Judgment:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE19H DAY OF MARCH201428TH PHALGUNA, 1935 WP(C).No. 7955 of 2014 (T) -------------------------------------- PETITIONER: ------------------- KERALA STATE BEVERAGES (MANUFACTURING AND MARKETING ) CORPORATION LIMITED, P.B.NO.2263, SASTHAKRIPA OFFICE COMPLEX, SASTHAMANGALAM P.O., TRIVANDRUM - 695 010, REPRESENTED BY ITS REGIONAL MANAGER - N-1 MR.G.MOHANAN. BY ADV. SRI.C.S.AJITH PRAKASH RESPONDENTS: ------------------------ 1. THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.
2. THE SECRETARY, CORPORATION OF THIRUVANANTHAPURAM, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, PIN:
695. 033.
3. THE SUPERINTENDENT, ZONAL OFFICE, NEMAM, CORPORATION OF THIRUVANANTHAPURAM.
4. THE DEPUTY COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM, OFFICE OF THE DEPUTY COMMISSIONER OF EXCISE THIRUVANANTHAPURAM. R1 & R4 BY GOVERNMENT PLEADER SMT.ANITHA RAVENDRAN R2 & R3 BY SRI.P.K.MANOJKUMAR,SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON1903-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Msd. WP(C).No. 7955 of 2014 (T) -------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXT.P1: A TRUE COPY OF THE LICENSE ISSUED BY THE EXCISE DEVELOPMENT RENEWED UPTO31T MARCH2014 EXT.P2: A TRUE COPY OF THE TRADE LICENSE APPLICATION SUBMITTED BY THE MANAGER WARE HOUSE, BALARAMAPURAM FOR THE YEAR201112. EXT.P3: ATRUE COPY OF THE TRADE LICENSE APPLICATION SUBMITTED BY THE MANAGER WARE HOUSE, BALARAMAPURAM FOR THE YEAR20122013. EXT.P4: ATRUE COPY OF THE TRADE LICENSE APPLICATION SUBMITTED BY THE MANAGER WARE HOUSE, BALARAMAPURAM FOR THE YEAR20132014. EXT.P5: A TRUE COPY OF THE COVERING LETTER FORWARDED BY THE MANAGER TO THE2D RESPONDENT DATED1001/2014. EXT.P6: A TRUE COPY OF THE CONSENT LETTER DATED1010/2013 OF THE LANDLORD. EXT.P7: A TRUE COPY OF THE RENT AGREEMENT DATED1103/2014. EXT.P8: A TRUE COPY OF THE ORDER
NO.T4/2188/2014 DATED0703/2014 ISSUED BY THE DEPUTY COMMISSIONER OF EXCISE THIRUVANANTHAPURAM. EXT.P9: ATRUE COPY OF THE RECEIPT NO.0163304, DATED0503/2014 ISSUED BY THE2D RESPONDENT. EXT.P10: A TRUE COPY OF THE CONSENT LETTER ISSUED BY THE LANDLORD. EXT.P11: ATRUE COPY OF THE LICENSE APPLICATION PREPARED BY THE PETITIONER KSBC FOR ONWARD SUBMISSION TO THE2D RESPONDENT. EXT.P12: A TRUE COPY OF THE COVERING LETTER DATED1103/2014 PREPARED BY THE MANAGER FOR SUBMISSION TO THE2D RESPONDENT. EXT.P13: ATRUE COPY OF THE NOTICE NO.Z-N3/MS/503/2014 DATED1103/2014 ISSUED BY THE2D RESPONDENT. EXT.P14: A TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER TO THE POLICE COMMISSIONER, THIRUVANANTHAPURAM DATED1403/2014. EXT.P14: ATRUE COPY OF THE HEARING NOTICE DATED1503/2014 ISSUED BY THE2D RESPONDENT. MSD. WP(C).NO. 7955 OF2014(T) -------------------------------------- EXT.P15: A TRUE COPY OF THE JUDGMENT
DATED2510/2011 IN WRIT APPEAL NO.628/2010. RESPONDENT(S)' EXHIBITS: ----------------------------------------- NIL //TRUE COPY// P.A.TO JUDGE. Msd. C.K. ABDUL REHIM, J.
------------------------------------------------- W.P.(c) No. 7955 OF2014T ------------------------------------------------- DATED THIS THE19h DAY OF MARCH, 2014.
