W.A. No.1720 of 2013 in W.P.(C) No.26574 of 2013

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.M.JOSEPH** **& THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **TUESDAY, THE 12TH DAY OF NOVEMBER 2013/21ST KARTHIKA, 1935** **WA.No. 1720 of 2013 () IN WP(C).26574/2013 --------------------------------------------** **AGAINST THE JUDGMENT IN WP(C) 26574/2013 of HIGH COURT OF KERALA DATED 04-11-2013** **APPELLANT(S) :-** - **-------------** **1. SABU T., AGED 40 YEARS, S/O.THANKAPPAN, VELIYIL HOUSE, KARIKKAD P.O., THANNERMUKKAM, ALAPPUZHA DISTRICT.** **2. SAJIMON, AGED 29 YEARS, S/O.VASUDEVAN, PADINJAREVELI HOUSE, KARIKKAD P.O., THANNERMUKKAM, ALAPPUZHA DISTRICT.** **BY ADVS.SRI.B.PRAMOD SMT.R.REJI (ATTINGAL).** ## **RESPONDENTS/PETITIONER AND RESPONDENTS:-** **---------------------------------------** **1. P.V.BABU, PADIKKAPARAMBU VELIYIL, VARANADU P.O., CHERTHALA - 688 564.** **2. THANNERMUKKAM GRAMA PANCHAYATH,** - **REPRESENTED BY ITS PRESIDENT, THANNEERMUKKAM GRAMA PANCHAYATH OFFICE,** - **CHERTHALA, ALAPPUZHA DISTRICT - 688 527.** **3. THE SECRETARY,** **THANNEERMUKKAM GRAMA PANCHAYATH, CHERTHALA, ALAPPUZHA DISTRICT - 688 527.** **R1 BY SRI.R.KRISHNA RAJ** **R2 & R3 BY ADV. SRI.JOBY CYRIAC.** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **amk** **WA.No. 1720 of 2013 () IN WP(C).26574/2013** ## **APPENDIX** ## **PETITIONER'S ANNEXURES :-** **ANNEXURE I : TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST APPELLANT IN W.P.(C) NO.16494/2013 OF THIS COURT.** **ANNEXURE II : TRUE COPY OF THE RESOLUTION NO.3 DATED 4-11-2013 OF THE 2ND RESPONDENT.** **RESPONDENT'S ANNEXURES : NIL** **//TRUE COPY//** **P.A TO JUDGE** **amk** ## **K.M.JOSEPH & A.HARIPRASAD, JJ.** ## **------------------------------------------------** ## **W.A No.1720 of 2013 in W.P.(C) No.26574 of 2013** **------------------------------------------------Dated this the 12[th] day of November, 2013.** ## **J U D G M E N T** ## **K.M.Joseph, J.** This is an appeal filed by the 3[rd] party. The writ petition was filed seeking the following relief :- - _“ a. direct 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 of Thanneermukkam Grama Panchayath as the respondent has deemed to have permitted the petitioner to conduct the toddy shop as per Section 236(3) of the Kerala Panchayath Raj Act by the issue of a writ of mandamus of such other writ or order or direction.”_ 2. Briefly put, the case of the writ petitioner is as follows :- The grievance of the petitioner is that the respondent Panchayath has not disposed of the application submitted by the petitioner under Section 232 of the Kerala Panchayath Raj Act (hereinafter called as the 'Act') and Kerala Panchayath Raj (Issue of **W.A No.1720 of 2013 in 2 W.P.(C) No.26574 of 2013** Lincence to Dangerous and Offensive Trades and Factories) Rules (herein after called as the 'Rules') for permission to conduct the toddy shop, which was functioning in a building for the last 5 years and shifted to a new building which is situated just opposite to the earlier building, even after the expiry of 54 days and is not permitting the petitioner to conduct the toddy shop in spite of the fact that as per Section 236(3) of the Act the Panchayath is deemed to have granted permission for conducting the toddy shop after the expiry of 30 days from the date of submission of the application. The petitioner filed an application before the Panchayath for permission to conduct a toddy shop on 04-09-2013 under the Act and Rules. The toddy shop of the petitioner was functioning in a building for the last 5 years and he has shifted the toddy shop to the building situated just opposite of the building in which the toddy shop was functioning for the last 5 years. The petitioner was forced to shift the building when the owner of the earlier building demanded huge amount for the renewal of the lease. When the petitioner shifted the toddy shop to the building just opposite to the **W.A No.1720 of 2013 in 3 W.P.(C) No.26574 of 2013** earlier shop some persons claiming to be the residents of the locality started agitating against the functioning of the Toddy shop in the new building claiming that the functioning of the toddy shop is without license and it is causing public nuisance. Actually they started the agitation at the instigation of the earlier land lord of the petitioner. When they started agitation the petitioner submitted an application before the Panchayath under the Act and Rules and also approached this Court and filed a writ petition as W.P.(C) No.16494/2013. Two persons who are leading the agitation have also filed a writ petition as W.P.