Noushad Vs. Kayamkulam Municipality - Court Judgment

C.N. Ramachandran Nair, J.

1. Petitioner is a resident of Ward No. XX of Kayamkulam Municipality. He has filed this Writ Petition for direction to the 1st respondent-Municipality to take immediate steps to close down the toddy shop run by the 4th respondent in the unauthorised building constructed by the 3rd respondent.

2. The case of the petitioner is that the 3rd respondent obtained Ext. P1 building permit from the 1st respondent-Municipality for construction of a residential building in Ward No. XX of the Municipality which is a residential area. However, the 3rd respondent instead of constructing a house constructed a building suitable for running a toddy shop and leased out the same to the 4th respondent wh6 is running a toddy shop there from June 2004 onwards. Since the building is an unauthorised construction, 1st respondent-Municipality has not issued completion certificate or occupancy certificate, and so much so, the toddy shop should not be permitted to be run in the building, is the case of the petitioner. The petitioner has a further case that the toddy shop run by the 4th respondent is an unauthorised one, in as much as the Municipality has not granted permission or licence to the 4th respondent under Section 447 of the Kerala Municipalities Act, (herein-after called for short 'the Act').

3. I have gone through the separate counter affidavits filed by the 1st respondent-Municipality, the Assistant Commissioner of Excise under orders of this Court and by respondents 3 and 4, and have also heard counsel appearing for the petitioner, 1st respondent, respondents 3 and 4 and the Government Pleader.

4. Counsel for respondents 3 and 4 raised preliminary objections about petitioner's locus standi to maintain the Writ Petition. According to him, petitioner is not residing near the alleged toddy shop and is living nearly 2 kms. away from the location of the toddy shop. Petitioner's cousin has filed another Writ Petition earlier and being unsuccessful to stop the toddy shop, petitioner has come in his place to maintain another Writ Petition in this Court, is the case of respondents 3 and 4. On the other hand, petitioner contended that petitioner is a resident in the same Ward and that large number of persons complained to the Municipality, including the petitioner, against the unauthorised toddy shop run in the residential area and petitioner has not filed Writ Petition for the benefit of any relative residing nearer to the toddy shop. Even though petitioner is not residing very close to the toddy shop, I feel, petitioner has a right to maintain the Writ Petition if he is the victim of nuisance created by the toddy shop. Apart from petitioner's grievance whether proved or not, on going through the counter affidavit of the 1st respondent-Municipality and after hearing counsel for Municipality. I feel, interest of justice demands interference in the matter by this Court for more than one reason. In the first place, according to the Municipality, it is not able to take any decision in the matter on account of pendency of civil suit in the Munsiff Court, Kayamkulam as O.S. No. 291/2004, filed by the 4th respondent, which on the face of it is not maintainable under Section 563 of the Act. Secondly, it is brought to the notice of this Court by the Municipality that construction of the building for running toddy shop is done by the 3rd respondent in an indirect and clandestine manner by obtaining permission for construction of a residential building and in gross violation of the plan approved by the Municipality, he constructed the building suitable for toddy shop and let it out for 4th respondent for running the toddy shop without obtaining completion certificate or occupancy certificate from the Municipality, in terms of Rule 22 of the Kerala Municipality Building Rules, 1999, hereinafter called for short 'the Building Rules'. Above all, I feel, an authoritative clarification by this Court about the Licencing authority of the Municipality for abkari shops is called for after the amendment to the Municipality Act vide Act 14/1999, where-under Sub-clauses 6 to 8 to Section 447 are deleted. A Writ Petition is not to be considered by this Court as a civil suit to redress the grievance of the petitioner alone. It is the duty of this Court under Article 226 of the Constitution to protect public interest even if it is brought to the notice of the court by a relatively less aggrieved person. Since the Municipality is dragged in a civil suit by the 4th respondent which is apparently not maintainable and since Municipality in its counter affidavit stated that large number of complaints have been received from the local residents against the running of the toddy shop in the residential area, and it cannot take a decision on account of civil suit, I feel, this Court has to exercise its jurisdiction to clarify the authority of the Municipality, to protect the interests of the local residents of Ward No. XX of the Municipality where the toddy shop is carried on in the illegally constructed building, that too, without permission from the Municipality. Therefore. I reject the objections raised by respondents 3 and 4 regarding the maintainability of the Writ Petition.

