BINOY B.R v. STATE OF KERALA & ORS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **FRIDAY, THE 09TH DAY OF OCTOBER 2020 / 17TH ASWINA, 1942** ## **WA.No.1275 OF 2020** **AGAINST THE JUDGMENT IN WP(C) 18551/2020(T) OF HIGH COURT OF KERALA** ## **APPELLANT/RESPONDENT NO.6:** **BINOY B.R, AGED 45 YEARS S/O.RANADEEPAN, LICENSEE, TODDY SHOP NO.65, THIRUVIZHA, CHERTHALA SOUTH P.O., ALAPPUZHA DISTRICT-688539.** **BY ADVS. SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW** ## **RESPONDENTS/PETITIONERS 1 TO 5 & RESPONDENTS 1 TO 5:** - **1 SOUMYA V.S, W/O. SHANKAR V.V., KUTTAMVEETIL, THIRUVIZHA, CHERTHALA SOUTH (PART), ALAPUZHA-688539.** - **2 PUSPALATHA,W/O.KAMALASANAN, KONATTUCHIRAYIL, THIRUVIZHA, CHERTHALA SOUTH (PART), ALAPUZHA-688539.** - **3 AMBILY,W/O.PRASANNAN, THEKKEVELI, THIRUVIZHA, CHERTHALA SOUTH P.O, ALAPUZHA-688539.** - **4 AMMINI,C/O. ANANDAN, THEKKEVELIYIL, THIRUVIZHA, CHERTHALA SOUTH P.O, ALAPUZHA-688539.** W.A.No.1275 of 2020 2 - **5 SHEELA P.,W/O.DIVAKARAN, KANDATHIPARAMBIL, THIRUVIZHA, CHERTHALA SOUTH P.O, ALAPUZHA688539.** - **6 STATE OF KERALA,REPRESENTED BY THE SECRETARY, DEPARTMENT OF EXCISE, GOVT.SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **7 THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, NANDAVANAM, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695033.** - **8 THE DEPUTY COMMISSIONER OF EXCISE, EXCISE DIVISION OFFICE, EXCISE COMPLEX, IRON BRIDGE P.O., ALAPUZHA-688011.** - **9 THE EXCISE CIRCLE INSPECTOR, EXCISE CIRCLE OFFICE CHERTHALA, NEAR KALIKULAM WATER TANK, VARANAD P.O., ALAPUZHA DISTRICT, PIN-688539.** - **10 THE DISTRICT COLLECTOR, ALAPPUZHA DISTRICT, COLLECTORATE, CIVIL STATION, ALAPPUZHA-688001.** - **R1 TO R5 BY ADV.SRI.PREM KAMATH R6 TO R10 BY SR.G.P.SMT.K.R.DEEPA** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.No.1275 of 2020 3 ## **JUDGMENT** ## **Ravikumar, J.** This intra-court appeal is filed against the judgment in W.P. (C)No.18551 of 2020 dated 9.9.2020. The 6[th] respondent therein is the appellant. On going through the impugned judgment, with reference to the pleadings in the appeal, it is evident that the main grievance of the appellant is that in respect of the issue that may ultimately affect him adversely and cause prejudice to his rights, the matter was decided without issuing him notice. According to the appellant, this was done despite the fact that he is arrayed as 6[th] respondent in the writ petition. The impugned judgment would reveal that it was disposed of at the admission stage itself, evidently, without issuing notice to the 6[th] respondent. In such circumstances, there will be some substance in the contention raised by the appellant if any issue which may ultimately affect him adversely or cause prejudice to his rights, was decided as per the impugned judgment. We are of the view that taking into account the nature of the directions issued in the judgment in question will be whether compliance with the directions in the judgment, as it is, would cause any prejudice to the appellant and if so, whether it would be remedied even without setting aside the judgment. W.A.No.1275 of 2020 4 2. Heard the learned counsel appearing for the appellant, the learned counsel appearing for respondent Nos.1 to 5 as also the learned Government Pleader. 3. Respondents 1 to 5/writ petitioners are homemakers and residents of Thiruvizha Village at Cherthala. Their grievance was that the 3[rd] respondent therein viz., 8[th] respondent herein issued licence to the 6[th] respondent/appellant herein to vend toddy through a shop in the near vicinity of their residential homes. They asserted that they have the right to live with dignity in the company with their family members without being any intrusion into their privacy, by placing reliance on a judgment of this Court in **Vilasini** v. **State of Kerala (2020 (2) KHC 612)** . The said judgment is produced in the writ petition as Ext.P5. In the light of the decision in **Vilasini's** case respondents 1 to 5 /writ petitioners filed Ext.P3 representation before the 2[nd] respondent therein seeking urgent action to shift the toddy shop from the present location. When the matter was taken up by the learned Single Judge the learned counsel appearing for the writ petitioners/respondents 1 to 5 herein confined the submissions only to one aspect. It is submitted that a direction to the 2[nd] respondent to consider Ext.P3 representation on merits will be suffice. In the said circumstances, it is observed thus in the judgment:- W.A.No.1275 of 2020 5 “I have heard Sri Prem Kamath, the learned counsel appearing for the petitioners and the learned Government Pleader. In view of the nature of the order that I propose to pass, notice to the party respondents is dispensed with.” It is after making such an observation that the writ petition was disposed of with direction to the 2[nd] respondent to take up Ext.P3 representation pending before that authority and to take a decision in the light of the observations and directions issued by this Court in **Vilasini's** case (supra). In that regard a time limit was fixed. It is relevant to note that as per the judgment it was only ordered that such disposal shall be made after affording an opportunity of being heard to the petitioners or their authorised representatives. 