A.J. Varghese v. State of Kerala & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 18TH DAY OF FEBRUARY 2020 / 29TH MAGHA, 1941** **WA.No.9 OF 2020** **AGAINST THE JUDGMENT DATED 04.10.2019 IN** **WP(C) 42153/2018(T) OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **A.J.VARGHESE,AGED 46 YEARS,S/O.JOSEPH, RESIDING AT ADAVICHIRA HOUSE,PAYIPPAD, CHANGANASSERY TALUK,KOTTAYAM DISTRICT.** **BY ADVS. SRI.P.HARIDAS SRI.CHERIAN GEE VARGHESE SRI.BIJU HARIHARAN SRI.R.B.BALACHANDRAN SRI.RENJI GEORGE CHERIAN SRI.P.C.SHIJIN** ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA,REPRESENTED BY ITS SECRETARY, DEPARTMENT OF EXCISE,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE DISTRICT COLLECTOR, PATHANAMTHITTA, PIN-689 645.** - **3 COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM, PIN-695 541.** - **4 ASST. EXCISE COMMISSIONER, PATHANAMTHITTA, PIN-689 645.** - **5 EXCISE CIRCLE INSPECTOR, MALLAPPALLY EXCISE RANGE, MALLAPPALLY,PATHANAMTHITTA-689 645.** - **6 DEPUTY COMMISSIONER OF EXCISE, PATHANAMTHITTA, PIN-689 645.** W.A.No.9/2020 2 - **7 KERALA STATE BEVERAGES CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR, THIRUVANANTHAPURAM, PIN-695 584.** - **8 MANAGER,WARE HOUSE,KERALA STATE BEVERAGES CORPORATION,VALANJAVATTOM,THIRUVALLA, PATHANAMTHITTA, PIN-689 104.** - **9 MANAGER,KERALA STATE BEVERAGES CORPORATION, MALLAPALLY, PATHANAMTHITTA , PIN-689 586.** - **10 MALLAPPALLY GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, MALLAPPALLY,PATHANAMTHITTA, PIN-689 586.** - **11 THE SECRETARY,MUSLIM JAMAATH, ANIKKAD ROAD,MALLAPPALLY,PIN-689 585.** - **R10 BY ADV. SRI.K.S.HARIHARAPUTHRAN R10 BY ADV. SMT.BHANU THILAK** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 18.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.No.9/2020 3 **“C.R.”** ## **JUDGMENT** ## **Ravikumar, J.** The petitioner in WP(C) No.42153/2018 filed this appeal against the judgment dated 04.10.2019 passed thereon. The petitioner is the owner of a shopping complex situated within the limits of Mallappally Grama Panchayath, the tenth respondent. It is a three-storied building abutting Mallappally - Anikkad road. Respondents 7 to 9 approached him seeking some space in the cellar portion of the said building on lease for conducting a foreign liquor outlet. The case of the petitioner is that as required by respondent 7 and 8, he modified the cellar portion of the building. The pleadings in the writ petition as also in this appeal would reveal that the 8[th] respondent, then applied for FL-1 licence to conduct foreign liquor outlet in the aforementioned portion of the building W.A.No.9/2020 4 belonging to the appellant. According to the appellant the said application was rejected owing to its proximity with a Mosque situated in the area. This is evident from Ext.P3, which is a letter dated 30.09.2018 issued by the Manager,(Warehouse), Kerala State Beverages Corporation, Thiruvalla, the 8[th] respondent herein to the wife of the appellant. It is pertinent to note that the order of rejection of the application submitted by the 8[th] respondent is not produced in the writ petition as also in this appeal. The petitioner filed the writ petition seeking the following reliefs:- _“(a) Issue a writ in the nature of Mandamus or any other appropriate writ, order or direction commanding the respondents 3 to 6 not to treat the building No.3/583 as a mosque for the purpose of Rule 2(l) of Kerala Abkari Shops Disposal Rules, 2002 and to hold that petitioner's building covered by Ext.P1 is not within an objectionable distance of any mosque, church or temple and may issue no objection certificate and licence to respondents 7 to 9 for conducting FL(1) shop._ _(b) Issue a writ of mandamus or any_ W.A.No.9/2020 5 _other appropriate writ order or direction directing the respondents 7 to 9 to take the petitioner's shop room covered by Ext.P1 on lease for conducting FL(1) shop and to submit an application for licence before the respondents 3 to 6 for the same and may direct the respondents 3 to 6 to consider such application for licence by not treating building No.3/583 as a mosque.”_ Separate counter affidavits were filed by the 5[th] and 10[th] respondents resisting grant of reliefs to the appellant. The learned single Judge considered the contentions and ultimately dismissed the writ petition. It is feeling aggrieved by the dismissal of the writ petition that this appeal has been filed. 2. We have heard the learned counsel appearing for the appellant and the learned Government Pleader. 