Muhsin T.P. v. District Collector, Malappuram & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 20TH DAY OF JUNE 2019 / 30TH JYAISHTA, 1941** ## **WP(C).No.20551 of 2018** ## **PETITIONER/S:** **MUHSIN T.P., S/O. MUHAMMEDALI, AGED 31, THOOMBATH PUTHANPURAYIL HOUSE, PARAPPUR, KOTTAKKAL, MALAPPURAM DISTRICT - 676 503.** **BY ADV. SRI.E.C.AHAMED FAZIL** ## **RESPONDENT/S:** - **1 THE DISTRICT COLLECTOR, MALAPPURAM, CIVIL STATION, MALAPPURAM, MALAPPURAM DISTRICT - 676 505.** - **2 THE DISTRICT PROJECT MANAGER, MALAPPURAM, AKSHAYA DISTRICT PROJECT OFFICE AND STATE FIELD OFFICE, MALAPPURAM DISTRICT PANCHAYATH BHAVAN, CIVIL STATION, MALAPPURAM - 676 505.** - **3 PARAPPUR GRAMA PANCHAYATH, PARAPPUR GRAMA PANCHAYATH OFFICE, PARAPPUR P.O., KOTTAKKAL, MALAPPURAM DISTRICT - 676 503 REPRESENTED BY ITS SECRETARY.** - **4 THE DIRECTOR, KERALA STATE IT MISSION, DEPARTMENT OF INFORMATION TECHNOLOGY, THIRUVANANTHAPURAM - 695 001.** - **5 THE STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF INFORMATION TECHNOLOGY, THIRUVANANTHAPURAM - 695 001.** **BY ADVS.** - **R1, R2 & R5 - SMT. RASHMI K.M., GOVERNMENT PLEADER R3 - SRI.J.R.PREM NAVAZ SRI.P.T.SHEEJISH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.20551 of 2018 2 ## **JUDGMENT** This writ petition is filed by the petitioner seeking to quash Ext.P1 enquiry report submitted by the committee appointed by the 3[rd] respondent, i.e., the Parappur Grama Panchayat, and Ext.P6 order passed by the District Collector dated 22.05.2018, cancelling the Akshaya Centre allotted to the petitioner. Brief material facts for the disposal of the writ petition are as follows: 2. According to the petitioner, on the basis of certain frivolous complaints, the 3[rd] respondent Panchayat had constituted an enquiry committee against the conduct of Akshaya Centre by the petitioner. The said enquiry committee, without hearing the petitioner as well as without serving notice to him, recommended to take steps to terminate petitioner's licence. It is further submitted that, Ext.P1 report is prepared contrary to Clause F(ii) of the entrepreneurship agreement. Earlier, the District Collector has passed an order terminating petitioner's licence, which was challenged by the petitioner before this Court, and accordingly, Ext.P2 judgment was rendered quashing the proceedings of the District Collector, and directing to re-consider the matter after providing an opportunity W.P.(C) No.20551 of 2018 3 of participation and hearing, and attain finality within two months from 20.02.2018, on which date, petitioner was directed to appear before the District Collector. On the basis of Ext.P2 judgment, petitioner appeared before the 1[st] respondent and filed Ext.P3 reply, Ext.P4 application to examine witnesses and Ext.P5 argument notes, however, the 1[st] respondent has passed Ext.P6 non-speaking order, is the paramount contention advanced by the petitioner. It is thus seeking to secure the reliefs specified above, this writ petition is filed. 3. The 2[nd] respondent, i.e., the District Project Manager, Akshaya District Project Office, Malappuram has filed a detailed counter affidavit, refuting the allegations and claims and demands raised by the petitioner. According to the 2[nd] respondent, the cancellation of licence of the Akshaya Centre was made due to the reason that the licence of the Akshaya Centre granted to the petitioner has expired and the petitioner has not applied for renewal within the stipulated time as per the terms of the agreement. The failure on the part of the petitioner in submitting the application for renewal is violation of the agreement conditions C(i) and C(iv), whereby it is W.P.(C) No.20551 of 2018 4 prescribed that the agreement shall be valid for three years and can be renewed as per the norms laid by Akshaya on triennial basis, and if the Akshaya Centre Entrepreneur is not submitting the renewal request within three months as per the norms of agreement, the Akshaya e-Kendra automatically gets cancelled and the entrepreneur shall get blacklisted for further allocation, and cannot be considered for that Akshaya selection process. 4. That apart, it is submitted that, petitioner had not attended any of the training programmes conducted for Akshaya Entrepreneurs for three years, which is in violation of Clause 6(v) of the agreement conditions, by which, it is categorically stated that the entrepreneur shall attend the meetings/trainings organized by Akshaya. It is also submitted that, three other Akshaya Centres were also cancelled for the very same reason, and the stand adopted by the respondents in the matter of cancellation is fully justified. Copy of the agreement is produced as Ext.R2(a). That apart, it is pointed out that, the copy of the accounts report submitted by the petitioner pertains to the month of February and March, 2018, after the closure order dated 01.01.2018, initially issued. However, the submitted W.P.