4. The learned counsel for the appellant would contend that absence of any direction to hear him as well, when Ext.P3 representation is taken up for consideration, is likely to cause grave prejudice to the 6[th] respondent therein/the appellant herein. The pleadings in the writ petition itself would reveal that the appellant is not running the toddy shop bearing No.65 without legal authorisation. He has been granted the requisite licence therefor. Being the licencee he is certainly entitled to effect sale of toddy through his shop till a lawful order is passed either restraining him from conducting the business or shift the location of the shop from the present location. We have W.A.No.1275 of 2020 6 already taken note of the fact that in Ext.P3 representation based on the decision in **Vilasini's** case (supra) the prayer is to shift the shop of the appellant from the present location. In such circumstances, we have no hesitation to hold that prejudice will cause to the appellant if, while taking up a decision on Ext.P3 representation he is not afforded with an opportunity of being heard. The learned counsel appearing for respondents 1 to 5/writ petitioners submitted that to comply with the directions in the impugned judgment notices have been issued to the writ petitioners requiring them to appear for hearing on 14.10.2020. The learned counsel appearing for the appellant submitted that till date no notice was issued to the appellant though the issue to be considered is whether the shop being run by the appellant should be shifted or not. 5. Another aspect was also brought to our notice by the learned counsel for the appellant. It is submitted that Ext.P3 itself would reveal that it is dated 7.9.2020. Ext.P4 is the postal receipt dated 7.9.2020. It would undoubtedly reveal that Ext.P3 representation was sent by post on 7.9.2020. This assumes relevance in the context that the writ petition was moved by the writ petitioners on 8.9.2020 and it came up for admission on 9.9.2020. No volume of argument is required to conclude that the writ petitioners/respondents 1 to 5 have rushed to this Court even without waiting till Ext.P3 W.A.No.1275 of 2020 7 representation reaches the authority to whom they addressed. After sending Ext.P3, the very next day they moved this Court and in the writ petition the appellant who is running the shop is made the 6[th] respondent. The very observation in paragraph 2 of the judgment extracted above would reveal that the learned Single Judge never intended to cause any kind of prejudice to the appellant lest it would not have observed “in view of the nature of the order I propose to pass notice to the party respondent is dispensed with". In such circumstances, to avert any situation likely to cause prejudice to the appellant, even though there is no specific direction in the judgment to afford an opportunity of being heard to the appellant/6[th] respondent therein, taking into account the nature of the issue involved in Ext.P3 we are of the firm view that the 2[nd] respondent therein/the 7[th] respondent herein should have issued notice to the appellant as well to comply with the principle of natural justice. Being a licencee of the shop in question no sustainable decision on Ext.P3 could be taken without affording the appellant an opportunity of being heard as any decision sans opportunity to him would be violative of the salutory principle of natural justice. Since no observation on merits was made by the learned Single Judge in the impugned judgment we are of the view that this appeal can be disposed of, safeguarding the interest of W.A.No.1275 of 2020 8 the appellant, on the following lines:- If the hearing is scheduled to be conducted on 14.10.2020 as submitted by the learned counsel for respondents 1 to 5 the same shall be rescheduled and it shall be conducted only on a day, now to be fixed, after issuing notice to both the writ petitioners/respondents 1 to 5 herein and the appellant. Decision on Ext.P3 shall be made within a period of two months from the date of receipt of a copy of this judgment. It is made clear that it will be open to the appellant/6[th] respondent and respondents 1 to 5 to take all legal and factual contentions. We also make it clear that we have not considered the correctness or otherwise of the decision in **Vilasini's** case (supra), in this appeal. The writ appeal is disposed of accordingly. Sd/- **C.T.RAVIKUMAR** **Judge** Sd/- **K.HARIPAL Judge** TKS