3. Various contentions have been raised by the appellant to mount challenge against the judgment passed in the writ petition. Obviously, the writ court held that the appellant is not aggrieved by any action as he was not the applicant for grant of licence to vend foreign liquor through the W.A.No.9/2020 6 said shop. It is true that the appellant is willing to let a portion of cellar of his shopping complex to the Kerala State Beverages Corporation for rearing a FL-1 shop. Shortly stated the writ court held that the appellant herein/the writ petitioner got no locus standi to move this seeking the aforesaid reliefs. We will firstly consider the sustainability of the said finding with reference to the second prayer sought for in the writ petition. How can the appellant seeks for issuance of a writ of mandamus commanding respondents 7 to 9 to take his shop room covered by Ext.P1 on lease for conducting FL-1 shop and to submit an application for licence before the respondents 3 to 6 for the same and in turn, to direct respondents 3 to 6 to consider such application for licence from respondents by not treating building No. 3/583 Mallappally Grama Panchayat as a Mosque. In this context, firstly, we will consider the sine qua non to issue a writ of mandamus. The prerogative writ of mandamus can be issued W.A.No.9/2020 7 only when a legal duty is imposed on the authority in question and the petitioner has a legal right to compel the performance of that duty. In other words, the existence of a legal right in the petitioner and a corresponding legal duty on the respondents are conditions precedent for issuing a writ of mandamus. It is also relevant to note that the performance of the duty cast upon the authority should be imperative and not discretional. When that be the _sin a quo non_ for issuing a writ of mandamus how can there be a direction to respondents 7 to 9, to take the appellant's shop room on lease for conducting FL 1 shop and then to submit an application for licence before the licencing authority under the Abkari Act. 4. We have absolutely no hesitation at all to hold that this Court cannot issue writ of mandamus of such a nature as sought for by the petitioner. The petitioner cannot be heard to say that respondents 7 to 9 got a legal duty to take the appellant's shop room on lease for conducting FL-1 shop as W.A.No.9/2020 8 stated and the appellant petitioner is also having a corresponding enforceable right in the matter. When that be the position, this Court also cannot compel the respondents to submit an application for licence for conducting FL1 shop in the said shop room belonging to the appellant. As relates last limb of prayer No.(b) it is admitted that the application for FL-1 licence to conduct foreign liquor outlet in the aforesaid shop room of the appellant. In the said circumstances, the appellant/petitioner is not at all entitled to relief No.(b). 5. We will now consider the question whether the appellant is entitled to relief No.1. Evident, the effort of the appellant is to prove that his building covered by Ext.P1 is not within an objectionable distance of any Mosque, Church or Temple and in that regard he wants respondents 3 to 6 not to treat building No.3/583 of Mallappally Grama Panchayath as a mosque for the purpose of Rule 2(1) of the Kerala Abkari Shops Disposal Rule, 2002. The other part of relief No.(a) W.A.No.9/2020 9 carries the prayer to direct respondents 3 to 6 to hold that the appellant's building covered by Ext.P1 is not within an objectionable distance of any mosque, church or temple and to issue a direction to respondents 3 to 6 to issue 'No Objection Certificate' and licence to respondents 7 to 9 for conducting FL 1 shop. 6. As found earlier, Ext.P3 produced by the appellant would reveal that the application submitted by respondents 7 to 9 for FL 1 licence to conduct foreign liquor outlet in the cellar portion of his building covered by Ext.P1 was rejected by the Excise authorities. Admittedly, the application for licence was submitted by the 8[th] respondent, the Manager, Warehouse, State Beverages Corporation, Valanjavattom and it be so, it is their application that was rejected. When their application was rejected by an order by the Excise authorities it is for the 8[th] respondent or someone duly authorised by the State Beverages Corporation to challenge the said order, if W.A.No.9/2020 10 they feel aggrieved by it. The fact is that they did not come up with any challenge against the order of rejection of the application for FL-1 licence, to conduct foreign liquor outlet in the said building. 7. Obviously, the learned Single Judge also took note of the said aspects in the impugned judgment. It is observed that the petitioner could not be said to be an aggrieved person against the said action as he was not the applicant for the liecence which was rejected. There cannot be any doubt with respect to the position that when once an application for FL 1 licence to conduct foreign liquor outlet in a particular building was rejected, without a successful challenge against the order of rejection, no mandamus could be issued to the Excise authorities to consider another application of the same applicant for licence to conduct foreign liquor outlet in the said shop room. How can the appellants seeks for issuance of licence to conduct foreign liquor outlet in shop room in W.A.No.9/2020 11 question? May be realising the fact that he is not an aggrieved party as relates the order of rejection of the said application that the appellant has not made any endeavour to challenge the said order directly. But, the fact is that the appellant is attempting to achieve the goal indirectly, which is impermissible in law. 8. As noticed earlier, the first limb of prayer No.