Abdul Salam v. Koodali Grama Panchayat and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **FRIDAY, THE 14TH DAY OF AUGUST 2020 / 23RD SRAVANA, 1942** ## **WP(C).No.16090 OF 2020(I)** ## **PETITIONER:** **ABDUL SALAM, AGED 50 YEARS, S/O.MAMMU, PATTANNUR, KOLAPPA P.O., IRIKKUR, KANNUR-670593.** **BY ADVS. SRI.ABDUL RAOOF PALLIPATH SRI.K.R.AVINASH (KUNNATH)** ## **RESPONDENTS:** - **1 KOODALI GRAMA PANCHAYATH KOODALI, KANNUR-670602, REPRESENTED BY ITS SECRETARY.** - **2 THE SECRETARY, KOODALI GRAMA PANCHAYAT, KOODALI, KANNUR-670602.** - **3 MOTTAMMAL PUTHIYAPURAYIL ABDUL SAMEER, AGED 53 YEARS, S/O.KAMAL, SHAMIS, PATTANNUR P.O., IRIKKUR, KANNUR-670602.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## ALEXANDER THOMAS, J. --------------------------------------W.P. © No. 16090 of 2020 --------------------------------------Dated this the 14[th] day of August, 2020 ## J U D G M E N T The case set up in this Writ Petition (civil) is as follows: “ _The petitioner who is a tenant of the 3[rd] respondent is running business in provisional item within the limit of the 1[st] respondent for the last more than 13 years by obtaining license. The petitioner used to renew the license by filing application and remitting the fee every year. While so, the 3[rd] respondent filed petition for eviction against the petitioner alleging bonafide need as RCP 127/2018 and the same was allowed by the court. Challenging the eviction order, the petitioner filed RCA No.57/2019 and obtained stay as per the order in IA 630/2019. The 3[rd] respondent has been trying to throw out the petitioner by hooks and crooks. Accordingly he had influenced the 2[nd] respondent and other officials and false complaint was filed against the petitioner alleging that he has been selling tobacco products without license. Hence the petitioner was issued with a show cause notice dated 4.7.2019 stating that since tobacco products have been seized from his building and as he failed to renew the license he has to show cause within 15 days for not initiating prosecution against him. The petitioner has filed a detailed reply to the said notice through his lawyer. But no hearing was_ W.P. © No. 16090/2020 ..3.. _conducted so far. However, the 2[nd] respondent issued a notice dated 29.7.2020 all of a sudden and handed over to the petitioner on 30.7.2020 evening stating that he has to close the business within 24 hours. The petitioner was under the impression that since the next three days are holidays for the panchayat, no steps will be taken to close down the business. But as a total surprise to the petitioner, the 2[nd] respondent has come to his shop premises on 1.8.2020 with officials and forcefully closed down the business of the petitioner in total disregard of law and the procedure established under law. The petitioner is running a grocery shop wherein he sells food products including vegetables, frozen items and ice creams stored in freezer which are highly perishable. If the business is closed down in such a fashion for a long time the entire products will be damaged and he will be put to great hardship and trouble which cannot be otherwise compensated. It is submitted that the action of the 1[st] and 2[nd] respondents in closing down the business by giving a short notice of 24 hours and closing it on a holiday without giving a breathing time and without conducting a hearing on the reply given to the show cause notice is purely illegal, arbitrary and liable to be interdicted with.”_ It is in the light of the W.P. © No. 16090/2020 ..4.. abovesaid averments and contentions that the petitioner has filed the instant Writ Petition (Civil) with the following prayers: “ - _i. declare that the action taken by the 1[st] and 2[nd] respondent pursuant to Ext.P11 notice to close down the business of the petitioner by giving 24 hours time and closing down the business on a holiday without giving a breathing time to remove the perishable food items and without affording an opportunity of hearing is illegal, arbitrary_ - _ii. issue a writ of certiorari or any other writ or order quashing Ext.P11 notice as illegal by calling to the records relating to issuance of the same._ - _iii. issue a writ of mandamus or such other writ or order directing the 1[st] respondent to renew the license issued tot he petitioner as per Exhibit P9 application within such time which this court may deem fit to grant._ - _iv. issue a writ of mandamus or such other writ or order directing the 1[st] respondent to permit the petitioner to run the business till such time the petitioner is heard on the show cause notice issued to him and thereafter for a reasonable time for challenging the same or removing the perishable goods stored in his business premises._ - _v. grant such other reliefs as this Hon'ble Court may deem fit and proper as on the facts and circumstances of the case.”