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2014 Supreme(Ker) 474

High Court of Kerala
C.T. RAVIKUMAR, J.
P.V. Babu
Versus
Thanneermukkam Grama Panchayath represented by its President & Others
WP (C). No. 728 of 2014 (M)
Decided On: 13-08-2014

Advocates Appeared:
For the Petitioner:R. Krishna Raj, E.S. Soni, Advocates.
For the Respondents:R1 & R2, Joby Cyriac, R3 -R5, P.V. Jayachandran, Advocates.

Headnote:

Kerala Panchayat Raj Act, 1994 - Section 236(3), 276(1), 236(9) - Secretary - Power of - Licence - Right seek for invocation of powers - Omission - Inaction - Findings of - Held, Word suo motu is not employed anywhere in the section or in its caption - Court held that though it is a suo motu power available with the Excise Commissioner it could be triggered in a given case at the request of an aggrieved person - Court have no hesitation to hold that Ext.P6 appeal was maintainable and rightly entertained by the Committee under S.276 of the Act - Court do not find any illegality in the action of the Committee of the Panchayat in having entertained an appeal and passing order - Court is of the view that a party who is aggrieved by the accrual of a right of deemed licence under S.236(9) could seek for invocation of the power vested with the Secretary by filing of an application - Court is of the view that though it is not specifically stated in S.236(9) of the Act that the said power conferred on the Secretary of the Panchayat concerned is a suo motu power what is actually available and conferred on the Secretary concerned is a power to be exercised suo motu in appropriate circumstances subject to the satisfaction of the situations envisaged thereunder

Judgment :

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.

2. 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 W.P.(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) KLT 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 4.10.2013. A third party appeal viz., W.A.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 petit













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