High Court of KeralaSingle JudgeDismissed

Shafeer K.M & Ajmal M.M v. State of Kerala and Others

Case / Petition Number:WP(C).No.18541/2023

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • P. V. Kunhikrishnan
Judgment Date
2023-06-26
Court Decision / Holding
There is no merit in this writ petition and hence it is dismissed.
Final Disposition
Dismissed

Parties to the Case

Appellants / Petitioners

  • SHAFEER K.M
  • AJMAL M.M

Respondents

  • STATE OF KERALA
  • DEPARTMENT OF ELECTRONICS AND INFORMATION TECHNOLOGY, SECRETARIAT, THIRUVANANTHAPURAM
  • THE SECRETARY TO GOVERNMENT, STATE OF KERALA, DEPARTMENT OF ELECTRONICS & INFORMATION TECHNOLOGY, SECRETARIAT, THIRUVANANTHAPURAM
  • THE DIRECTOR, AKSHAYA PROJECT
  • THE DISTRICT COLLECTOR, CIVIL STATION, KASARAGOD
  • THE DISTRICT PROJECT MANAGER, AKSHAYA DISTRICT PROJECT OFFICE, CIVIL STATION, KASARAGOD
  • THE BLOCK COORDINATOR, AKSHAYA DISTRICT PROJECT OFFICE, CIVIL STATION, KASARAGOD
  • SMT.VIDYA KURIAKOSE, GP.

Legal Representation & Advocates

Counsels for Petitioners

  • • MANAS P HAMEED
  • • K REMIYA RAMACHANDRAN K

Counsels for Respondents

  • • GOVERNMENT PLEADER

Case Synopsis & Summary

This writ petition, WP(C) No.18541 of 2023, is filed by two Akshaya Centre licensees (Shafeer K.M. and Ajmal M.M.) seeking quashing of a cancellation order (Exhibit P12) and a mandamus/direction to the Akshaya Project Director to consider transfer applications (Exhibits P5 and P6) in favour of the second petitioner, in light of the District Collector’s recommendation (Exhibit P9) and prior court directions (Exhibit P11). The petition contends that transfer of the Akshaya Centre license is permissible under Government Orders (Exts. P2 and P3) and that the third respondent had no power to cancel the license absent a District Collector’s recommendation. It relies on this Court’s earlier common judgment (Exhibit P11) directing consideration of the transfer, and argues that Ext. P12 violates those directions. The government pleader counters that the first petitioner did not renew the licence post-2021, having obtained government employment in 2020, thus the licence lapsed; Ext. P12 cancellation is therefore permissible lawfully. The court notes the licence expiry and the lack of renewal, and ultimately relies on a line of authority, including Muneer A.P. v. District Collector, Kannur (2023 (2) KHC 18), to affirm that orders passed in pursuance of court directions can be valid. The petition is dismissed for lack of merit, with the court indicating that discretionary relief is unwarranted in the circumstances.

Provisions of Law Cited

Kerala Panchayat Raj Act, Section 180G.O.(MS) No.24/2019/ITDG.O.(MS) No.24/2021/ITDG.O.(MS) No.28/2023/ITD

Legal Doctrines & Maxims

  • Discretionary jurisdiction of the High Court under Article 226 of the Constitution of India
  • Orders passed by an authority in pursuance of a court directive are within jurisdiction and power when consistent with judicial directions

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners’ counsel argued that Exts. P2 and P3 Government Orders permit the transfer of an Akshaya Centre license and that the 3rd respondent had no power to cancel the licence without a District Collector’s recommendation. They highlighted that Ext. P11 (the court’s common judgment) directed the Director to consider the transfer in favour of the 2nd petitioner, and that Ext. P12, cancelling the licence, violated those directions. They emphasized that the ACE (Akshaya Centre Entrepreneurs) framework and the terms in Ext. P1, together with Exts. P5 and P6, show the transfer is permissible; they pressed that the 3rd respondent’s unilateral cancellation is unauthorized. They argued that the High Court’s discretionary jurisdiction under Article 226 should be exercised to secure the petitioners’ rights and prevent illegal cancellation, especially where a court order directs action. They argued about the necessity to keep the Akshaya Centre functioning and that the 2nd petitioner is a legitimate transferee in light of the District Collector’s recommendation and Exts. P2, P3, and P9.