5. The first question on merits to be considered is whether a toddy shop can be permitted to be run in a building which does not have a completion certificate or occupancy certificate and which is constructed by the 3rd respondent in violation of the building plan approved by the Municipality. Even though counsel for 3rd respondent contended that what is constructed is not a 'building' and is only a 'hut', which does not need permission for construction and use, this argument is not acceptable for the following reasons. In the first place, 'hut' as defined under Rule 2(as) of the Building Rules is, any building constructed principally of wood, mud, leaves, grass, thatch or such easily perishable material. The 3rd respondent himself has produced photographs of the toddy shop building which is a pucca construction with cement, bricks and asbestose or metal roof. On the face of it, it is a pucca construction answering the definition of 'building'. Moreover, even for construction of a hut, permission is required from the Municipality under Section 398 of the Act, which 3rd respondent admittedly has not obtained. It is evident from Ext. P1 that permission granted vide Ext. P1 on 29-5-2004 was for construction of a house. However, the 3rd respondent after obtaining permit for construction of a house and getting its plan approved, constructed building for the toddy shop in gross violation of the conditions of permit and obviously he could not get any completion certificate or occupancy certificate from the Municipality. In fact, without getting occupancy certificate or completion certificate, 3rd respondent let out the building to the 4th respondent for running the toddy shop, and the excise authorities without noticing any of these violations granted permission for shifting of the toddy shop. In fact, it is stated in the counter affidavit filed by the Secretary of the Municipality to the effect that, the 3rd respondent commenced construction of the building even before the plan was approved and permit issued. However, he sorted out the problem by paying compounding fee for the said violation. Therefore, facts clearly establish that the building in which toddy shop is run in Ward No. XX of the 1st respondent-Municipality was constructed without the approval of the plan or permit granted by the Municipality under Section 387 of the Act read with Rule 4(2) of the Building Rules and is therefore an unauthorised construction. In any case, since plan approved was for residential building, construction of building for toddy shop is a violation of condition of permit which is clear violation of Section 492 of the Act read with Rule 22 of the Building Rules. Since construction of the building is unauthorised and its use for running toddy shop is violation of the conditions of the building permit, the Municipality is entitled to close down the toddy shop, evict the 4th respondent and demolish the building in exercise of the powers under Sections 406 and 492 of the Act read with Rule 18 of the Building Rules.

6. So far as the next question ie. requirement of a licence from the Municipality for running the toddy shop under Section 447(1) of the Act, I feel, licence is required under Section 447(1) of the Act even after deletion of Sub-sections 6 to 8 of Section 447 of the Act vide Act 14/1999 with effect from 24.3.1999. Counsel for respondents 3 and 4 contended that the purpose of deletion of Sub-sections 6 to 8 of Section 447 is to confine the licencing authority of abkari shops exclusively to Excise authorities. Counsel for petitioner as well as counsel for 1st respondent, on the other hand, contended that the municipal authorities have to grant licence for abkari shops and can collect licence fee etc. In order to appreciate the rival contentions the provisions that existed prior to deletion of Sub-sections 6 to 8 to Section 447 by Act 14/1999 have to be referred to. For easy reference, the provisions are extracted herein-below:

447(1). Purpose for which places may not be used without licence : A Municipality may notify by publication in the Gazette or in any other manner as may be prescribed that no place within the Municipal area shall be used for any one or more of the purposes specified in the rules made in this behalf or for any other trade without licence and except in accordance with the conditions specified therein and where the licence is for running hostels, restaurants, eating houses, coffee houses, Abkari shop, laundries, travel agency or barber saloons, the licence shall always contain and be deemed to contain that admission or service therein shall be available to any member of the public.

