Kerala High Court

George K. Joseph vs State Of Kerala on 9 November, 2021

WP(C) No.24558/2021(S)                1




                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

              THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                      &

                  THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

         TUESDAY, THE 9TH DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943

                           WP(C) NO. 24558 OF 2021

PETITIONER:

              GEORGE K. JOSEPH, AGED 62 YEARS
              S/O. LATE K. T. JOSEPH, KOODAPUZHA HOUSE, VADAKKUMBHAGAM
              KARA, CHIRAKADAVU VILLAGE, PONKUNNAM P. O., KANJIRAPPALLY,
              KOTTAYAM - 686 506.

              BY ADVS.
              SUNIL NAIR PALAKKAT
              P.B.MUHAMMED AJEESH
              RITHIK S.ANAND
              M.A.AHAMMAD SAHEER
              JOSE CYRIAC
              K.N.ABHILASH

RESPONDENTS:

     1        STATE OF KERALA
              REP. BY ITS SECRETARY, EXCISE DEPARTMENT, SECRETARIAT,
              THIRUVANANTHAPURAM, PIN - 695 001.

     2        THE KERALA STATE BEVERAGES (M & M)
              CORPORATION LIMITED, A GOVERNMENT OF KERALA UNDERTAKING,
              REPRESENTED BY ITS MANAGING DIRECTOR, HAVING ITS HEAD
              OFFICE AT BEVCO TOWER, VIKAS BHAVAN P. O., PALAYAM,
              THIRUVANANTHAPURAM - 695 033.

              R1 BY SRI. K.R RANJITH, GOVERNMENT PLEADER               ,
              R2 BY SRI. T.NAVEEN, SC

      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

09.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) No.24558/2021(S)              2




               Dated this the 9th day of November, 2021.

                                JUDGMENT

S. MANIKUMAR, CJ.

Petitioner has filed the instant writ petition seeking for a

direction to Kerala State Beverages (M&M) Corporation Limited, a

Government of Kerala undertaking, represented by its Managing

Director, Thiruvananthapuram, 2nd respondent, to consider Exhibit-P1

representation and to recall the decision of implementing the proposed

liquor shop in the building belonging to Sri. Lalit Thakadiyel, in front of

Ponkunnam Court Complex.

2. Short facts leading to the writ petition are as under:

According to the petitioner, the 2nd respondent is taking steps to

open a new liquor outlet in front of Ponkunnam Court complex. The

road in front of the proposed liquor shop is a narrow one. A public

school and a hospital are situated approximately 200 metres from the

proposed outlet. The road is always congested due to parking of

vehicles on either side, by the lawyers, people coming to the court,

vehicles coming to the hospital etc. A bus stop is also there in front of

the proposed liquor outlet. It is also argued that the already

overcrowded court junction does not have the capacity to afford

parking of vehicles coming to the liquor shop and people coming to the

court, hospital, school, shop etc.

3. Added further, Mr. Sunil Nair Palakkat, learned counsel for the

petitioner, submitted that non-consideration of the drawbacks of the

locality and impact of the proposed beverages outlet, in an already

congested area, are definitely a matter of concern for the people of the

locality, including the petitioner. Apart from the vehicles brought by

the consumers for purchasing liquor, the long queue that may form in

front of the beverages outlet through the main road will multiply the

hardships of the commuters, as well as the residents of the locality.

4. It is also argued that since these outlets are small and dingy,

people line up in the streets making it impossible for women and

children to safely walk through these areas. It is to be noted that

school kids are also depending on the bus stop in front of this outlet

after class.

5. It is also submitted that already this Court has directed the

2nd respondent to shift liquor stores run by them to less crowded

areas. The present place identified by the 2 nd respondent is a highly

congested place; whereas the existing outlet was very conveniently

placed, without any discomfort to the public. Considering the hardships

and danger involved in locating a liquor outlet in front of the court,

near to a bus stop, the petitioner and some other people of the locality

preferred Exhibit-P1 representation to the 2nd respondent on 22nd

June, 2021. The people of the locality have come together and already

started a collective protest in front of the proposed liquor outlet to

bring the demerits and hardship of putting up such an outlet, before

the authorities concerned. The 2nd respondent is going ahead with its

proposal to commence the liquor outlet there itself. None of the

protests made by the people of the locality have opened their eyes so

far. The petitioner has also preferred Exhibit-P3 representation before

the Hon'ble the Chief Minister of Kerala. Hence, this writ petition.

