SALIH KODAPPANA Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is a native of Mukkam Grama Panchayat. The fourth respondent wanted to start a Bar Attached Hotel. For the purpose, he had sought for permission from the second respondent Panchayat. Permission was not granted. The fourth respondent therefore challenged the proceedings of the Panchayat before the Tribunal for Local Self Government Institutions, Thiruvananthapuram (hereinafter referred to as the "Tribunal" for short) in Appeal No. 292 of 2013. The petitioner claiming to be a person interested in the outcome of the controversy had got himself impleaded therein. The petitioner has filed this Writ Petition challenging Ext. P4 order of the Tribunal. As per Ext. P4 order, the Appeal of the fourth respondent has been allowed. The third respondent has been directed to take a fresh decision on the application submitted by the petitioner in the light of the directions given in paragraph 19 of Ext. P4 order. In paragraph 19, the fourth respondent has been directed to submit afresh application seeking permission to establish a Bar Attached Hotel specifying the area with respect to which the permission is sought. Upon receipt of such application, the third respondent has been directed to consider the same in the correct and legal perspective or without being carried away by the apprehension of the people of the locality and to pass appropriate orders thereon.

(2.) According to Adv. Ziyad Rahman, who appears for the petitioner the interpretation placed by the Tribunal on S. 232(2) of the Kerala Panchayat Raj Act, 1994 is erroneous and requires to be clarified. The Tribunal has in Ext. P4 proceeded on the assumption that, considerations of public peace, morality, convenience or nuisance are to be taken into account only while exercising the power under sub-section (4) of S. 232, in the matter of shifting a Bar Hotel or an Abkari Shop. Such considerations would not have any relevance while exercising the power under S. 232(2) of the Act. The only question to be considered by the Panchayat while exercising power under S. 232(2) of the Act is whether the distance stipulated by the Abkari Act, 1077 M.E. has been complied with or not. The above interpretation according to the counsel places a restriction on the power of the Panchayat, which is not discernible from the wordings of the provision.

(3.) Adv. M.G. Karthikeyan who appears for the fourth respondent on the other hand contends that, though the Tribunal has attempted to interpret the scope of S. 232 in Ext. P4 order, the direction that has ultimately been granted is only to consider the application of the fourth respondent, in accordance with law. It is also the contention of the counsel that, at the time of granting initial permission, the Panchayat would not be in a position to ascertain whether any nuisance was likely to emanate from the establishment that is proposed to be set up. The said aspect would be clear only after the establishment actually starts functioning. In such an event, the Panchayat has the power under sub-section (4) of S. 232, in exercise of which the establishment can either be ordered to be shifted or directed to be closed down on one of the grounds mentioned in the said provision. Since the considerations mentioned in sub-section (4) of S. 232 are available only in the matter of ordering shifting or closure of an establishment, there is absolutely no justification to import such grounds into S. 232(2) which has not incorporated the said grounds. Therefore, it is contended that the interpretation of the Tribunal does not require any clarification by this Court. Adv. P.J. Mathew appears for the Panchayat.