A. J. VARGHESE Vs. STATE OF KERALA

JUDGEMENT

(1.) 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 8th respondent, then applied for FL-1 licence to conduct foreign liquor outlet in the aforementioned portion of the building 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 8th respondent herein to the wife of the appellant. It is pertinent to note that the order of rejection of the application submitted by the 8th respondent is not produced in the writ petition as also in this appeal. The petitioner filed the writ petition seeking the following reliefs:-

(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 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 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.