The Secretary vs Kerala State Beverages ...
2021 Latest Caselaw 21191 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
                               &
          THE HONOURABLE MRS. JUSTICE C.S. SUDHA
  WEDNESDAY, THE 20TH DAY OF OCTOBER 2021 / 28TH ASWINA,
                              1943
                    WA NO. 906 OF 2021
AGAINST THE JUDGMENT DATED 01.07.2021 IN WP(C) 21607/2020
            OF HIGH COURT OF KERALA, ERNAKULAM
APPELLANTS/RESPONDENTS 1 & 2:

    1     THE SECRETARY,
          ELANKUNNAPUZHA GRAMA PANCHAYAT, MALIPPURAM P.O.,
          ERNAKULAM, PIN-682 511.
    2     ELANKUNNAPUZHA GRAMA PANCHAYAT,
          REPRESENTED BY ITS SECRETARY, MALIPPURAM P.O.,
          ERNAKULAM, PIN-682 511.
          BY ADVS.
          K.JAJU BABU (SR.)
          P.M.BENZIR


RESPONDENTS/WRIT PETITIONER & RESPONDENTS 3 TO 8:

    1     KERALA STATE BEVERAGES (MANUFACTURING AND
          MARKETING) CORPORATION LTD.,
          BEVCO TOWER, VIKAS BHAVAN P.O., PALAYAM,
          THIRUVANANTHAPURAM-695 003, REPRESENTED BY
          RAJESH T., MANAGER, WARE HOUSE, CHOONDI, ALUVA.
    2     DEPUTY COMMISSIONER OF EXCISE,
          EXCISE DIVISIONAL OFFICE,
          ERNAKULAM DISTRICT, PIN-682 018.
 W.A. No.906 of 2021              2


    3      THE SECRETARY
           OCHANTHURUTH VETTUVA SABHA, OCHANTHURUTH P.O.,
           VALAPPU, ERNAKULAM DISTRICT-682 508.
    4      THE KENDRA SAMITHI
           NITHYA SAHAYA MATHA PALLI, OCHANTHURUTH P.O.,
           VALAPPU, ERNAKULAM DISTRICT-682 508.
    5      THE HEADMISTRESS,
           CARMEL ENGLISH MEDIUM SCHOOL, OCHANTHURUTH P.O.,
           VALAPPU, ERNAKULAM DISTRICT-682 508.
    6      PARENT TEACHERS ASSOCIATION,
           CARMEL ENGLISH MEDIUM SCHOOL, OCHANTHURUTH P.O.,
           VALAPPU, ERNAKULAM DISTRICT-682 508.
    7      K.G.MARTIN,
           KARINGADU HOUSE, OCHANTHURUTH P.O., VALAPPU,
           ERNAKULAM DISTRICT-682 508.
           BY ADVS.
           K.B.GANGESH
           S.SUJIN
           NAVANEETH D.PAI
           SRI.N.N.SUGANAPALAN


        THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
20.10.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 W.A. No.906 of 2021                   3




             P.B.SURESH KUMAR & C.S.SUDHA, JJ.
              -----------------------------------------------
                  Writ Appeal No.906 of 2021
              -----------------------------------------------
          Dated this the 20th day of October, 2021


                           JUDGMENT

P.B.Suresh Kumar, J.

Appellants are respondents 1 and 2 in the writ

petition. Among them, the second appellant is a Panchayat and

the first appellant is the Secretary of the Panchayat.

2. The first respondent, the Kerala State

Beverages (Manufacturing & Marketing) Corporation Ltd., was

running a foreign liquor outlet at Cherai and they have shifted

the same to a place within the limits of the Panchayat, after

obtaining necessary permission from the competent authorities

under the Abkari Act and the Rules made thereunder. While the

outlet was being run by the first respondent in the new

location, on 30.07.2020, the first appellant issued a memo to

the first respondent directing to stop the functioning of the

outlet on the ground that they have not obtained licence of the

Panchayat for the same. In the meanwhile, the first respondent

preferred an application before the Panchayat for licence. The

said application was rejected by the Panchayat on 19.08.2020.

The stop memo dated 30.07.2020 and the order rejecting the

application for licence dated 19.08.2020 have been challenged

by the first respondent in the writ petition, and the challenge

was upheld on the ground that the Panchayat is empowered to

insist licence for the trade of the first respondent only if a

notification is issued by the Panchayat under Section 232(1) of

the Kerala Panchayat Raj Act, 1994 (the Act). The appellants

are aggrieved by the decision in the writ petition.

3. Heard the learned Senior Counsel for the

appellants as also the learned Senior Counsel for the first

respondent.

4. The fact that a notification under Section

232(1) of the Act is required for the Panchayat to insist licence

for the trade carried on by the first respondent was not

disputed by the Panchayat in the writ petition. Their contention,

on the other hand, was only that there was already a

notification in terms of the provision pursuant to the resolution

of the Panchayat dated 19.07.1996. Admittedly, the Panchayat

has not made available the notification claimed to have been

issued under Section 232(1) of the Act. The learned Single

Judge, after referring to the resolution of the Panchayat dated

19.07.1996, found that the same is not a resolution to issue a

notification under Section 232(1) of the Act, but only a

resolution taken for fixing the fee for the various items in

Schedule-I of the Kerala Panchayat Raj (Issue of Licence to

Dangerous and Offensive Trades and Factories) Rules, 1996.

That apart, the learned Single Judge also found that if at all

there was a notification under Section 232(1) of the Act, the

Panchayat should have made available the same in the

proceedings. It is on those grounds that the learned Single

Judge upheld the contention of the first respondent. We do not

find any infirmity in the decision of the learned Single Judge.

In the said view of the matter, the writ appeal is

without merits and the same is, accordingly, dismissed. It is,

however, made clear that this judgment will not preclude the

appellants from issuing a notification under Section 232(1) of

the Act and insisting licence for the various trades covered by

the Kerala Panchayat Raj (Issue of Licence to Dangerous and

Offensive Trades and Factories) Rules, 1996.

Sd/-

P.B.SURESH KUMAR, JUDGE.

Sd/-

C.S.SUDHA, JUDGE.

YKB