(C) No.17149/2013, alleging that the toddy shop is functioning against the provision of the Act and Rules. This Court considered these writ petition together and pleased to dispose of the same by a common judgment dated 10-09-2013 directing the Panchayath to consider and dispose of the application submitted by the petitioner, for permission to conduct the toddy shop under the Act and Rules, on 04-09-2013. Based on this direction the petitioner has submitted the judgment of this Court with a fresh representation before the Panchayath on 13-09-2013. The **W.A No.1720 of 2013 in 4 W.P.(C) No.26574 of 2013** Panchayath has promptly conducting the hearing in which the petitioner as well as the agitating parties were heard. But in spite of the hearing conducted by the Panchayath, till date no order has been passed by the Panchayath in the application submitted by the petitioner for permission to conduct the toddy shop. 54 days have expired after the date of submission of the application by the petitioner on 04-09-2013. As per Section 236(3) of the Act if the Panchayath fails to pass orders in any application submitted for permission or license within 30 days of the receipt of the application by the Panchayath, the application shall be deemed to have been allowed. Based on this provision, the petitioner has now got permission of the Panchayath to conduct the toddy shop and the petitioner is entitled to conduct the Toddy shop without the interference of the Panchayath. When the petitioner started steps to reopen the toddy shop which was closed down due to the agitation as early as on 28-06-2013, the Panchayath has now orally directed the petitioner not to open the toddy shop. It is in such circumstance the petitioner is approaching this Court by filing this writ petition. **W.A No.1720 of 2013 in 5 W.P.(C) No.26574 of 2013** 3. The learned Single Judge allowed the writ petition and declared that the petitioner is entitled to the benefit of a deemed license under Section 236(3) of the Act for the purpose of conducting his toddy shop T.S No.28 of Cherthala Range for a period of one year from 4-10-2013. Needless to observe that the functioning of the toddy shop shall be subject to the terms and conditions that the Panchayath usually imposes while granting such licenses, it was ordered. 4. We heard the learned counsel for the appellant, the learned counsel for writ petitioner and the learned counsel for the respondents 2 and 3, namely the Panchayath and the Secretary. 5. Learned counsel for the appellant would complain that this is a case where this court had directed the Panchayath to take a decision with liberty to challenge the decision against the appellant. The said judgment was rendered on 10-09-2013. However, the Panchayath did not take a decision. He drew our attention to the judgment of the Apex Court in _**Badami v. Bhali (2012(3) K.L.T Suppl. 28 (S.C))**_ , wherein the court inter alia held as follows :- **W.A No.1720 of 2013 in 6 W.P.(C) No.26574 of 2013** _“ No court will allow itself to be used as an instrument of fraud and no court, by way of rule of evidence and procedure, can allow its eyes to be closed to the fact it is being used as an instrument of fraud. The basic principle is that a party who secures the judgment by taking recourse to fraud should not be enabled to enjoy the fruits thereof.”_ According to him fraud is practiced by the writ petitioner and writ petitioner was in connivance with the Panchyath Committee members. He would also submit that under Section 236(3), the application must be received by the Secretary and only after that the period will begin to run. In this case the application was made to the Panchayath. The Panchayath was called up on to take a decision. The Panchayath by its deliberate inaction was actually in hand in glove with the writ petitioner. In said circumstances, it is submitted that the writ petitioner cannot be entitled to the benefit of deemed license under Section 236(3) of the Act. 6. Per contra, the learned counsel for the writ petitioner **W.A No.1720 of 2013 in 7 W.P.(C) No.26574 of 2013** would submit that the application was submitted on 4-9-2013. Ext.P4 is the said application. On perusal of Ext.P4, it is seen addressed to the Secretary. The receipt is also given. The time began to run from 4-09-2013. After the expiry to 30 days, the law vouchsafes the right of a deemed license and that the benefit of the deemed license is declared by the learned Single Judge. Therefore, no interference is sought for. He also submitted that this is a case where the writ petitioner was conducting the toddy shop for 5 years across the road and it was shifted to the present location. The petitioner was forced to shift the building due to the reason that huge amount for the renewal of the lease was demanded by the previous land lord of the writ petitioner, who is hand in glove with some of the members of the Panchayath Committee. There is only one house affected, he contends. 