6. On this day, when the matter came up for admission,

Mr. Naveen T., learned Standing Counsel for Kerala State Beverages

Corporation Ltd., respondent No.2, submitted that as per the

procedure, location/re-location of IMFL shop has to be decided by the

Excise Department on the basis of the proposal of the 2 nd respondent.

7. He further submitted that pursuant to the directions issued

by this Court, respondent No.2 has proposed to relocate the IMFL shop

to another area. He also submitted that shops are relocated as per the

provisions of the Kerala Abkari Act, 1077 and the rules framed

thereunder, and no shop can be permitted to be located in a prohibited

place. The said submission is placed on record.

8. Heard the learned counsel on both sides, and perused the

pleadings and material on record.

9. Exhibit-P1 is stated to have been submitted by the residents

of Ponkunnam Kara, Chirakkadavu Village, Kanjirappally Taluk,

Kottayam District, to the Secretary of Kerala State Beverages

Corporation. To a query, as to whether there is any such post of

Secretary in Kerala State Beverages Corporation, Mr. Naveen T.,

learned Standing Counsel, submitted that Kerala State Beverages

(M&M) Corporation Ltd., is represented by the Managing Director and

that there is no such post of Secretary in the said Corporation. He

further added that there is an officer, viz., the Company Secretary.

10. On a perusal of Exhibit-P1 representation, we find that it

does not bear any date. Besides, there is no proof of receipt of the

complaint, by respondent No.2, who is the competent officer to

propose for location/re-location of IMFL shop.

11. In the absence of any proof of acknowledgment of the

complaint stated to have been submitted by the residents of

Ponkunnam Kara, Chirakkadavu Village, Kottayam District, we cannot

come to the conclusion that having received the abovesaid complaint,

the Corporation has failed to exercise their duty and thus, this Court

can exercise the jurisdiction under Article 226 of the Constitution of

India or to issue any other appropriate directions. At this juncture, it

is profitable to go through few decisions as to when a writ of

mandamus can be issued:

(i) In State of Kerala v. A. Lakshmi Kutty reported in (1986) 4 SCC 632, the Hon'ble Supreme Court held that, a Writ of Mandamus is not a writ of course or a writ of right but is, as a rule, discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, therefore, the Court will only enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of Mandamus.

(ii) In Comptroller and Auditor General of India v. K.S.Jegannathan, reported in AIR 1987 SC 537 - (1986) 2 SCC 679, a Three-Judge Bench of the Hon'ble Apex Court referred to Halsbury's Laws of England 4 th Edition, Vol. I, Paragraph 89, about the efficacy of mandamus:

"89. Nature of Mandamus.-- ........... is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy, for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual."

(iii) In Raisa Begum v. State of U.P., reported in 1995 All.L.J. 534, the Allahabad High Court has held that certain conditions have to be satisfied before a writ of mandamus is issued. The petitioner for a writ of mandamus must show that he has a legal right to compel the respondent to do or abstain from doing something. There must be in the petitioner a right to compel the performance of some duty cast on the respondents. The duty sought to be enforced must have three qualities. It must be a duty of public nature created by the provisions of the Constitution or of a statute or some rule of common law.

(iv) Writ of mandamus cannot be issued merely because, a person is praying for. One must establish the right first and then he must seek for the prayer to enforce the said right. If there is failure of duty by the authorities or inaction, one can approach the Court for a mandamus. The said position is well settled in a series of decisions.

(a) In State of U.P. and Ors. v. Harish Chandra and Ors., reported in (1996) 9 SCC 309, at paragraph 10, the Hon'ble Apex Court held as under:

"10. ...Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition...."

(b) In Union of India v. S.B. Vohra reported in (2004) 2 SCC 150, the Hon'ble Apex Court considered the said issue and held that,- 'for issuing a writ of mandamus in favour of a person, the person claiming, must establish his legal right in himself. Then only a writ of mandamus could be issued against a person, who has a legal duty to perform, but has failed and/or neglected to do so."