_ 2. Heard Sri.P.Abdul Raof, learned counsel appearing for the petitioner. In the nature of the order proposed to be passed in this petition, notice to all the respondents will stand dispensed with. 3. The case of the petitioner is that, he had earlier obtained Trade/D & O License from the 2[nd] respondent Secretary of Grama Panchayat, in accordance with the provisions contained in the W.P. © No. 16090/2020 ..5.. Kerala Panchayat Raj Act and the Rules framed there under, to conduct a provision shop in the building premises owned and let out by the 3[rd] respondent. Further that, now there are landlord and tenant disputes between the 3[rd] respondent and the petitioner as can be seen from Ext.P-5 rent control proceedings initiated by the 3[rd] respondent, in which the petitioner has now obtained Ext.P-6 stay by the Rent Appellate Court. That, the petitioner has later filed Ext.P-9 application dated 27.5.2020 for renewal of trade license for the year 2020-2021 before the 2[nd] respondent. That, the 3[rd] respondent land lord has been opposing the renewal of trade license in favour of the petitioner. It is well settled by a series of rulings of this Court and the Apex Court in the decisions as in _**Sudhakaran v. Corporation of Trivandrum [(2016) 14 SCC 263]**_ as well as the judgment of the Division Bench of this Court in the case as in _**Marimuthu v. D.G.P. [1999 (3) KLT 62]**_ that the consent of landlord for getting trade license and to conduct trade by the tenant in the premises owned by the landlord is necessary only at the time of consideration of original grant of trade license and that such consent of land lord is not required at the time of renewal of trade license. Further that, now a false case has been initiated against the W.P. © No. 16090/2020 ..6.. petitioner which led to the registration of Crime No. 367/2019 of Mattannur Police Station which has been registered for offences punishable under Section 118(i) of the Kerala Police Act, on the allegation that 35 packet hans and 7 packet of cool lip was found in the petitioner’s provision shop, and that the offence as per Section 118(i) is an bailable offence, and the petitioner has already obtained bail in the case. On account of the influence exerted by the 3[rd] respondent on respondents 1 & 2, the 2[nd] respondent has earlier issued Ext.P-7 notice dated 4.7.2019 directing the petitioner to show cause as to why prosecution steps should not be taken against the petitioner on account of his involvement as an accused in the abovesaid crime. The petitioner has submitted Ext.P-8 reply dated 10.7.2019 thereto stating that the abovesaid allegations are false and that merely because a party like the petitioner is made to face such criminal proceedings on account of the crime registered by te police, there is no ground for respondents 1 & 2 to initiate any separate prosecution proceedings. Further that, now without affording any reasonable opportunity of being heard to the petitioner, the impugned Ext.P-11 order dated 29.7.2020 has been issued by the 2[nd] respondent Secretary of the Grama Panchayat stating that the W.P. © No. 16090/2020 ..7.. petitioner has to immediately close down the shop within 24 hours as he has been involved as an accused in the abovesaid crime, and that the petitioner is not now having any valid trade license. It is stated by the petitioner that till date the 2[nd] respondent has not communicated any decision to the petitioner that Ext.P-9 application has been rejected by him, and that since Ext.P-9 application has been received by the respondent on 19.6.2020, the petitioner has secured the benefit of deemed grant of license in vie of the mandatory provisions contained in Section 236(3) of the Kerala Panchayat Raj Act. Further that, if a opportunity of hearing had being granted to the petitioner, he could have been easily convinced the 2[nd] respondent that an adverse order in the nature of Ext.P-11 directing the petitioner to close down his shop, would not have been issued merely on the ground that the petitioner has been involved in an offence, and more so particularly since the offence is bailable etc. 4. From a reading of the pleadings and materials on record it is seen that, the petitioner had not been afforded a reasonable opportunity of being heard by the 2[nd] respondent before an adverse order in the nature of Ext.P-11 had been rendered. It is elementary that if an adverse order in the nature of Ext.P-11, whereby the shop W.P. © No. 16090/2020 ..8.. keeper is directed to close down his shop, the same would involve very serious consequences on the affected person, and hence such an adverse decision would have been taken by the decision maker only after reasonable opportunity of being heard was granted to the affected person. A reading of the pleadings and materials on record would show that Ext.P-7 notice dated 4.7.2019 had been issued by the 2[nd] respondent only directing the petitioner to show cause as to why separate prosecution me3asures by the 2[nd] respondent on account of the petitioner's involvement in an offence as accused in the aforementioned crime. The petitioner would contend that there are no provisions in the Kerala Panchayat Raj Act and the Rules framed there under which would empower the 2[nd] respondent to initiate any separate criminal prosecution merely on account of the fact that the trade licensee has been involved in an offence as accused on account of the crime registered by the police, and in such cases it is for the party concerned to face criminal proceedings initiated by the police, and mere registration of crime cannot be a ground to enable the respondent Panchayat to initiate separate prosecution in that regard, and further that at any rate the respondent Panchayat cannot direct the petitioner to close his shop W.P. © No. 16090/2020 ..9.. merely because he is involved as accused in an offence. 