Panchayat:Repo18/Law Manual Page0310

In Meenachil Hotels & Resorts Pvt. Ltd. v. State of Kerala and Others, the petitioner filed an application before the municipality seeking an NOC to be placed before the Excise Officials to obtain an FL-11 licence. To that, the Municipality replied that application has been placed before Municipal Council, which would take a decision in the due course. Such communication cannot mean that Municipality has rejected or passed orders on the application. Since no order was passed rejecting or allowing the application, within the statutory period, petitioner is entitled to the benefit of deemed licence - 2015 (5) KHC 822: 2016 (2) KLT 327 : 2016 (2) KLJ 567.

In Roy V. M. v. Avavana Grama Panchavat. Ernakulam and Others, an application for quarry licence was rejected citing adverse decision of Panchayat Sub-Committee. Herein it was held that SubCommittee is an extra legal outfit of the Grama Panchayat insofar as the discharge of duties under S.232 is concerned. It is an interference on the independent exercise of power by the Secretary. Any interference by a person or body extraneous to the power would plainly be contrary to the nature of the power conferred upon the Authority. Hence, order of rejection is set aside and Secretary is directed to consider the issue afresh without reference to any further instructions or directions from any other official of Grama Panchayat. Any arrangement by which a power conferred upon one Authority is in substance exercised by another, then the effect is that the discretion conferred by Parliament, is exercised at least in part, by the wrong authority, and therefore, the resulting decision is ultra vires and void. - Roy V. M. v. Ayavana Grama Panchayat, Ernakulam and Others - 2015 (3) KHC 445 : 2015 (2) KLT 702 : AIR 2015 NOC 725.

A reading of sub-S.2 of 5.232 makes it clear that the said provision has enacted a prohibition against establishing an Abkari shop within a Village Panchayat area. The expression "Abkari Shop", as per the explanation includes a Bar attached Hotel also. Therefore, sub-S.2 of S.232 makes it clear that a person desirous of establishing an Abkari shop or a Bar Hotel as in this case, could do so only with the prior permission of the Village Panchayat. The said provision does not place any restriction on the power of the Panchayat to grant permission. Nor does it restrict the power of the Panchayat to grant or refuse permission, in any manner. However, sub-S.3 places a restriction on the power of the Panchayat to grant permission by prescribing that, where the Abkari shop is near an educational institution or place of worship, the distance prescribed in the Abkari Act shall be complied with. Sub-S.4 which is a power either to shift or close down an Abkari shop has been confined only to the grounds mentioned therein, namely in the interests of public peace or morality or on the grounds of convenience or nuisance. The resultant position therefore is that, while exercising the discretion conferred on the Panchayat under sub-S.2 of S.232, there is no restriction on the power of the Panchayat disentitling it from considering all the relevant factors necessary for the purpose of deciding whether to grant or refuse the permission. - Salih Kodappana v. State of Kerala and Others – 2014 (4) KHC 688: 2014 (4) KLT 785 : ILR 2015 (1) Ker. 143.

Secretary has the power to suspend or revoke a licence. There are three grounds upon which such power could be invoked. The power of suspension or revocation specifically provided thereunder is relating a licence/permit granted under the Kerala Panchayat Raj Act or any rule made thereunder. The three grounds or circumstances upon which such power could be invoked, at any time, by the Secretary of the Panchayat concerned is evident from the said Section itself. They are: (1) If any of the restrictions, limitations or conditions in the licence or permission is evaded or infringed by the grantee (2) If the grantee is convicted of a breach of the provisions of the Act or of any rules made thereunder in any matter to which such licence or permission relates (3) If the grantee has obtained the same by misrepresentation or fraud. The words 'in the licence or permission', 'by the grantee' employed in the first ground and the words 'the grantee', 'such licence or permission' employed in the second ground and the words 'the grantee', 'obtained the same' employed in the third ground would undoubtedly reveal that the power is exercisable by the Secretary in respect of any licence or permission granted under the Act or any rule made under it. Power under S.236(9) can be exercised suo motu in appropriate circumstances subject to the satisfaction of the situations envisaged in the Section. Though not a statutory remedy, a party who is aggrieved by the accrual of a right of deemed licence under S.236(9) could seek for invocation of the power vested with the Secretary by filing of an application and trigger the exercise of such power by the Secretary. Also, the aggrieved party can file an appeal before the Committee under S.276 of the Act. Decision of the Committee can further be challenged before the Tribunal for Local Self Government Institutions. – Babu P. V. v. Thanneermukkam Grama Panchayath, Cherthala and Others – 2014 (4) KHC 174 : 2014 (4) KLJ 339 : 2014 (4) KLT 408.

In Mallappally Grama Panchayath, Pathanamthitta v. Zeenath Beevi and Another, the respondent was carrying on the business without licence from the Panchayat on which the Panchayat imposed penalty. On appeal, the Tribunal for LSGI held that Panchayat has no power to impose penalty. The issue that arose here was that whether the decision of the Tribunal was proper. Herein it was held that

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