of sub-sections (2) to (4) shall not be applicable to any Abkari shop existing on the date of commencement of the Kerala Panchayat Raj WA.1234/13 3 (Fourth Amendment) Ordinance, 2012 (63 of 2012) or, subject to all legal provisions, for locating the toddy shops existing on the said date, in the area within the boundaries allotted for locating them. **Explanation** :- “Abkari shop” means a toddy shop or a Foreign liquor shop or Foreign liquor retail shops or FL-9 establishments or a bar hotel, under the Abkari Act, 1077 and the rules made thereunder”. For clarity, section 232(5) as available in the Ordinance that was published in Malayalam is also extracted below: “(5)å¨ ÕµáMßW ®LáÄæK ¥¿BßÏßøáKÞÜᢠ(2) ÎáÄW (4) ÕæøÏáU ©ÉÕµáMáµ{ßæÜ ÕcÕØíŵZ 2012_æÜ çµø{ ÉFÞÏJí øÞ¼í (ÈÞÜÞ¢ çÍÆ·Äß) ³VÁßÈXØí (2012_ æÜ 63) dÉÞÌÜcJßW ÕK ÄàÏÄßÏßW ÈßÜÕßÜáU ÏÞæÄÞøá ¥ÌíµÞøß×ÞMßçÈÞ, ÈßÜÕßÜáU ®ÜïÞ ÈßÏÎÕcÕØíŵZAᢠÕßçÇÏÎÞÏß dÉØñáÄ ÄàÏÄßµ{ßW ÈßÜÕßÜáU µUí ×ÞMáµZ ¥Õ ØíÅÞÉßAáÕÞÈÞÏß ¥ÈáÕÆߺîßGáU ¥ÄßøáµZAáUßÜáU dÉçÆÖJí ÎÞxßåØíÅÞÉßAáKÄßçÈÞ ÌÞǵÎÜï.” ## 3.Reading of section 232(5) of the KPR Act would show that this section has two parts. They are: WA.1234/13 4 - (1) that section 232 (2) to (4) will not apply to toddy shops in existence as on 25.11.2012, when the ordinance came into force. - (2)that subject to all legal provisions, section 232 (2) to (4) will not apply to relocating toddy shops existing as on the date of the ordinance, in the area within the boundaries allotted for locating such shops. Thus the prescriptions of sub-sections (2) to (4) are inapplicable to shops in existence as on 25.11.2012, for its continuance at the existing location and also for relocating such shops within the allotted boundaries, provided all legal provisions are satisfied. - 4.In so far as the toddy shop in question is concerned, admittedly, it was in existence as on 25.11.2012, when the Ordinance came into force. But on the basis of Ext.R6(a) WA.1234/13 5 order, the toddy shop was shifted to building Nos.213, 214 and 215 with effect from 19.5.2013. Therefore, since the toddy shop was shifted to the new premises, the first part of section 232(5) is not attracted to this case. As far as the latter part of sub section (5) is concerned, it overrides only sub sections (2) to (4) and will apply only “subject to all legal provisions”. Therefore, since “Abkari shops - Storing and selling” is included at serial No.139 in Schedule I to Kerala Panchayat Raj (Issue of licence to Dangerous and Offensive Trades and Factories) Rules, 1996, the question is whether licence as provided in section 232(1) is required to be obtained. - 5.To answer the issue, we have to look at the wording of section 232(1) of the Act. The language of this provision makes it clear that to attract this section, the Village Panchayat should notify the purposes for which licence as provided in the section is required to be obtained. This position has also been clarified by a Division Bench of this Court in **Essar Telecom** WA.1234/13 6 **Infrastructure (P) Ltd** v. **State of Kerala** [2011(2) KLT 516] at paragraph 41 thus: “Government have framed the Kerala Panchayat Raj (Licensing of Dangerous Trade) Rules, 1996. As per S.232, it is for the local body to notify that a particular activity is offensive or dangerous to human health or property and in such a case, without licence from the Executive Authority, no person can use any area for such purposes as are notified, without licence.” 6. The 5[th] respondent panchayat does not have a case that any notification was issued by it under section 232 of the KPR Act. Instead, it is contesting the matter by stating thus in the counter affidavit filed in this appeal: “2) When the Writ Appeal came for hearing on 28.11.2013, this Hon'ble Court directed me to file an affidavit as to whether the Panchayat has issued notification as provided under Rule 4 of the Kerala Panchayat Raj (Issue of License to Dangerous and Offensive Trade and Factories) Rules, 1996. In this regard, it is respectfully submitted that no such notification was seen issued by the Panchayat on WA.1234/13 7 perusal of the relevant records. However, the 1963 rules namely, Licensing of Dangerous and Offensive Trades and Factories Rules, 1963 was duly notified by formulating bylaws and with necessary approval and hence it is not necessary to issue any separate notification and even as per the rules it is not mandatory to issue such notification to ensure that licenses are duly obtained for the purposes specified in Schedule 1 of the Rules. 