(C) No.20551 of 2018 5 accounts report belongs to another Akshaya Centre, and that apart, extra charges were levied from the customers in violation of the approved charges. The account statement is produced as Ext.R2(b). 5. It is further stated, in the application form submitted by the petitioner, produced as Ext.R2(c), the Code number of Kadampuzha Akshaya Centre which was found stricken off, and the code number of Vengara Parappoor Akshaya Centre is entered, and the name of the applicant is absent in the application form. However, the contact number provided is belonging to one Yousuf Mash, who is a teacher of Parappur Higher Secondary School and also husband of Sajna Alukkal, who is the Kadampuzha Akshaya Entrepreneur. The application form for renewal of Akshaya Centre was submitted only after the expiry of 10 months, overlooking the requirement of three months period under the agreement. Moreover, the application was found to be from a _benami_ person. It was taking into account all these aspects, Ext.P6 order was issued to terminate the licence of the petitioner. It is also submitted that, due to the interim order passed by this Court, serious prejudice is caused to the people of the locality. W.P.(C) No.20551 of 2018 6 6. A reply affidavit is filed by the petitioner, reiterating the stand adopted in the writ petition and also producing a Government letter dated 05.02.2018, wherein, directions are issued to cancel the Akshaya licences of the entrepreneurs who have not taken care of to renew the licences by paying the fine of Rs.250/p.m. and a maximum of Rs.750/-. Therefore, according to the petitioner, as per the Government letter also, petitioner was entitled to get the licence of the Akshaya Centre renewed. 7. The 3[rd] respondent Panchayat has also filed a counter affidavit almost in similar lines as that of the counter affidavit filed by the 2[nd] respondent. Apart from other contentions, it is stated that, the Panchayat has constituted a committee and a detailed report has been submitted finding the petitioner guilty of violation of Clause F(i) of Ext.R2(a) agreement, and it was thereupon that recommendation was made and petitioner was provided with sufficient opportunity by the District Collector and has passed the impugned order. 8. I have heard learned counsel for the petitioner, learned Government Pleader as well as the learned counsel appearing for 3[rd] respondent Panchayat, W.P.(C) No.20551 of 2018 7 and perused the pleadings and the documents on record. 9. According to the petitioner, Ext.P6 order is passed by the District Collector without taking into account the arguments advanced by the petitioner and overlooking the contentions raised in Ext.P5 argument notes. In Ext.P6, the District Collector has stated that on the basis of the directions issued by this Court in Ext.P2 judgment, a hearing was conducted and found that the agreement conditions are violated by the petitioner. Therefore, in spite of other infirmities that were faced by the petitioner, the District Collector while conducting the hearing, has taken into account only the failure on the part of the petitioner to renew the licence of the Akshaya Centre in accordance with Ext.R2(a) agreement. 10. As pointed out earlier, as per Ext.R2(a), an application for renewal shall be submitted within three months after the expiry of the agreement period. It is an admitted fact that petitioner has not submitted any application within the said period. It is also an admitted fact that petitioner has submitted an application viz., Ext.R2(c) ten months after the expiry of the agreement period. However, on verification of the said application, it was found that the application W.P.(C) No.20551 of 2018 8 is submitted by an entrepreneur of Kadampuzha Akshaya Centre and the said application form is not even containing the name of the petitioner, even though a mobile number is provided in the application, however, on verification, the mobile number was found to be that of the husband of the entrepreneur of Kadampuzha Akshaya Centre. Therefore, even after 10 months period, there is no application submitted by the petitioner for renewing the licence. Taking into account the pleadings put forth by the petitioner and respondents 1 to 3, one thing is clear, petitioner is not the applicant for renewing the licence of the Akshaya Centre, and it gives a clear indication also that petitioner was not running the Akshaya Centre, as per the licence secured by the petitioner. 11. Even though petitioner has relied upon Ext.P7 Government letter dated 05.02.2018, produced along with the reply affidavit, it is categoric and clear, by that letter, the Government issued directions to the Director of Akshaya Centre to ensure that all the Akshaya Centre Entrepreneurs who have not renewed licence by remitting fine shall be cancelled with immediate effect. That notification also will not come to the rescue and help of the petitioner, since W.P.