J. Issac Vs. the Managing Director and ors. - Court Judgment

Excerpt:
- antony dominic, j.1. petitioner claims to be a native of thachampara grama panchayat, the 5th respondent herein. by ext.p1 order passed by the government of kerala exercising its powers under the provisions of the kerala abkari shops disposal rules, 2002, one additional foreign liquor i shop was alloted to the palakkad division. according to the petitioner, though the said shop was intended to be started at kalladikode, it was established within the territory of the 5th respondent panchayat in violation of the provisions contained in the rules mentioned above.2. according to the petitioner, the shop has been located in building no. 2/187 of thachampara grama panchayat, which is stated to be within 150 metres of kunnathkavu temple and therefore is situated within the prohibited distance in terms of rule 7(2) of kerala abkari shops disposal rules, 2002. he also contends that the shop has been established without obtaining licence from the 5th respondent panchayat in terms of the provisions contained in the kerala panchayat raj (issue of licence to dangerous and offensive trades and factories) rules, 1996.3. a statement has been filed on behalf of the 1st respondent. in so far as the contention that the shop is situated within the prohibited distance is concerned, it is stated that the temple is not situated within the prohibited distance of 200 meters from the shop in question and therefore the shop is not within the prohibited distance. it is also contended that in respect of the shop in question, necessary licences have been granted by the excise authorities after due verification. although the panchayat also says that they had passed a resolution against the location of the shop and moved the excise authorities, still having regard to the rival claims made by the petitioner and the 1st respondent and this being a disputed question of fact, on the materials available, this court will not be justified in rendering a conclusive finding on this issue. therefore, if aggrieved, it is up to the petitioner or the panchayat to pursue their case before the excise commissioner and in which event, it is up to that authority to deal with the issue.4. the second contention of the petitioner is that the shop has been established without obtaining licence from the 5th respondent panchayat. the 1st respondent is admitting that it has not obtained any licence. however, it is seeking to justify its stand relying on section 237 of the kerala panchayat raj act and reference is also made to the order passed by the tribunal for local self government institutions in revision petition no. 7/04. according to the 1st respondent, it being an undertaking fully owned by the government, it is not necessary to obtain licence and permission in view of section 237 of the kerala panchayat raj act and that the said stand has been upheld by the tribunal in the order referred to above.5. section 237 of the kerala panchayat raj act reads as under:237. government not to obtain licence and permission: nothing in this act or in rule or bye-law made thereunder shall be construed as requiring any state government or the central government to take out a licence in respect of any place in the possession or under the control of or any property belonging to such government.a reading of this section shows that the state government or the central government is not required to take out any licence in respect of any place in the possession of such government or in respect of any place under the control of such government or in respect of any property belonging to such government.6. the 1st respondent in this writ petition, the kerala state beverages corporation limited is a company incorporated under the companies act, 1956 and in view of the 100% shareholding of government of kerala, it is a government company as defined in section 617 of the companies act. it is such a government company, and not the government, which has established a foreign liquor retail outlet and the question is whether such an outlet is eligible for the benefit of section 237.7. in my view, the 1st respondent cannot claim the benefit of section 237. admittedly, the foreign liquor retail outlet is not established by the government but by a government company. a government company cannot claim the benefit of section 237, which is available only to government. government company will have to obtain all licences, like any other citizen of this state. in this case, admittedly, the 1st respondent or the 2nd respondent have not obtained any licence from respondents 4 and 5 and therefore, their stand that they need not obtain licence in view of section 237 is only to be rejected and i do so.8. true, the tribunal for local self government institutions appears to have taken the view consistent with what is contended by respondents 1 and 2. but, however, having regard to the legal position as above, i am not in a position to accept the reasoning of the tribunal and uphold the contention of respondents 1 and 2.9. however, fact remains that so far respondents 1 and 2 were proceeding on the bonafide belief that no licence is required to be obtained. having regard to this fact, i am inclined to think that a reasonable time can be given to respondents 1 and 2 to make application to respondents 4 and 5 and further direct respondents 4 and 5 to pass orders on such application. therefore, it is directed that if respondents 1 and 2 so choose, it will be open to them to make application to respondents 4 and 5 within one week from today and if such an application is received and if the application is otherwise in order in all respects, necessary licence shall be issued within 2 weeks thereafter. in the meantime, functioning of the shop shall not be disturbed in any manner.10. it is made clear that the grant of licence pursuant to this judgment will not be to the prejudice of the case of either the petitioner or the panchayat in case the shop in question needs to be shifted consequent on any order that may be passed by the excise commissioner.writ petition is disposed of as above.