IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 4989 of 2008(R)
1. SIVADAS P.K., PALARA HOUSE
... Petitioner
Vs
1. THE DISTRICT MAGISTRATE, KOTTAYAM.
... Respondent
2. KADANAD GRAMA PANCHAYAT, KADANAD P.O.
3. THE SECRETARY, KADANAD GRAMA PANCHAYAT
For Petitioner :SRI.PHILIP T.VARGHESE
For Respondent : No Appearance
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :15/02/2008
O R D E R
PIUS C.KURIAKOSE, J.
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W.P.(C) No. 4989 of 2008
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Dated, this the 15th day of February, 2008
J U D G M E N T
Under challenge in this writ petition is Ext.P4 order of the
District Magistrate, which was passed pursuant to directions of this
Court in writ petition No.25282/07. Also under challenge is Ext.P5
consequential order passed by the Panchayat canceling the licence
which had been given to the petitioner by the Panchayat for
conducting hotel in the room in question.
2. The issue before the District Magistrate was whether it
was from the room in possession of the petitioner, that the
contraband liquor was seized. The petitioner’s case was that it was
not from that room the liquor was seized. According to him, seizure
was from the room in possession of one Mr.Joy Joseph. To
substantiate his contention, the petitioner relied on an agreement
purporting to have been executed between Mr.Joy Joseph and Mr.
Muraleedharan, the owner of the building. The District Magistrate
found on the basis of the investigation conducted by the excise
department that the agreement put in evidence by the petitioner
was a bogus one. The District Magistrate has also found that the
track record of the petitioner was not quite good and seven cases
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have been registered against him and that he was convicted in one
case, while offence in four cases were compounded. Ultimately in
Ext.P4, the District Magistrate has found that the petitioner has
violated the conditions of the licence given to him since he has
collected and sold liquor from the room in which licence was given
by the Panchayat only for conducting hotel/tea shop. The District
Magistrate, accordingly, disposed of the matter observing that the
Panchayat Secretary can cancel the licence issued in favour of the
petitioner and the land lord can be directed to rent out the room
afresh.
3. Shri. K.J.Mohammed Anzar, learned Government Pleader
submits that it is open to the Panchayat Secretary to have an
independent decision since the District Magistrate has only said that
the Panchayat Secretary is free to cancel the licence. Several
grounds have been raised in this writ petition and Shri.Philip
T.Varghese, learned counsel for the petitioner has addressed very
extensively on those grounds. My attention was drawn by
Shri.Philip T.Varghese to ground No. K, wherein it is stated that the
finding of the District Magistrate regarding the track record of the
petitioner is wrong, and that he was convicted only in two petty
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cases which had nothing to do with liquor storage or sale of liquor.
It cannot be said that that the submissions of learned counsel are
totally unattractive. I also find that the finding of the District
Magistrate that liquor was sold from the room in possession of the
petitioner is contrary to the reports submitted by the Secretary of
the Panchayat. Going by the assessment records maintained by the
Panchayat, only one room number has been assigned for the entire
building having as many as seven rooms. The Panchayat Secretary
in his report has reported that seven different businesses including
the petitioner’s business are being carried out in these rooms. This,
according to me, gives some support to the petitioner’s case that he
is not in possession of only one room. May be it is true that the
agreement which was put in evidence by the petitioner was not a
genuine one. But important question is whether the petitioner had
any possessory control over the room wherefrom the liquor was
seized, which according to the Panchayat Secretary’s report is the
room where Shri.Mujeeb is conducting furniture / upholstery
business. Under these circumstances, the last submission of
Shri.Philip T.Varghese that the petitioner proposes to close down his
tea shop by 31/03/2008 and that he be permitted to continue to
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run the tea shop in accordance with law till then, has some appeal.
Whatever that be, since disputed questions of fact are likely to arise
in this case, I am of the view that this Court should not invoke the
powers conferred under Article 226 of the Constitution of India to
enquire into the dispute. I relegate the petitioner to his remedy
before the Tribunal for Local Self Government Institutions. Since
Ext.P5 has been issued on the basis of resolution of the Committee,
petitioner is permitted to conduct the hotel business
notwithstanding Ext.P5 till 31/03/2008. Further conduct of the
business will be on the basis of the decision, which will be taken by
the Tribunal in the prospective appeal.
This writ petition is disposed of as above.
(PIUS C.KURIAKOSE, JUDGE)
jg