7. The learned counsel for the respondents 2 and 3 were asked to get instruction as to why despite the direction given to take a decision, no decision was taken. Learned counsel would submit that application was received on 4-9-2013 by the Secretary. Ext.P5 **W.A No.1720 of 2013 in 8 W.P.(C) No.26574 of 2013** judgment was rendered on 10-9-2013. The Secretary on her understanding of the judgment, placed the matter before the Panchayath Committee, as it was her understanding in terms of the judgment of this court, a decision is to be taken by the Panchayath Committee. The Panchayath Committee however adjourned the matter and finally the outer limit fixed under Section 236 (3) was crossed without decision being taken. A decision was taken on 4-11-2013 purporting to reject the application. 8. It is true that there is a direction by the learned Single Judge that the Panchayath has to take a decision. As per Section 232 the authority to grant or refuse the license is the Secretary of the Panchayath. This position is also declared by this Court in judgment reported in _**Kadaplamattom Grama Panchayath v. Johny Roy (2013(3) K.L.T 1053)**_ . If that be so, read with Section 236(3) which provides for a deemed license after the expiry of 30 days from the date of receipt of the application, the conclusion is inevitable that the writ petitioner became entitled to a deemed license on 5-10-2013. The decision which is purportedly taken by the Panchayath **W.A No.1720 of 2013 in 9 W.P.(C) No.26574 of 2013** Committee declining the license after the expiry of the period mentioned would be against the provisions of Section 236(3). Even assuming for a moment that there was a collusion between the parties, we are of the view that the legislative will cannot be thwarted and the deemed license is the product of the law. 9. We are certainly anguished by the stand taken by the Panchayath. The Secretary escaped from the responsibility to take a decision which is lawfully to be taken by her with reference to the contents in the judgment of this Court. The Panchayath also did not take a decision. The whole idea behind the concept of deemed licence would appear to be, to provide a period of 30 days, so that the persons who apply for license are not harassed by procrastination on the part of the authorities. But that is a far cry from a situation where there is a specific direction by the court to take a decision. We are at a loss to understand as to how the authorities could have refused to take a decision either way. We do not approve of this sort of practice at all, whereby the party who applies becomes the winner by default, in a manner of speaking. The legislative will behind the **W.A No.1720 of 2013 in 10 W.P.(C) No.26574 of 2013** resting of discretion with the Secretary is that the Secretary exercises that power for public good as licenses are provided, to see that, on the one hand the right of the individual is not prejudiced and at the same time the public interest is secured, so that licenses are refused in appropriate cases. In fact, we would only extract Section 236(3) :- _“ Save as aforesaid, if orders on an application for any such license or permission are not communicated to the applicant within thirty or such as days longer period may be prescribed in any class of cases after the receipt of the application by the Secretary, the application shall be deemed to have been allowed for the period, if any, for which it would have been ordinarily allowed and subject to the law, rules and bye-laws and all conditions ordinarily imposed.”_ In Section 236(3) we notice that the Government has the power to make rules providing for a longer period after which alone, the deemed license would come into play in respect of specified **W.A No.1720 of 2013 in 11 W.P.(C) No.26574 of 2013** categories. Government would do well to ponder whether in the light of the cases like this a longer period could be prescribed for commodities like toddy trading as it generates much litigation and creates much heart burn to the people who are at the receiving end of effects of the functioning of such shops. But these observations cannot advance the case of the appellant, as we do not think that the declaration given by the learned Single Judge can be interfered with by this court. The writ appeal fails but we make it clear that it is without prejudice to the right of the appellant to challenge the license before any other appropriate forum. Registry will send a copy of this judgment to the Secretary, Ministry of Law, Thiruvananthapuram. **K.M.JOSEPH, JUDGE.** ## **A.HARIPRASAD, JUDGE.** amk