Petitioner ran a licensed toddy shop. Panchayat prohibited operations citing need for D&O license. Court held no notification was issued under Section 232 and license was not mandatory. Prohibition notice quashed.
Exhibit P2 (notice prohibiting operation) set aside. Petitioner entitled to continue business subject to future notifications.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:-
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
TUESDAY, THE 7TH DAY OF JUNE 2016/17TH JYAISHTA, 1938 W.P.(C).No.39423 of 2015 (C)
PETITIONER(S):-
KRISHNAN, AGED 42 YEARS, S/O. VELYAUDHAN @ APPUTTY, PAALODIPARAMBU HOUSE, CHELAMBRA P.O., KONDOTTY TALUK, MALAPPURAM DISTRICT.
BY ADVS.SRI.P.VENUGOPAL (1086/92) SMT.T.J.MARIA GORETTI
RESPONDENT(S):-
R1 BY SENIOR GOVERNMENT PLEADER SRI.MANOJ P.KUNJACHAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.39423 of 2015 (C)
APPENDIX
PETITIONER(S)' EXHIBITS:-
EXT.P2:TRUE COPY OF THE NOTICE DTD. 9/12/2015 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.
EXT.P3:TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DTD. 15/12/2015.
RESPONDENT(S)' EXHIBITS:-
NIL.
Vku/[ true copy ]
K. Vinod Chandran, J
-------------------------------------W.P.(C) No.39423 of 2015-C
Dated this the 07th day of June, 2016
JUDGMENT
The petitioner is concerned with the toddy shop
carried on by him as T.S.No.12 (Group-IV) located at Pengad in Cherukavu Grama Panchayat limits as per the Licence No.107/14-15 issued by the 1st respondent. The licence issued by the 1st respondent in favour of the petitioner is produced at Exhibit P1. Despite there being no requirement to have a D&O Licence as provided in the Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996 (Kerala) [for brevity “Rules of 1996”], the Panchayat has prohibited the petitioner's operation as per Exhibit P2. The petitioner relies on two decisions of this Court, reported in Unnikrishnan A.G. v. commissioner of Excise, Thiruvananthapuram & Another [2014 (1) KHC 140] and Poulose P.P. v. Kappur Grama Panchayat, Palakkad and
Others [2015 (2) KLT 165].
WP(C) No.39423 of 2015
and the learned Government Pleader for the 1st respondent. Despite the fact that notice was served by Special Messenger on the Secretary and the Panchayat, the respondents 2 and 3, none appear.
WP(C) No.39423 of 2015
which also includes “Abkari shops -- storing and selling” as item No.139. Further, after such issuance of licence, for the mandate to be applicable under Section 232 of the Panchayat Raj Act, there should also be a further notification by the Panchayat, specifying the areas in which such activity cannot be carried on without licence.
contention is that the Panchayat has not issued any such notification and there would be no requirement for a D&O Licence. A Division Bench of this Court in Unnikrishnan A.G. ( supra ) held that without a notification under section 232 of the Panchayat Raj Act, no insistence can be made that the trade or activity, which comes under the schedule of the Rules of 1996, cannot be carried out without a D & O license. Poulose P.P. ( supra ) also held that statute assigns the duty of notifying the trade to the government and that of the area to the grama panchayat. The mere fact that a trade or activity is included under the rules
WP(C) No.39423 of 2015 - 4 -
framed by the government would not enable the Panchayat to insist on a D& O license for carrying on the trade or activity.
issued by the Panchayat and the Panchayat having not specifically come forward and filed a counter affidavit, refuting the averments made by the petitioner, it has to be found that there is no requirement for a D&O Licence for carrying out the business conducted by the petitioner. Exhibit P2, hence, shall stand set aside. The instant judgment shall not affect any further notification brought out by the Panchayat on this aspect; in which event, then, the petitioner would have to comply with the stipulation.
The writ petition would stand allowed. No costs.
Sd/- K.Vinod Chandran Judge.
vku/-
[ true copy ]
2 issues framed by the court
Whether the Panchayat could prohibit a toddy shop without issuing a notification under Section 232 of the Kerala Panchayat Raj Act, 1994.
Whether D&O license is mandatory for the petitioner's operation in the absence of Panchayat notification.
Colour shows how this judgement treated each authority
Unnikrishnan A.G. v. commissioner of Excise, Thiruvananthapuram & AnotherFollowed¶29
_Unnikrishnan A.G. v. commissioner of Excise, Thiruvananthapuram & Another_ [2014 (1) KHC 140]
Poulose P.P. v. Kappur Grama Panchayat, Palakkad and OthersFollowed¶29
_Poulose P.P. v. Kappur Grama Panchayat, Palakkad and Others_ [2015 (2) KLT 165]
2 provisions across 2 enactments
Krishnan
Deputy Excise Commissioner, Malappuram Excise Division, Malappuram
Secretary, Cherukavu Grama Panchayat, Periyambalam, Pulikkan, P.O., Malappuram District
Cherukavu Grama Panchayat, Periyambalam, Pulikkan, P.O., Malappuram District
K.Vinod Chandran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