Deleted Sub-sections 6, 7 and 8.

(6) Notwithstanding anything contained in the Abkari Act (1 of 1077) or in 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 condition specified in the permission, locate an Abkari shop within a Municipal area.

(7) When permission is granted to locate an Abkari shop near educational institution or place of worship, the distance limit prescribed in the Abkari Act, for the time being in force, or the rules framed thereunder shall be complied with and no permission shall be granted by a Municipality to locate an Abkari shop within the said distance limit.

(8) A Municipality shall be competent, in the interest of public peace or morality or on the grounds of expediency or nuisance to order transfer of an Abkari shop from one place to another or the closure of a shop within a period not exceeding fifteen days.

7. It is pertinent to note that Act 14/1999 though deleted Sub-sections 6 to 8 with effect from 24.3.1999, it did not delete the words 'abkari shops' from the requirement of general licencing contained in Section 447(1) of the Act. The legislature therefore made absolutely clear that the Municipal authorities have to issue licence to abkari shops and their authority is not altogether taken away by the said amendment. Apart from this, I find, the deleted Sub-section 6 of Section 447 provided for previous permission from the Municipality for starting abkari shop within the Municipality prior to its deletion. Therefore, it was within the powers of the Municipality whether to permit or not to permit any abkari shop within the municipal area. Obviously if this provision was allowed to continue, it was within the powers of the Municipality to introduce prohibition by refusing to grant permission to any person to locate abkari shop within the Municipality. What the legislature intended was to take away this power enjoyed by the Municipality which entitled it to virtually introduce prohibition within the municipal area which is a larger policy decision of the Government under the Abkari Act. However, this does not mean that licencees under the Abkari Act are free to start and run abkari business anywhere in the Municipal area without any licence from the Municipality. All what is taken away is the requirement of advance permission in writing from the Municipality to locate an abkari shop within the area of the Municipality. Deleted Sub-section 7 of Section 447 only provided that Municipality while considering permit for an abkari shop should follow the distance rule with regard to educational institution, place of worship etc. mentioned in the Abkari Act, which only means that the Municipality should follow the abkari rules while licencing. Deleted Sub-section 8 to Section 447, similarly gives a power to the Municipality to order shifting of the abkari shop from one place to another on certain grounds or even to order closure for a period of not exceeding fifteen days. However, by deletion of Sub-section 6 to 9, the Municipality does not completely forfeit their authority over abkari shops within the municipal area. Even though advance permission in writing from the Municipality is no longer required, the abkari licencee is bound to take out licence for running abkari shop under Section 447(1) of the Act, and the Municipality is entitled to collect licence fee in accordance with the rules prescribed. Counsel for Municipality submitted that since no rules are made under the new Act, by virtue of the operation of Section 575(2) of the Act, the rules framed under the old Act are in force which provided for grant of licence and collection of licence fee from abkari shop including toddy shops. Therefore, Municipality, can collect licence fee from abkari shops at prevailing rates.

