ABDUL RASAK v. KUZHIMANNA GRAMA PANCHAYATH

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 30TH DAY OF JULY 2020 / 8TH SRAVANA, 1942** ## **WP(C).No.14742 OF 2020(P)** ## **PETITIONER:** **ABDUL RASAK, AGED 47 YEARS, S/O. AHAMMEDKUTTY HAJI, RAMLATH MANZIL, KIZHISSERI, KUZHIMANNA AMSOM DESOM, MALAPPURAM DISTRICT.** **BY ADV. SRI.K.RAKESH** ## **RESPONDENTS:** |**1**|**THE KUZHIMANNA GRAMA PANCHAYATH,**| |---|---| ||**REPRESENTED BY ITS SECRETARY, KUZHIMANNA P. O.,**| ||**MALAPPURAM DISTRICT, PIN - 673 641.**| |**2**|**THE SECRETARY**| ||**KUZHIMANNA GRAMA PANCHAYATH,**| ||**MALAPPURAM DISTRICT, PIN - 673 641.**| |**3**|**IBRAHIM KUTTY, AGED 62 YEARS,**| ||**S/O. KOMUKUTTY, KANNARATH VEEDU, KUZHIMANNA,**| ||**KEEZHISSERY,KONDOTTY,MALAPPURAM DISTRICT,PIN-**| ||**673641.**| |**4**|**DEPUTY DIRECTOR OF PANCHAYATH**| ||**CIVIL STATION, MALAPPURAM DISTRICT, PIN - 676 505.**| ||**SRI.VINOD SINGH CHERIYAN, STANDING COUNSEL**| ||**SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## ALEXANDER THOMAS, J. --------------------------------------W.P. © No. 14742 of 2020 --------------------------------------Dated this the 30[th] day of July, 2020 ## J U D G M E N T ## The prayers in this Writ Petition (Civil) are as follows: “ - _i. Call for the original records of Exhibit P3 and quash the same by the issuance of a certiorari or any other appropriate writs, orders of directions;_ - ii. _Issue a writ of mandamus of any other appropriate writs, orders of directions directing the 2[nd] respondent to consider the application for D&O license evidenced by Exhibit P2 receipt without insisting for the consent of the 3[rd] respondent;_ - _iii. Declare that the petitioner is entitled to carry on his business in view of the deeming provisions contained in Section 236(3) of the Kerala Panchayat Raj Act,1994;_ - _iv. Grant such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case.”_ 2. Heard Sri.K.Rakesh, learned counsel appearing for the petitioner, Sri.Vinod Singh Cheriyan, learned Standing Counsel appearing for R-1 & R-2 and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for R-4. In the nature of the order proposed to be passed in this petition, notice to R-3 will stand dispensed with. 3. The case of the petitioner is that, he has taken on rent the premises owned by the 3[rd] respondent and is conducting a jewellery shop in the said shop and he had initially obtained trade/D & O license issued by the 2[nd] respondent Secretary of Grama Panchayat concerned W.P. © No. 14742 of 2020 ..3.. after obtaining consent from the 3[rd] respondent landlord. Thereafter the trade/D & O license was renewed by the 2[nd] respondent from time to time till the year 2017. Thereafter the relationship between the petitioner tenant and the 3[rd] respondent land lord got strained, and the 3[rd] respondent had approached the Rent Control Board by filing Rent Control Petition seeking for eviction of the petitioner in the year 2018, and the 3[rd] respondent has not given the petitioner formal consent for renewal of trade license. Only on that ground that the 2[nd] respondent Secretary has refused to renew trade license for the years 2018 and 2019 even though the petitioner had submitted the requisite applications. The petitioner has also subsequently submitted the application for renewal of trade license for the year 2020-2021 which has been acknowledged by Ext.P-2 receipt issued by the office of the 2[nd] respondent. However, the 2[nd] respondent for reasons not known to the petitioner has refused to pass any orders thereon, and now Ext.P-3 stop memo dated 14.7.2020 has been issued without affording any reasonable opportunity of being heard to the petitioner directing that the petitioner shall stop his business in said shop on the ground that the trade license has not been W.P. © No. 14742 of 2020 ..4.. renewed. The petitioner would challenge Ext.P-3 on two grounds. Firstly that, Ext.P-3 has been rendered without hearing the petitioner, and secondly since no adverse decision has been conveyed to the petitioner by the 2[nd] respondent in regard to the matters in the application submitted by the petitioner for renewal of trade license for the year 2020-2021 as acknowledged in Ext.P-2 receipt issued by the office of the 2[nd] respondent within a period of 3o days, the petitioner has secured the benefit of deemed license in view of the mandatory provisions contained in Section 236(6) of the Kerala Panchayat Raj Act, after the expiry of 30 days time limit from the date of receipt of application referred to in Ext.P-2. 