JUDGMENT
The petitioner is a Corporation fully owned by the State Government. Challenge is against Ext.P13 notice issued by the 2nd respondent directing to close down a Beverages outlet, being conducted in a Building bearing No.TC512475, without licence obtained from the local authority.
2. Averments are to the effect that the petitioner was granted with privilege to run foreign liquor shop (FL1 licence) for conducting retail sale, and had started a shop at Pappanamcode in the year 2003, in a Building bearing No.TC512471, 2471 (1), 2471 (2) & 2471 (4). Exhibit P1 is the licence issued by the Excise Department. It is stated that, earlier there was no need to take licence from the local authority for conduct of the retail outlet. But the position was changed by virtue of Ext.P16 judgment. According to the petitioner, application for grant of trade W.P.(c) No. 7955/2014 -2- licence was submitted on 10-01-2014, with respect to the years 2011-2012, 2012-2013 & 2013-2014. Exhibits P2 to P4 are copies of the applications submitted in this regard. It is mentioned that Exts.P2 to P4 applications were not rejected by the 2nd respondent. Therefore the contention is contended that the petitioner was entitled to run the shop on the basis of deeming provision contained in the Municipality Act. Shifting of the FL1 shop became necessary due to widening of the National Highway and demolition of the existing building. Under such circumstances a new building bearing No.TC512475 was arranged on the basis of lease agreement executed with the land lady. Permission from authorities of the Excise Department was obtained for shifting of the shop. It is stated that, the land lady of the new shop had applied before the 2nd respondent for conversion of nature of occupancy of the building as commercial from residential. But it is alleged that the 2nd respondent is deliberately keeping the said application pending, without allowing it. W.P.(c) No. 7955/2014 -3- On 11-03-2013 the petitioner had approached the 2nd respondent with an application for grant of licence in the new premises. But it is alleged that the 2nd respondent had not entertained the application.
3. Shifting of the shop was effected on 08-03-2014 and business started at the new premises on that day. But on 14-03-2014 Ext.P13 notice was served, requiring the petitioner to close down the shop, within 24 hours. It is stated that certain persons in the locality had staged a 'Dharna' before the new shop and created physical obstruction. They have forced the Manager to close down the shop on 14-03-2014 itself. Eventhough the petitioner Corporation submitted Ext.P14 complaint befroe the police authorities, no action was taken. Hence the petitioner is approaching this court.
4. Exhibit P13 is challenged as illegal and unsustainable. It is pointed out that, after issuing Ext.P13 notice the petitioner was invited for a personal hearing by the 2nd respondent on the basis of Ext.P15 notice. Learned W.P.(c) No. 7955/2014 -4- counsel for the petitioner contended that the 2nd respondent had not followed the procedure contemplated under Section 532 in directing to close down the shop. It is further contended that the direction for stoppage of the shop within 24 hours is totally unreasonable and arbitrary. The personal hearing which is now afforded as per Ext.P15 notice ought to have preceded the closure, is the contention. It was also contended that for shifting of an existing shop there is no need for obtaining any fresh licence.
5. Under Section 447 of the Kerala Municipality Act, 1994 (the Act for short) there is a prohibition with respect to usage of any place within the municipal area for any one or more of the purposes specified in the Rules made or for any other trade, without licence and except in accordance with the conditions specified in the licence. Section 532 deals with the consequences on failure to obtain licence. When any act is done without licence or permission or registration or in a manner inconsistent with the terms of any such licence, the 2nd respondent is bound to issue notice W.P.(c) No. 7955/2014 -5- requiring the person doing such act to alter, remove or restore to its original position, within a time to be specified in the notice. In the case at hand Ext.P13 is obviously a notice issued under Sections 532, on the basis that the petitioner was running the outlet without taking licence as required under Section 447. Contentions of the petitioner that no previous notice was issued and no reasonable time for stoppage was granted, cannot be accepted. This is especially in view of the provisions contained in sub section (5) of Section 532, which provides that if the Secretary is satisfied that immediate action is necessary he can cause any trade, business or premises which is held or kept open to be closed, in respect of which a licence, permission or registration has to be obtained under the provisions of the Act.