8. So far as the Municipality enjoys the authority to grant construction-permission for a building and approval of plan for construction, it can impose nature of use of building as a condition for granting permit and compliance of conditions can be insisted to ensure that there is no violation of the conditions of the licence issued as stated in Section 492 of the Act. Therefore, the Municipality can always prohibit running of toddy shop in a building construction-plan of which was approved for use as a residential building. When a plan approved is for the use of the building for a particular purpose, use of the building for any other purpose is a violation of the conditions of the permit and so much so the Municipality has authority under Section 492 of the Act to stop such activities. Therefore, it is within the powers of the Municipality to stop the toddy shop run by the 4th respondent in the unauthorised building constructed by the 3rd respondent for which Municipality has not granted completion or occupancy certificate. Even though counsel for respondents 3 and 4 stated that the allegation of the petitioner and the Municipality that the toddy shop is located in a residential area, is incorrect and he has produced some photographs showing vacant plots near the toddy shop to substantiate it, I am unable to accept this contention because the Municipality in its counter affidavit stated that large number of residents made complaints against the toddy shop. It is stated that the area in which toddy shop is located is a residential area. A residential colony is not made over night. On the other hand, a suitable area develops into a residential colony, in the course of time by people building houses. If a toddy shop is allowed to function in such an area, then, the same will be disincentive for other land owners to construct residential buildings in the area. It is upto the Municipality to earmark which are the areas that are suitable for development as housing colonies and if the Municipality decides not to grant any building permit except for residential buildings in such area it can prohibit construction of buildings in such area for other purposes. In other words, in exercise of the authority of the Municipality in the matter of grant of building permit, it can allow the development of exclusive residential areas, which I feel it should do for the benefit of the public. A toddy shop will be a disturbance in any exclusive residential area and it should be located elsewhere. In the circumstances. I uphold the authority of the 1st respondent under Sections 406 and 492 of the Act read with Rule 18 of the Building Rules to take appropriate steps for stoppage of toddy business and demolition of the unauthorised building constructed by the 3rd respondent in Ward No. XX where 4th respondent is carrying on the toddy shop business without licence required under Section 447(1) of the Act.

9. Before parting with the Writ Petition, interest of justice warrants disposal of O.S. 291/2004 on the file of the Munsiff Court, Kayamkulam, the records of which are called for by this Court. This is a suit for permanent injunction filed by the 4th respondent against the 1st respondent-Municipality from interfering with his toddy business. On the face of it, I find that the suit is not maintainable by virtue of Section 563 of the Municipality Act, which is as follows:

563. Jurisdiction of Civil Courts barred: No civil court shall have jurisdiction to entertain any suit, application or petition challenging the legality or propriety of any action taken by or under the authority of the Secretary under any provisions comprised in Chaps. XVII, XVIII and XIX or the rules and regulations, if any, made thereunder.

10. It is clear from the above that Section 563 expressly bars entertaining of any suit by civil court challenging the propriety or legality of any action taken by or under the authority of the Secretary under the provisions comprised in Chapters XVII, XVIII, XIX of the Act or the rules and regulations made thereunder. Granting of approval for construction of the building and action for violation etc. under the Building Rules are contained in Chapter XVIII of the Act. Therefore, suit is prima facie not maintainable. Moreover, the issue raised in the suit is decided by this Court, in these proceedings and therefore suit is now barred by res judicata. Therefore, in exercise of jurisdiction under Article 227 of the Constitution, I dismiss the suit as one no longer maintainable based on the findings in this Writ Petition.

11. Even though I have held that the 1st respondent can stop the toddy shop and order demolition of the building forthwith under Section 406 of the Act, since toddy shop was functioning in the said building from June 2004 onwards and the present licence is only upto 31.3.2006, I feel three months time should be granted to the 4th respondent or to the new licencee to find out an alternate place for running the toddy shop within the Municipality. If 3rd respondent with 4th respondent or the new licencee gives an undertaking to the 1st respondent to stop the business and demolish the building on or before 30.6.2006, then the 1st respondent will allow the 4th respondent or new licencee to continue business in the same building upto 30.6.2006 but after collection of arrears of tax and licence fee or the compounding fee or any penalty for unauthorised construction and maintenance of the building and running of toddy shop by 3rd and 4th respondents till date of demolition of the building. If undertaking is violated then, 1st respondent can forthwith take police assistance to close the business and demolish the building after 30.6.2006. The 4th respondent or new licencee can apply under Section 447(1) of the Act before the 1st respondent for licence for running the toddy shop elsewhere and I am sure the Municipality will take a realistic approach and licence should be granted in any other place other than any exclusive residential area for running the toddy shop. Registry will return the civil court records and forward a copy of operative portion of this judgment to the Munsiff Court.

The W.P. is disposed of as above. No costs.