(c) In Oriental Bank of Commerce v. Sunder Lal Jain reported in (2008) 2 SCC 280, at paragraphs 11 and 12, the Hon'ble Apex Court held as follows:-

"11. The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.:

"Note 187.- Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official

or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed.

Note 192.- Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty.

Note 196.- Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well-settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances.

Note 206.--......The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action."

12. These very principles have been adopted in our country. In Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh and others, AIR 1977 SC 2149, after referring to the earlier decisions in Lekhraj Satramdas Lalvani v. Deputy Custodian-cum- Managing Officer, AIR 1966 SC 334; Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College, AIR 1962 SC 1210 and Dr. Umakant Saran v. State of Bihar, AIR 1973 SC 964, this Court observed as follows in paragraph 15 of the reports :

"15. .....There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of the officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate Tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. .... In the

instant case, it has not been shown by respondent No. 1 that there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to apply for grant of a writ of mandamus under Article 226 of the Constitution and the High Court was not competent to issue the same."

(v) When a Writ of Mandamus can be issued, has been summarised in Corpus Juris Secundum, as follows:

"Mandamus may issue to compel the person or official in whom a discretionary duty is lodged to proceed to exercise such discretion, but unless there is peremptory statutory direction that the duty shall be performed mandamus will not lie to control or review the exercise of the discretion of any board, tribunal or officer, when the act complained of is either judicial or quasi-judicial unless it clearly appears that there has been an abuse of discretion on the part of such Court, board, tribunal or officer, and in accordance with this rule mandamus may not be invoked to compel the matter of discretion to be exercised in any particular way. This principle applies with full force and effect, however, clearly it may be made to appear what the decision ought to be, or even though its conclusion be disputable or, however, erroneous the conclusion reached may be, and although there may be no other method of review or correction provided by law. The discretion must be exercised according to the established rule where the action complained has been arbitrary or capricious, or based on personal, selfish or fraudulent motives, or on

false information, or on total lack of authority to act, or where it amounts to an evasion of positive duty, or there has been a refusal to consider pertinent evidence, hear the parties where so required, or to entertain any proper question concerning the exercise of the discretion, or where the exercise of the discretion is in a manner entirely futile and known by the officer to be so and there are other methods which it adopted, would be effective." (emphasis supplied)

12. Yet another aspect to be noted is that the writ petition is

filed based on the newspaper report of Deepika Daily dated 24 th June,

2021, which reads thus:

"Ruling party plans to set up beverage outlets in densely populated areas:

Ponkunnam: Locals complained that the ruling party is trying to set up a beverage outlet near the court complex. Efforts are being made to set up a new outlet in the area adjacent to the court, surrounded by a hospital and Shreyas school where many children are studying. The road in the area is very narrow and there have been instances of accidents in the past. In addition, the new location which has been identified for the beverage outlet is situated in a very crowded road and is filled with vehicles including that of advocates. The locals warned that if the outlet is set up here, the area will become a hotbed of anti-social elements and the social life of the people will be disrupted."

13. It is trite that writ petition cannot be entertained on

newspaper reports and let us consider few decisions on the said

aspect:

(i) In Laxmi Raj Shetty and Another v. State of Tamil Nadu [(1988) 3 SCC 319], at paragraphs 25 and 26, the Hon'ble Supreme Court held as under:

"25. ............ We cannot take judicial notice of the facts stated in a news item being in the nature of hearsay secondary evidence, unless proved by evidence aliunde. A report in a newspapers is only hearsay evidence. A newspaper is not one of the documents referred to in Section 78(2) of the Evidence Act, 1872 by which an allegation of fact can be proved. The presumption of genuineness attached under Section 81 of the Evidence Act to a newspapers report cannot be treated as proved of the facts reported therein.