3) By virtue of the amended provisions of the Kerala Panchayat Raj Act, before locating the toddy shop in the present premises permission ought to have obtained from the Panchayat and before commencing the same license ought to have been taken. Here the 6th respondent has not obtained any permission before locating the toddy shop and no license was also taken. For the previous year the Panchayat issued notice to all the licensees of toddy shop to take license including the 6th respondent. However, no license was taken. It is also submitted that objections from the local people was received against the functioning of the toddy shop and this was considered by the Panchayat and decided to reconsider when application for permit or licenses are submitted by the 6th respondent. Four bar functioning within the jurisdiction of the Panchayat has already taken licenses. None of the toddy shops have obtained licenses, even though notices were issued.” WA.1234/13 8 7.In view of the contention of the Panchayat, the question is whether the notification issued by it implementing the Rules framed under the 1960 Act would support the contention of the Panchayat the D&O Rules, 1996 framed under the KPR Act 1994, would remain in force even in the absence of a notification issued under section 232 of the KPR Act. In this context, though the counsel for the panchayat and also the counsel for the appellant relied on the provisions of the General Clauses Act, we are of the view that this issue must be answered in the light of section 284(2)(i) of the KPR Act and this provision reads thus: ## **284.Repeal and Savings** - (1) In this Section . . . . . . . . . . . . . . . . . . . . . . . . (2) with effect on, . . . . . . . . . . . . . . . . . . . . . . . . . . (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . “(i) any appointed notification, notice, tax, fee, order, scheme, licence, permission, rule, bye-law, regulation or form made, issued, imposed or granted in respect of the Panchayat area of existing Panchayat under the Kerala Panchayats Act, 1960 and in force immediately before the appointed day shall, in so far as it is not inconsistent with the provisions of this Act continue to WA.1234/13 9 be in force as if made, issued, imposed or granted in respect of the corresponding Panchayat area of a successor panchayat under this Act until superseded or modified by any appointment, notification, notice, tax, fee, order, scheme, licence, permission, rule, byelaw, regulation or form made, issued, imposed, or granted under this Act.” 8.As per this section, a notification issued under the 1960 Act would remain in force only until it is superseded or modified under the KPR Act. Therefore the 1963 notification issued could not have survived after the D&O rules 1996 were notified by S.R.O.76/1996 published as Notn.No.8973/N1/ 2003/LSGD dated 28.3.3003, published in Kerala Gazette Ex.No.660 dated 23.4.2003. If that be so, the Panchayat should have issued a notification under section 232 of the KPR Act and in the absence of such a notification, it cannot insist that the 6[th] respondent should have obtained licence thereunder. If that view is accepted, necessarily, the conclusion of the learned single Judge is perfectly legal and should be sustained. WA.1234/13 10 In the result, this writ appeal lacks merit and is accordingly dismissed, without any order as to costs. Sd/- ANTONY DOMINIC, Judge. Sd/- P.D.RAJAN, Judge. kkb. /True Copy/ PS to Judge