6. In Ext.P16 judgment of a Division Bench of this court it is held that there is no provision under the Municipalities Act to exempt Government companies or liquor traders from obtaining licence for carrying on W.P.(c) No. 7955/2014 -6- business. However it is mentioned that the Municipalities or Panchayats are not entitled to arbitrarily reject licence to Beverages Corporation, which is a Government of Kearla undertaking.
7. Learned counsel had produced copy of the Kerala Municipality (Second Amendment) Ordinance, 2012. Amendments were brought into Section 447 incorporating sub sections (7) to (10), with effect from 25-11-2012. Sub section (7) of Section 447 provides that, notwithstanding anything contained in the Abkari Act or any other law for the time being in force, no person shall, without previous permission in writing of a Municipality and except in accordance with the conditions specified in the permission, locate an Abkari shop within a Municipal area. Sub section (8) provides that while granting permission the Municipality shall comply with the distance Rules and prohibitions contained in the Abkari Act. Sub section (9) provides that the Municipality shall be competent in the interest of public peace or morality or on the grounds of expediency or W.P.(c) No. 7955/2014 -7- nuisance to order transfer of an Abkari shop from one place to another or to close the shop within a period not exceeding 15 days, as may be directed in this behalf. Learned counsel pointed out that sub section (10) provides that the provisions of sub section (7) to (9) is not applicable with respect to any Abkari shop existing on the date of commencement of the amendment. He had placed reliance on a Division Bench decision of this court in Unnikrishnan A.G. V. Commissioner of Excise, Tvm. and another (2014 (1) KHC140(DB). Referring to the amendment in the Kerala Panchayat Raj Act, 1994, which contains identical provisions, it is held that Section 232 (2) to (4) of the Kerala Panchayat Raj Act will not apply to toddy shops in existence as on 25-11-2012, when the ordinance came into force. It is further held that subject to all legal provisions, Section 232 (2) to sub section (4) will not apply to relocating toddy shops existing as on the date of the ordinance, in the area within the boundaries alloted for locating such shops. Therefore it is held that sub section (2) W.P.(c) No. 7955/2014 -8- to (4) are not applicable to shops in existence as on 25-11- 2012, for its continuance at the existing location and also for relocating such shops within the alloted boundaries, provided all legal provisions are satisfied.
8. This court is of the considered opinion that dictum contained in the decision cited cannot be made use in a case where the shop in question was conducted as on 25-11- 2012 without obtaining licence from the Panchayat or Municipality. However in the case at hand it is admitted by the petitioner that the shop in question was shifted to the present building only on 08-03-2014, that is much after the amendment ordinance came into force. Further, the petitioner has no case that the 2nd respondent had issued any licence for conduct of the FL1 shop at the earlier premises, apart from the contention based on the deeming provision, which cannot be made use for the new building for the current year of 2014-15.
9. It is evident from Ext.P15 that after receipt of Ext.P13 notice the petitioner had submitted reply before the W.P.(c) No. 7955/2014 -9- 2nd respondent on 15-03-2014. It is on the basis of the said reply, that a hearing was convened by the 2nd respondent on 17-03-3014. Learned counsel for the petitioner submitted that pursuant to the hearing conducted, the 2nd respondent had issued a further proceedings rejecting the contentions of the petitioner that no lience is required for shifting of the retail outlet. It is further ordered that, since the business is conducted without licence the 2nd respondent is competent to take steps to close down the shop in question.
10. From the facts enumerated as above, this court finds no legal ground existing to interfere with Ext.P13 or with respect to the subsequent decision taken rejecting the contentions of the petitioner. Legal position remains that the petitioner is bound to take licence under Section 447, read with the relevant Rules, for conduct of the retail outlet in the present building. Hence the writ petition deserves no merit and the same is accordingly dismissed.
11. However, learned counsel for the petitioner had raised a contention that the application for licence W.P.(c) No. 7955/2014 -10- submitted before the 2nd respondent was not received. It is made clear that it will be left open to the petitioner to apply for licence in the building where the retail shop is now proposed. If any such application is submitted before the 2nd respondent, the 2nd respondent shall receive the same and take appropriate decision with respect to grant of licence, if necessary after placing the same before the Council of the Corporation.
12. Needless to observe that a decision on such application if any submitted shall be taken at the earliest, without any further delay. It is further observed that, application if any submitted by the land lady with respect to change of occupancy shall also be dealt with by the 2nd respondent without any further delay. Sd/- C.K. ABDUL REHIM, JUDGE. AMG True copy P.A to Judge