4. It is pointed out that the application for renewal of licences has been received by the 2[nd] respondent on 20.3.2020 as evident from Ext.P-2, and even if the period of lock down from 24.3.2020 upto 24.4.2020 is excluded, then the said period of 30 days would have expired as early as on 20.5.2020 and since no decision has been conveyed to the petitioner by the 2[nd] respondent on or before 20.5.2020, the petitioner has successfully obtained the benefit of deemed license in terms of Section 236(6) of the Kerala Panchayat Raj Act. Further that, Ext.P-3 stop memo dated W.P. © No. 14742 of 2020 ..5.. 14.7.2020 can never be treated as a communication of decision in relation to the application for renewal referred to in Ext.P-2, for the simple reason that Ext.P-3 is a stop memo directing the petitioner to stop the business in view of non renewal of license. Moreover, Ext.P-3 stop memo has been issued much after the expiry of 30 days time limit. Further on merits, the petitioner would submit that it is by now well settled by a series of rulings of the Apex Court as well as this Court, including the one rendered by the Apex Court in the case in _**Sudhakaran v. Corporation of Trivandrum [(2016) 14 SCC 263]**_ as well as the decision of Division Bench of this Court in _**Marimuthu v. D.G.P. [1999 (3) KLT 62]**_ , it is by now well established that the consent of land lord for renewal of trade license by the municipality would come into play only at the time of original grant of license, and such consent is not required at the time of renewal of trade license. The petitioner would place reliance on the dictum laid down in _**Sudhakaran's**_ case supra as well as in _**Marimuthu's**_ case supra, etc. 5. After having heard both sides, since Ext.P-3 adverse decision has been taken behind the back of the petitioner and W.P. © No. 14742 of 2020 ..6.. without affording any reasonable opportunity of being heard to the petitioner, it is only to be held that the same is vitiated for blatant violation of elementary principles of natural justice and fairness, and that the matter would require a remit. For effectuating such a remit it is ordered that, Ext.P-3 order will stand set aside and quashed. Consequently it is ordered that, the application submitted by the petitioner for renewal of trade license for the year 20202021 referred to in Ext.P-2 receipt dated 20.3.2020 will stand remitted to the 2[nd] respondent Secretary of Kuzhimanna Grama Panchayat, for decision in accordance with law and after hearing the petitioner as well as the 3[rd] respondent land lord. 6. The 2[nd] respondent Secretary of Kuzhimanna Grama Panchayat, will afford reasonable opportunity of being heard to the petitioner as well as the 3[rd] respondent and pass orders on the application for renewal of trade license without any further delay at any rate within a period of 2 weeks from the date of receipt of a certified copy of this judgment. While doing so, the 2[nd] respondent will initially consider the contention raised by the petitioner that he is entitled for the benefit of deemed license in view of the mandatory provisions contained in Section 236(6) of the Kerala W.P. © No. 14742 of 2020 ..7.. Panchayat Raj Act and also the alternate contention that the consent of land lord is not required for renewal of trade license and therefore the 2[nd] respondent is bound to renew the trade license in favour of the petitioner, in view of the dictum laid down in the aforecited decisions. 7. The petitioner will produce certified copy of this judgment along with copy of memorandum of this WP(C) with all exhibits and photocopies of aforecited reported judgments before the 2[nd] respondent Secretary of Grama Panchayat, for necessary information and further action. 8. Registry will forward certified copy of this judgment to respondent No.3 at the cost of the petitioner. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG W.P. © No. 14742 of 2020 ..8.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PETITION IN RCP NO.6/2018 FILED BY THE 3RD RESPONDENT BEFORE THE RENT CONTROL COURT, MANJERI DATED 10.4.2018.** **EXHIBIT P2 TRUE COPY OF THE RECEIPT DATED 20.3.2020 ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE STOP MEMO DATED 14.7.2020 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** **EXHIBIT P4 TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 15.7.2020.**