P.V. BABU Vs. THANNEERMUKKAM GRAMA PANCHAYATH

JUDGEMENT

(1.) The bone of contention of these writ petitions is a building bearing No. T.P.6/339 G of Thanneermukkam Grama Panchayat. Since the factual issues are intertwined and interrelated these writ petitions are taken up for joint consideration and disposal. W.P. (C) No. 728 of 2014 is taken as the main case and hereafter in this judgment the parties are referred to in the order they are arrayed and the documents are referred to in the order they are set out in the said writ petition. The petitioner in the former writ petition is conducting a toddy shop in the aforesaid building bearing No. T.P.6/339 G of Thanneermukkam Grama Panchayat. The petitioner in the latter writ petition is the owner of the said building. Admittedly, the occupancy of the said building is residential and the grievance of the petitioner in the latter writ petition is against Ext. P2 reply received in response to her application for changing it as commercial occupancy to the effect that the said application could not be considered owing to the pendency of the former writ petition filed against the smooth functioning of the said shop. At the very outset, it is to be noted that there is conflict in interest between the petitioners. I will deal firstly with the issues involved and the arguments advanced in the former writ petition. The petitioner is a licencee to vend toddy and he was conducting Toddy Shop No. 28/12-13 upon grant of licence with No. 71/12-13. It was originally functioning in building No. T.P.6/819 of Thanneermukkam Grama Panchayat and subsequently, it was shifted to the building in question. Respondents 3 to 5 filed Ext. P6 appeal virtually, against the grant of the licence to the petitioner in the former writ petition. However, the learned counsel appearing for the petitioner submitted that in fact, no licence as such was issued by respondents 1 and 2 for the purpose of conducting the said toddy shop in the aforesaid building though the petitioner accrued a deemed licence for its functioning. The petitioner earlier submitted an application under Section 232 of the Kerala Panchayat Raj Act (for short 'the Act') and under the Kerala Panchayat (Issue of licence to Dangerous and Offensive Trades and Factories) Rules, 1996 (for short 'the Rules') for permission to conduct the toddy shop from the aforesaid building. It is the common case that the said application was not disposed of within a period of 30 days. Later, a question as to whether owing to the lapse of 30 days without a decision on that application the applicant accrued a deemed licence under Section 236(3) of the Act, came up for consideration before this Court in WP (C) No. 26574 of 2013. That writ petition was disposed of by this Court as per Ext. P3 judgment. Evidently, relying on a Division Bench decision of this Court in Mohan v. Sub Inspector of Police, 2011 1 KerLT 1023 this Court held that on expiry of the statutorily prescribed period of 30 days without a decision on such an application the petitioner therein accrued a deemed licence to operate and the period of deemed licence would be one year from 04/10/2013. A third party appeal viz., WA No. 1720 of 1993 was preferred against the said judgment. It was filed by the third respondent in this writ petition along with one Sajimon. The said writ appeal was disposed of by this Court as per Ext. P4 judgment. Virtually, as per Ext. P4, the Division Bench declined to interfere with the declaration granted by the learned Single Judge in Ext. P3 judgment. At the same time, it was made clear thereunder that the dismissal of the writ appeal was without prejudice to the right of the appellants to challenge the licence before any appropriate forum. Availing the liberty thus given by the Division Bench in Ext. P4 judgment Ext. P6 appeal was preferred by the appellants therein before the Committee of the first respondent Panchayat. On receipt of Ext. P6 the petitioner was put on notice and subsequently he filed Ext. P7 objection. Essentially, the petitioner herein challenged the very maintainability of Ext. P6 appeal filed under Section 276(1) of the Act. After overruling the said objection and holding that Ext. P6 appeal would lie under Section 276(1) of the Act the Committee of the Panchayat proceeded with the hearing of Ext. P6 appeal and passed Ext. P8 order. As per Ext. P8, it was found that, since the building in question situates in the midst of a thickly populated place and that the majority of people in the locality are against the functioning of the said toddy shop in the said building and that the building is a residential occupancy the request of the petitioner could not be acceded to. It is in the said circumstances that seeking quashment of Ext. P8 and issuance of a writ of mandamus directing the respondents not to interfere with the smooth functioning of the toddy shop TS No. 28 functioning in Building No. T.P.6/339-G till the expiry of the appeal period as provided under Section 276 of the Act, the former writ petition has been filed. The petitioner in the latter writ petition, as noticed hereinbefore, submitted an application for changing the occupancy for the purpose of enabling the petitioner in the former writ petition to conduct the aforesaid toddy shop in the said building and she was informed vide Ext. P2 that it could not be considered owing to the pendency of the former writ petition.

(2.) I have heard the learned counsel for the petitioners in both these writ petitions, the learned standing counsel appearing for respondents 1 and 2 and also the learned counsel appearing for respondents 3 to 5.

(3.) The arguments advanced by the learned counsel on both sides would reveal that the first point to be decided is whether Ext. P6 appeal could have been entertained by the Committee of the first respondent under Section 276 of the Act. According to the learned counsel for the petitioners a bare perusal of the provisions under Section 236(9) would reveal that in case of any grievance against the accrual of a deemed licence under Section 236(3) of the Act the aggrieved party has to resort to the remedy available under Section 236(9) seeking for its cancellation or revocation. In other words, according to the learned counsel appearing for the petitioners, the sole remedy in such circumstances is the one prescribed under Section 236(9) viz., seeking for its cancellation or revocation and at any rate, an appeal under Section 276 will not lie, in such circumstances. As noticed hereinbefore, with respect to the factual aspect that the petitioner accrued a deemed licence by virtue of operation of Section 236(3) is not in dispute and in fact, it is indisputable in the light of Exts. P3 and P4. It is evident that the third respondent along with Sajimon, the other appellant in WA No. 1720 of 2013, filed Ext. P6 appeal raising grievances against the grant of licence in favour of the petitioner in troth, the accrued 'deemed licence' for functioning the toddy shop in the building concerned. Admittedly, Ext. P6 is filed under Section 276 of the Act. The learned Standing counsel appearing for respondents 1 and 2 and the learned counsel appearing for respondents 3 to 5 submitted that Ext. P6 appeal was maintainable under Section 276 of the Act and it was rightly entertained by the Committee of the first respondent and in such circumstances, if the petitioner is aggrieved by Ext. P8 his statutory remedy is to approach the Tribunal for Local Self Government Institutions. I will now proceed to consider the question as to what exactly is the remedy available to an aggrieved party against the accrual of a deemed licence under Section 236(3) of the Act to an applicant for licence. In other words, the question is whether an appeal will lie under Section 276 of the Act against such accrued deemed licence or whether a petition seeking its revocation or cancellation under Section 236(9) of the Act is the appropriate remedy under such circumstances.