(a) whereunder seeks issuance of a mandamus commanding respondents 3 to 6 not to treat his building bearing No.3/583 of Mallappally Grama Panchayath, covered by Ext.P1, as a Mosque for the purpose of Rule 2(l) of the Kerala Abkari Shops Disposal Rules, 2002 ('the Rules for short). In this context, it is relevant to refer to paragraph 2 of the writ petition which is virtually reiterated in the appeal as paragraph 3. The one and the only difference is that in appeal the word 'petitioner' has been substituted by the appellant. It reads thus: W.A.No.9/2020 12 “It is submitted that as required by the respondents 7 & 8, the appellant modified the cellar portion of the building by shifting the entrance to the shop room on the eastern side of the building, away from the road. The modification as proposed by respondents 7 and 9 was on the apprehension that building No.3/583 may qualify as a place of worship (Mosque). Hence in order to main statutory distance the entrance has to be shifted to the eastern side. The appellant insisted that Building No.3/583 is not a place of worship or Mosque since the building permit was not obtained for the construction of a Mosque and no permission from the 2[nd] respondent/District Collector as contemplated under the proviso to Rule 7(8) of the Panchayath Building Rules, 2011 (umamended) or 8A of the Panchayath Building Rules, 2011. The appellant also pointed out that the said building is not having building permit or occupancy certificate for a mosque or even an assembly occupancy certificate and it has not been constructed accordingly and therefore it will not qualify as a place of worship/Mosque. It is only a private building and is not coming within the purview of Sec.2(1) of Kerala Abkari Shop Disposal Rules, 2002. However the appellant effected modification of the building as required by respondents 4 to 9 also by making separate enclosures for queue. For the modification appellant incurred Rs.12,00,000/-. Effective distance from building No.3/358 to the W.A.No.9/2020 13 entrance of the proposed foreign liquor outlet became 215 meters.” A perusal of the afore extracted paragraph itself would reveal that respondents 7 to 9 were fully aware of the fact that the building in question belonging to the appellant situates within the prohibited distance of the building bearing No. 3/583 of Mallappally Panchayat which is a Mosque. Even according to the appellant, as required by them, he modified the cellar portion of the building in question by shifting the entrance to the shop on the eastern side of the building, away from the road. Evidently, he has also stated therein the modification was proposed by them on the apprehension that building bearing No. 3/583 may qualify as a place of worship (Mosque). This would clearly reveal the unsuccessful attempt on the part of the appellant to bypass the statutory provision under Rule 7(8) of the Rules. The said building has been there for 6 years, according to the respondent No.10 viz., the Mallappally Grama Panchayath. Though the appellant has also raised a W.A.No.9/2020 14 contention that no permission from the District Collector, the 2[nd] respondent was obtained under the proviso to Rule 7(8) of the Panchayat Building Rules, 2011 (unamended) or under Rule 8A of Panchcyath Rules, 2011, the fact is that he got absolutely no case that he had approached the 2[nd] respondent or the 10[th] respondent raising any grievance against the construction of the same by the 10[th] respondent. That apart, he is seeking relief only against respondents 3 to 6, who are Excise Officials that too, only for issuance of a writ of mandamus commanding them not to treat the said building as a Mosque for the purpose of Rule 2(l) of Kerala Abkari Shops Disposal Rules, 2002. In this context, it is relevant to note that stand of the 8[th] and 10[th] respondents that the said building is a Mosque. The 5[th] respondent stated that the statement dated 25.07.2019 that building bearing No.3/583 is a Mosque and the distance when measured from the gate of shop in question belonging to the appellant and gate of the Mosque, as per W.A.No.9/2020 15 Rule 7(2) of the Rules, is less than 200 metres. In the counter affidavit filed by the 10[th] respondent Mallappally Grama Panchayat the building bearing No.3/583 is a Mosque and the Muslim community living in the area are offering Niskaram and Jama prayers there. 9. The learned counsel for the appellant relied on the definition given for Mosque under Rule 2(l) of the Rules. It reads thus: “2(l) Mosque means a public place where prayer is offered by muslims: Provided that any structure on the road side, pavement or in a compound of a private building with or without a deity shall not be considered as a Mosque”. Nobody got a contention that it is a mere structure on the road side, pavement or in a compound of a private building. At the same time, it is to be noted that both the 8[th] and 10[th] respondents categorically stated that the aforesaid building bearing No.3.583 is a Mosque. W.A.No.9/2020 16 10. Thus, it can be seen that under Rule 2(1) of the Rules 'Mosque' is defined as 'a public place where prayer is offered by Muslims'. In that context, a decision of a Division Bench of this Court in which one among us was a party (CTR,J.), in _**Islamic Cultural and