26. It is now well settled that a statement of fact contained in a newspapers is merely hearsay and therefore inadmissible in evidence in the absence of the maker of the statement appearing in Court and deposing to have perceived the fact reported. The accused should have therefore produced the persons in whose presence the seizure of the stolen money from Appellant 2's house at Mangalore was effected or examined the press correspondents in proof of the truth of the contents of the news item. The question as to the admissibility of newspaper reports has been dealt with by this Court in Samant N. Balakrishna v. George Femandez and Ors. [(1969) 3 SCR 603]. There the question arose whether Shri George Femandez, the successful candidate returned to Parliament from the Bombay South Parliamentary Constituency had delivered a speech at Shivaji Park attributed to him as reported in the Maratha, a widely circulated Marathi

newspaper in Bombay, and it was said:

"A newspaper report without any further proof of what had actually happened through witnesses is of no value. It is at best a second- hand secondary evidence. It is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or garbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible."

We need not burden the judgment with many citations. There is nothing on record to substantiate the facts as reported in the newspapers showing recovery of the stolen amount from the residence of Appellant 2 at Mangalore. We have therefore no reason to discard the testimony of PW 50 and the seizure witnesses which go to establish that the amount in question was actually recovered at Madras on the 29th and the 30th as alleged."

(ii) In S.A. Khan v. Ch. Bhajan Lal and Another reported in (1993) 3 SCC 151: AIR 1993 SC 1348, at paragraph 22, the Hon'ble Supreme Court held as under:

"22. In the present case, no evidence has been let in proof of the statement of facts contained in the newspaper report. The absence of any denial by Ch. Bhajan Lal will not absolve the applicant from discharging his obligation of proving the statement of facts as appeared in the Press report. In fact, Ch. Bhajan Lal in his counter affidavit has taken a stand that the statements attributed to him based on the newspaper report are mere hearsay and cannot in law be relied upon for the purpose of initiating such proceedings. Therefore, in the absence of required legal proof, the Court will not be justified in issuing a suo motu notice for contempt of court."

(iii) In Ravinder Kumar Sharma v. The State of Assam and Ors., reported in AIR 1999 SC 3571, at paragraph 25, the Hon'ble Supreme Court held as under: "25. Newspaper reports regarding the Central Government decision could not be any basis for the respondents to stop action under the Assam Control Order of 1961. The paper reports do not specifically refer to the Assam Control Order, 1961. In fact, Government of Assam itself was not prepared to act on the newspaper reports, as stated in its wireless message. Section 81 of the Evidence Act was relied upon for the appellant, in this behalf, to say that the newspaper reports were evidence and conveyed the necessary information to one and all including the respondents 2 and 3. But the presumption of genuineness attached under Section 81 to newspaper reports cannot be treated as proof of the facts stated therein. The statements of fact in newspapers are merely hearsay Laxmi Raj Setty v. State of Tamil Nadu [1988CriLJ1783]."

(iv) In Vikas Vashishth v. Allahabad High Court reported in (2004) 13 SCC 485, the Hon'ble Supreme Court held as under:

"4. At the very outset, we put it to the petitioner that a bare perusal of the petition shows that it is based entirely on newspaper reports and asked him whether before filing the petition he has taken care to verify the facts personally. His answer is in the negative. In the writ petition all the 21 High Courts have been included as respondents and Union of India has also been impleaded as the 22nd respondent. We asked the petitioner what has provoked him to implead all the High Courts as respondents and he states that it is his apprehension that similar incidents may occur in other High Courts though there is no factual foundation for such appreciation.

5. After affording the full opportunity of hearing, we are satisfied that what purports to have been filed as a public interest litigation is nothing more than a "publicity interest litigation". It is writ large that it has been filed without any effort at verifying the facts by the petitioner personally."

(v) In Rohit Pandey v. Union of India reported in (2005) 13 SCC 702, Hon'ble Supreme Court held as under: "1. This petition purporting to be in public interest has been filed by a member of the legal fraternity seeking directions against the respondents to hand over the investigation of the case pertaining to recovery of light machine gun, which is said to have been stolen from the army according to reports published in two newspapers, to the Central Bureau of Investigation for fair investigation to ensure that the real culprits who are behind such theft of army arms and ammunition endangering the integrity and sovereignty of the country may be brought to book and action may be taken against them in accordance with law. The only basis for the petitioner coming to this Court are two newspaper reports dated 25-1-2004, and the other dated 12- 2-2004. This petition was immediately filed on 16- 2-2004 after the aforesaid second newspaper report appeared. On enquiry from the learned counsel, we have learnt that the petitioner is a young advocate having been in practice for a year or two. The Union of India, the State of Uttar Pradesh and the Chief Minister of the State of Uttar Pradesh, have been arrayed as party respondents. In the newspaper reports, there is no allegation either against the Union of India or against the Chief Minister.