5. This Court need not examine these issues now, and it is for the petitioner to urge these aspects before the 2[nd] respondent for consideration. However it is to be noted that in Ext.P-7 the petitioner has not been directed to show cause as to why the 2[nd] respondent shall not pass orders to direct the petitioner to close down the shop merely because of his involvement as an accused in the above mentioned crime. Moreover, since no opportunity of being heard has been granted to the petitioner before passing an adverse orders in the nature of Ext.P-11, it is only to be held that the decision making process in that regard is tainted by illegality and impropriety and the same would be initiated mainly on account of blatant violation of elementary principles of natural justice and fairness. Hence,the matter would require serious reconsideration at the hands of the 2[nd] respondent and would warrant a remit. 6. For effectuating such a remit it is ordered that the impugned Ext.P-11 order dated 29.7.2020 issued by the 2[nd] respondent will stand quashed and set aside and the matter in relation thereto will stand remitted to the 2[nd] respondent Secretary of Grama Panchayat for consideration and decision afresh W.P. © No. 16090/2020 ..10.. untrammeled and uninfluenced in any manner by the stand taken in Ext.P-11, which has already been quashed. 7. The 2[nd] respondent Secretary of the Grama Panchayt will afford reasonable opportunity of being heard to the petitioner through his authorized representative/counsel if any, and should also take up consideration the matters in Ext.P-9 application for renewal of trade license and should consider the contentions of the petitioner that he is already entitled for the benefit of grant of deemed license as aforestated, and also the contentions of the petitioner that the consent of landlord is not required for renewal of trade license in view of the afore cited judgments, and also should consider the petitioner’s contentions that the 2[nd] respondent cannot lawfully direct the closure of shop merely on account of involvement of the shopkeeper as accused in an offence and then should pass orders on all aspects of the matter including the request of the petitioner for renewal of trade license as made out in Ext.P-9 without much delay preferably within a period of 3 weeks from the date of production of a certified copy of this judgment. 8. In that regard, separate order should be passed on Ext.P-9 application for renewal of trade license and separate order W.P. © No. 16090/2020 ..11.. should be passed on the other issue relating to maters in Ext.P-11 within the said time limit. Since the impugned order has been quashed, needless to say the petitioner can function his shop until orders are passed by the 2[nd] respondent as afore directed. However, the petitioner should function his shop strictly in accordance with the terms and conditions of the trade license issued to him. 9. The petitioner will producer certified copy of this judgment along with copy of memorandum of this WP© with all exhibits before the 2[nd] respondent for necessary information and further action. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG W.P. © No. 16090/2020 ..12.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LEASE AGREEMENT DATED 9.8.2006.** **EXHIBIT P2 TRUE COPY OF THE CONSENT OF THE PETITIONER.** **EXHIBIT P3 TRUE COPY OF THE RECEIPT ISSUED TO THE PETITIONER DATED 22.2.2019.** **EXHIBIT P4 TRUE COPY OF THE RECEIPT ISSUED TO THE PETITIONER FOR PAYMENT OF LICENSE FEE FOR THE 2019-2020.** **EXHIBIT P5 TRUE COPY OF THE ORDER IN RCP 127/2018 DATED 27.2.2019 OF THE RENT CONTROL MUNSIFF (PRINCIPAL MUNSIFF) COURT, KANNUR.** **EXHIBIT P6 TRUE COPY OF THE ORDER IN IA 630/19 IN RCA 57/19 DATED 20.12.2019 OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT COURT), THALASSERY.** **EXHIBIT P7 TRUE COPY OF THE NOTICE DATED 4.7.2019 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P8 TRUE COPY OF THE REPLY NOTICE DATED 10.7.19.** **EXHIBIT P9 TRUE COPY OF THE APPLICATION FOR RENEWAL OF LICENSE FOR THE YEAR 2020-2021.** **EXHIBIT P10 TRUE COPY OF THE ACKNOWLEDGEMENT DATED 19.6.2020.** **EXHIBIT P11 TRUE COPY OF THE NOTICE DATED 29.7.2020 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P12 TRUE COPY OF THE WHATSAPP POST.**