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2006 Supreme(Online)(KER) 647
HIGH COURT OF KERALA
M.SASIDHARAN NAMBIAR, J
THARBIYYATHUL ISLAM SANGHAM – Appellant
Versus
V.P.AJITHKUMAR – Respondent
WP(C)/33630/2006
SRI.T.KRISHNAN UNNI
Bona fide intentions are essential for seeking injunctions against licensing under the Foreign Liquor Rules, especially when proximity to religious structures is alleged.
Headnote:
Injunction - Prohibitory Injunction - Kerala Abkari Act - Foreign Liquor Rules - Rules 13(3) and Section 80 CPC - The court ruled that the issuance of a license for a bar within prohibited distance of a mosque is restricted, but the petitioner's claim lacked bona fide and prima facie evidence.
Fact of the Case:
The petitioner sought a permanent injunction against the licensing of a bar due to proximity to a mosque. Lower courts denied temporary relief, citing lack of prima facie case and alternative remedies under the Kerala Abkari Act.
Finding of the Court:
The court found that the petitioner did not establish a prima facie case. The creation of a mosque deed was viewed as suspiciously timed with hotel construction, undermining claims for an injunction under the Foreign Liquor Rules.
Issues: Whether the petitioner was entitled to a temporary injunction against the issuance of a bar license due to proximity to a mosque as defined under the Foreign Liquor Rules.
Ratio Decidendi: The court held that while licensing regulations prohibit issuing licenses near religious places, the petitioner's motivation appeared dubious. A bona fide claim is necessary for equitable relief.
Final Decision: Writ petition is dismissed.
JUDGMENT
Petitioner is plaintiff in O.S.196/06 on the file of Munsiff court, Parappanangadi. Suit was instituted seeking a decree for permanent prohibitory injunction restraining defendants 2 and 3, Assistant Excise Commissioner and Excise Commissioner from issuing any license to run a bar to first respondent in violation of the rules. In the suit petitioner filed I.A.831/06 an application under Order XXXIX Rule 1 of the Code of Civil Procedure seeking an order of temporary injunction till the disposal of the suit restraining issuance of FL-3 license to first respondent to run a bar in the building constructed in the property of first respondent. Under Ext.P6 order learned Munsiff finding that petitioner has no prima facie case dismissed the application. Petitioner challenged that order before Sub court, Tirur in C.M.A.20/06. Learned Sub Judge after hearing the parties, under Ext.P7 order dismissed the appeal confirming Ext.P6 order. This petition is filed under Article 227 of Constitution of India challenging Exts.P6 and P7 orders contending that courts below did not properly consider the case at all and learned Sub Judge did not confirm the finding of the learned Munsiff in Ext.P6 and dismissed appeal holding that petitioner has an alternative remedy provided under the Act and therefore petitioner is entitled to an order of temporary injunction.
2. Learned counsel appearing for petitioner and learned Senior counsel appearing for first respondent and Government pleader were heard.
3. Learned counsel appearing for petitioner vehemently argued that the very case of the petitioner ‘ ’
is that there is a niskarapalli in the plaint B '
schedule property and it is not a 'imambra as stated by ‘ ’
learned Munsiff in Ext.P6 order and niskarapalli is a mosque and the hotel constructed by first respondent is within the prohibited distance from the mosque for which a license cannot be granted as provided under the Foreign Liquor Rules and no license could be granted in violation of the Rule 13 (3) of the Foreign Liquor Rules and this aspect was not properly considered by learned Munsiff and finding of the learned Munsiff that suit is pre-mature and is bad for want of notice under Section 80 of the Code of Civil Procedure is unsustainable. Learned counsel further argued that learned Sub Judge did not concur with those findings of learned Munsiff in Ext.P6 order and dismissed the appeal finding that petitioner has got alternative remedy under Kerala Abkari Act and therefore petitioner is not entitled to an order of temporary injunction and that finding is perverse. Relying Rule 13(3) of Foreign Liquor Rules learned counsel argued that no license could be granted in violation of the said rule if within 200 metres from the hotel there is a mosque and report submitted by the Commissioner establish that the hotel is within the prohibited area and therefore an order of temporary injunction should have been granted. Relying on the decisions of this court inSaina & others v. Konderi& others ( 1984 KLT 428 ) and Mariamma v. Thomas (2003 (1) KLT 245) learned counsel argued that plaintiff is entitled to file a suit restraining the issuance of a license in violation of the provisions of Foreign Liquor Rules and finding that suit is pre-mature and petitioner is not entitled to the order of injunction are perverse and are to be set aside. Learned counsel also argued that no irreparable injury would be caused by granting an order of injunction as first respondent can run the Three Star hotel except a bar and balance of convenience is also in favour of petitioner and therefore exercising the extra ordinary jurisdiction of this court under Article 227 of Constitution of India orders are to be quashed and an order of temporary injunction is to be granted.
4. Learned Senior counsel appearing for respondents 1 and 4 argued that petitioner is claiming right under Ext.A1 deed which was executed only on 21/3/2006 and disputed structure in the B schedule property i