2. We expect that when such a petition is filed in public interest and particularly by a member of the legal profession, it would be filed with all

seriousness and after doing the necessary homework and enquiry. If the petitioner is so public-spirited at such a young age as is so professed, the least one would expect is that an enquiry would be made from the authorities concerned as to the nature of investigation which may be going on before filing a petition that the investigation be conducted by the Central Bureau of Investigation. Admittedly, no such measures were taken by the petitioner. There is nothing in the petition as to what, in fact, prompted the petitioner to approach this Court within two-three days of the second publication dated 12-2-2004, in the newspaper Amar Ujala. Further, the State of Uttar Pradesh had filed its affidavit a year earlier i.e. on 7-10-2004, placing on record the steps taken against the accused persons, including the submission of the charge-sheet before the appropriate court. Despite one year having elapsed after the filing of the affidavit by the Special Secretary to the Home Department of the Government of Uttar Pradesh, nothing seems to have been done by the petitioner. The petitioner has not even controverted what is stated in the affidavit. Ordinarily, we would have dismissed such a misconceived petition with exemplary costs but considering that the petitioner is a young advocate, we feel that the ends of justice would be met and the necessary message conveyed if a token cost of rupees one thousand is imposed on the petitioner "

(vi) In Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra and Ors. [(2007) 14 SCC 281], the Hon'ble Supreme Court held as under:

"18. Courts must do justice by promotion of good faith, and prevent law from crafty invasions. Courts must maintain the social balance by interfering where necessary for the sake of justice and refuse to interfere where it is against the social interest

and public good. (See State of Maharashtra v. Prabhu (1995) ILLJ 622 SC, and Andhra Pradesh State Financial Corporation v. GAR Re-Rolling Mills and Anr. [1994] 1 SCR 857. No litigant has a right to unlimited draught on the Court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived and frivolous petitions. [See Dr. B.K. Subbarao v. Mr. K. Parasaran (1996 CriLJ 3983)]. Today people rush to Courts to file cases in profusion under this attractive name of public interest. They must inspire confidence in Courts and among the public.

19. As noted supra, a time has come to weed out the petitions, which though titled as public interest litigations are in essence something else. It is shocking to note that Courts are flooded with a large number of so called public interest litigations where even a minuscule percentage can legitimately be called as public interest litigations. Though the parameters of public interest litigation have been indicated by this Court in a large number of cases, yet unmindful of the real intentions and objectives, Courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases. It is also noticed that petitions are based on newspaper reports without any attempt to verify their authenticity. As observed by this Court in several cases newspaper reports do not constitute evidence. A petition based on unconfirmed news reports, without verifying their authenticity should not normally be entertained. As noted above, such petitions do not provide any basis for verifying the correctness of statements made and information given in the petition. It would be desirable for the Courts to filter out the frivolous petitions and dismiss them with costs as aforestated so that the message goes in the right direction that petitions filed with

oblique motive do not have the approval of the Courts."

14. Further, Exhibit-P3 dated 03.11.2021 is a complaint stated

to be submitted to the Hon'ble the Chief Minister of Kerala by the

residents of Ponkunnam Kara, Chirakkadavu Village, Kanjirappally

Taluk, Kottayam District, and there is no proof of even sending the

complaint or of acknowledgment.

15. In the light of the above discussion and decisions, we are

not inclined to issue any mandamus, as prayed for by the petitioner.

However, we direct the 2nd respondent to consider Exhibit-P1

representation, if received, within a period of 15 days from the date of

receipt of a certified copy of this judgment. Said representation be

forwarded to the Managing Director of the respondent Corporation. If

Exhibit-P1 representation is not received by the 2nd respondent, it is

open to the writ petitioner to make a detailed representation, and the

same has to be considered on merits, in accordance with law.

Accordingly, this writ petition is disposed of.

sd/-

S. MANIKUMAR, CHIEF JUSTICE.