(C) No.20551 of 2018 9 petitioner has no case that he made any application to renew the licence in accordance with the Government letter to regularize the licence after accepting fine from the entrepreneur. Moreover, when there is a clear agreement executed, petitioner is bound by the terms and conditions of the agreement. Petitioner has no case that petitioner has adhered to the terms and conditions of the agreement for renewing the licence. Even though petitioner has a contention that in the enquiry conducted by the Panchayat, by constituting a committee, no opportunity was provided to the petitioner, the issue is guided by Clause F of the agreement, which reads thus: ## _“_ _**F. TERMINATION OF AKSHAYA ACE** ._ _i. On violation of any conditions of the Agreement or of further orders of the Government or doing any malpractice or due to poor physical performance, the AKSHAYA shall have right to suspend the operations of the Akshaya ACE pending local body resolution._ _ii. The local body resolution may recommend termination based on the serious violations of agreement conditions, malpractice by ACE, poor physical performance and acting against public interest. However, this recommendation may be done only after due enquiry and after giving opportunity of being heard to the ACE after due notice._ _iii. The District Collector shall terminate the ACE agreement based on the local body resolution._ W.P.(C) No.20551 of 2018 10 _iv. If found guilty of violation on enquiry as per clause F(i), the agreement stands terminated and that Akshaya E-Kendra shall be declared vacant and the process of new selection of ACE shall take place by the AKSHAYA._ _v. The appellate authority shall be Director, Kerala State IT Mission and appeal shall be submitted to the appellate authority within 30 days of termination.”_ 12. Therefore, the stipulations thereunder form part of the agreement and petitioner is bound by the said terms and conditions thereunder. So also, on an appreciation of the said provisions, it is clear, it only contemplates a preliminary enquiry so as to appraise the District Collector the factual situations. Petitioner has no case that before passing the impugned order, petitioner is not provided with an opportunity of hearing and participation. That apart, the agreement was executed for a period of three years, and it is evident from the covenants that the rigour of the terms and conditions will apply only during the tenure of agreement, and therefore, petitioner is not at liberty to harp and depend too much on the agreement. Added to all these aspects, it is clear from the counter affidavits, petitioner had not attended any of the training programmes in terms of the agreement. Akshaya Centres are opened up by the Government for serving the public, and unless and until the licensees W.P.(C) No.20551 of 2018 11 are functioning with integrity, efficiency, honesty and discipline, the intention of the Government will be put to jeopardy, and people will loose confidence to depend such Centres, upsetting the whole fabric of the institution as such. 13. Evaluating all these aspects, I am of the considered opinion that, petitioner has not made out any case, justifying interference of this Court exercising the power of judicial review under Article 226 of the Constitution of India. The writ petition fails, and accordingly it is dismissed. ## **Sd/-** ## **SHAJI P.CHALY** St/21.06.2019 **JUDGE** W.P.(C) No.20551 of 2018 12 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT-P1 TRUE COPY OF THE REPORT OF THE ENQUIRY COMMITTEE CONSTITUTED BY PARAPPUR GRAMA PANCHAYATH TO ENQUIRE CONDUCT OF AKSHAYA CENTRE.** **EXHIBIT-P1(A) TRUE COPY OF THE RELEVANT EXTRACT OF THE ENTREPRENEURSHIP AGREEMENT.** **EXHIBIT-P2 TRUE COPY OF THE JUDGMENT IN W.P(C) 2140/2018D DATED 30/01/2018 PASSED BY THE HON'BLE HIGH COURT OF KERALA. EXHIBIT-P3 TRUE COPY OF THE REPLY/WRITTEN STATEMENT DATED 15/03/2018 SUBMITTED BY THE PETITIONER BEFORE DISTRICT E-GOVERNANCE SOCIETY/COMMITTEE, MALAPPURAM. EXHIBIT-P4 TRUE COPY OF THE APPLICATION TO EXAMINE ENQUIRY COMMITTEE MEMBERS AND COMPLAINANTS DATED 15/03/2018 SUBMITTED BY PETITIONER BEFORE DISTRICT E-GOVERNANCE SOCIETY/COMMITTEE, MALAPPURAM. EXHIBIT-P5 TRUE COPY OF THE ARGUMENT NOTES DATED 23/04/2018 SUBMITTED BY PETITIONER BEFORE DISTRICT E-GOVERNANCE SOCIETY/COMMITTEE, MALAPPURAM. EXHIBIT-P6 TRUE COPY OF THE ORDER NO. 011/AKS/MPM/2018 DATED 22/05/2018 PASSED BY THE DISTRICT COLLECTOR, MALAPPURAM. EXHIBIT-P7 TRUE COPY OF THE COMMUNICATION NO.ITC2/58/2017/VSV DATED 05.02.2018 ISSUED BY SECRETARY, DEPARTMENT OF INFORMATION AND TECHNOLOGY, THIRUVANANTHAPURAM.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R2(A) TRUE COPY OF THE AGREEMENT ENTERED BETWEEN THE DISTRICT COLLECTOR AND THE PETITIONER. EXHIBIT R2(B) TRUE COPY OF THE ACCOUNT STATEMENT. EXHIBIT R2(C) TRUE COPY OF THE APPLICATION.** |W.P.(C) No.20551 of 2018|13| |---|---| |**EXHIBIT R3(A)**|**THE TRUE COPY OF THE APPLICATION FILED BY**| ||**THE PETITIONER FOR RENEWAL DATED**| ||**25.10.2017.**| |**EXHIBIT R3(B)**|**THE TRUE COPY OF THE REPORT FILED BY THE**| ||**MEMBER SECRETARY DEGS DATED 02.11.2017**| //TRUE COPY// P.S. TO JUDGE St/-