Educational Trust v. Kerala State Wakf Board and another** [2018 KHC 369]_ also assumes relevance. In the said decision, certain authorities were referred to such as the decision in _**Adam Sheik v. Isha Sheik** [(1897) 1 Cal WN 76]_ . A Division Bench of the Calcutta High Court in _**Adam Sheik**_ ( _supra_ ) held that a Mosque becomes consecrated for public worship either by delivery or on the declaration of the wakf that he has constituted it into a Musjid, or on the performance of prayers therein even by one person. The Bombay High Court in _**Maher Husein v. Alimahomed** [AIR 1934 Bom 257]_ held thus:- "There are special rules in the case of Mosques - Wilson's Anglo - Mahommedan Law S - 320; Ameer Ali's Muhammadan Law, Vol.I, p. 394' W.A.No.9/2020 17 and Tyabji's Principles of Muhammadan Law, S.514. When once a building has been set apart as a Mosque, it is enough to make it wakf if public prayers are once made there with the permission of the ” owner. Taking note of the authorities on the subject in the said decision, a Division Bench held that if a building is set apart as a Mosque and if permission is given to people to pray therein, if prayer was made only by a single person therein, it would become a Mosque which can be used by Muslims. In such circumstances, we are of the view that the contentions raised based on the provisions under the Panchayat Building Rules cannot be gone into for the simple reason that the provision under the "Rules" to be precise Rule 2(l) defines Mosque only as a public place where prayer is offered by Muslims and when a building satisfies the said definition for the purpose of 'the Rules' it has to be treated as mosque. Though we have adverted to the aforesaid provision and discussed the matter W.A.No.9/2020 18 as stated hereinbefore, we deem it fit to state that we find no reason to disagree with the finding of the learned Single Judge that whatever be the grievance of the petitioner, any grievance regarding the rejection of application of FL-1 licence could have taken up only by respondents 7 to 9 and it is not a matter that could be taken up by the petitioner for the simple reason that he was not the applicant. In other words, there is no public duty to be discharged by respondents 6 to 9 qua the appellant, in the circumstances obtained in this case and hence, the learned single Judge is right in declining the reliefs. The principle regarding locus standi has been stated by the Supreme Court in the decision in **S.P. Gupta v. President** reported in AIR 1982 SC 149. The Apex Court held thus:- “The traditional rule in regard to locus standi is that judicial redress is available only to a person who has suffered a legal injury by reason of violation of his legal right or legally protected interest by the impugned action of the state or a public authority or any other person or who is likely to suffer a legal injury by reason W.A.No.9/2020 19 of threatened violation of his legal right or legally protected interest by any such action. The basis of entitlement to judicial redress is personal injury to property, body, mind or reputation arising from violation, actual or threatened, of the legal right or legally protected interest of the person seeking such redress.” In **Khodey Distilleries Ltd. v. State of Karnataka** reported in AIR 1996 SC 911 the Hon'ble Apex Court has held that the right to practice any profession or to carry any occupation, trade or business does not extend to practicing a profession or carrying on an occupation, trade or business which is inherently vicious and pernicious and is condemned by all civilised societies. A citizen has, therefore, no fundamental right to do trade or business in potable liquor since liquor as beverage is res extra commercium, it was held. Furthermore, it was held:- “The State may also create a monopoly in itself for trade or business in liquor. The State can further place restrictions and limitations on such trade or business which may be in nature different from those trade or business”. W.A.No.9/2020 20 In the light of the aforesaid decisions the appellant cannot claim any legal or fundamental right or legally protected interest in the matter and he cannot be heard to say that declining FL-1 licence to respondents 7 to 9 will amount to diminution of value and utility of his building or that the said action would amount to restriction regarding its use affecting his substantive right. **In Prasar Bharati Broadcasting Corpn. of India v. Debyajoti Bose** [AIR 2000 Cal.43] the High Court of Calcutta held a petitioner should have 'legal standing' to title a writ petition. To put it shortly, the petitioner got no 'legal standing' to file a writ petition when the very foundation is the refusal to grant FL-1 licence to respondents 7 to 9 to conduct foreign liquor outlet. The fact that it was intended to be conducted in the building of the appellant will not confer a legal standing to file this writ petition. He was not subjected to any legal wrong or he did not suffer any legal grievance. W.A.No.9/2020 21 In such circumstances, this appeal must fail and consequently, it is dismissed. Sd/- **C.T. RAVIKUMAR JUDGE** Sd/- **N. NAGARESH JUDGE** **aks/ncd**