Contentions of Respondents

The respondents contended that the 1st petitioner did not renew the licence after 25.03.2021 and had hidden employment starting 16.07.2020, which vitiates the licence; no renewal implies licensure lapse and the Director could cancel the licence. They argued the Director has authority to cancel in such circumstances and that Ext. P12 is a valid exercise of power; reliance was placed on Exts. P2 and P3 (GO) and the relevant policy to reject the notion of a transfer in the absence of renewal and proper procedure. They submitted that the District Collector’s recommendations were not properly followed and that the petition’s challenge to the cancellation should be dismissed, as the court’s prior directive in Ext. P11 was complied with only in the present context, but the petition remains without merit given the license lapse and non-renewal.

Cited Precedents (3)

Case NameCitationTreatmentExplanation
Muneer A.P. v. District Collector, Kannur2023 (2) KHC 18PositiveCited to support that a court directive can render an order within jurisdiction and power; compliance with a court direction can validate subsequent administrative action.
Common Judgment dated 21.03.2023 in W.P.(C).NO.7430 of 2023 and W.P.(C).NO.7787 of 2023W.P.(C).NO.7430/2023 & W.P.(C).NO.7787/2023PositiveCited as the prior HC decision directing consideration of the transfer, and the present action is framed in light of that directive; used to justify the subsequent Ext.P12 order under the same court’s jurisprudence.
W.P.(C).NO.32686 of 2022W.P.(C).NO.32686 of 2022Mentioned OnlyJudgment referenced as Exhibit P14A; not expressly relied upon as a direct precedential basis in the reasoning.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 26[TH] DAY OF JUNE 2023 / 5TH ASHADHA, 1945 ``` ## **`WP(C) NO. 18541 OF 2023`** ## **`PETITIONERS:`** ``` 1SHAFEER K.M AGED 48 YEARS, S/O KASSALI.A, SHAHANA MANZIL, CHALA ROAD, VIDYANAGAR P.O, KASARAGOD, PIN - 671123 2AJMAL M.M AGED 30 YEARS, S/O MAKKAR M.A, AJMAL MANZIL, INDIRA NAGAR, CHENGALA P.O, KASARAGOD, PIN - 671541 BY ADVS.MANAS P HAMEED K REMIYA RAMACHANDRAN K ``` ## **`RESPONDENTS:`** |`1`|`STATE OF KERALA`| |---|---| ||`DEPARTMENT OF ELECTRONICS AND INFORMATION`| ||`TECHNOLOGY, SECRETARIAT, THIRUVANANTHAPURAM,`| ||`REPRESENTED BY THE SECRETARY TO GOVERNMENT,`| ||`PIN - 695001`| |`2`|`THE SECRETARY TO GOVERNMENT`| ||`STATE OF KERALA, DEPARTMENT OF ELECTRONICS &`| ||`INFORMATION TECHNOLOGY, SECRETARIAT,`| ||`THIRUVANANTHAPURAM, PIN - 695001`| |`3`|`THE DIRECTOR, AKSHAYA PROJECT`| ||`AKSHAYA STATE PROJECT OFFICE,`| ||`VRINDAVAN GARDENS, POTTAKUZHI, PATTOM P.O,`| ||`THIRUVANANTHAPURAM, PIN - 695001`| |`4`|`THE DISTRICT COLLECTOR`| ||`CIVIL STATION, KASARAGOD, PIN - 671123`| |`5`|`THE DISTRICT PROJECT MANAGER`| ||`AKSHAYA DISTRICT PROJECT OFFICE,`| ||`CIVIL STATION, KASARAGOD, PIN - 671123`| |`6`|`THE BLOCK COORDINATOR`| ||`AKSHAYA DISTRICT PROJECT OFFICE, CIVIL STATION,`| ||`KASARAGOD, PIN - 671123`| ||`SMT.VIDYA KURIAKOSE, GP.`| ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C).No.18541/2023 **2** ## **P.V.KUNHIKRISHNAN, J. --------------------------------** ## **W.P.(C).No.18541 of 2023** **---------------------------------------------Dated this the 26[th] day of June, 2023** ## **JUDGMENT** This writ petition is filed with following prayers: - i. Call for all the records leading to the issuance of Exhibit P12 order and issue a writ of Certiorari quashing the same. - ii. Issue writ of mandamus or order or direction or any other appropriate writ directing the 3[rd] respondent to consider Exhibits P5 and P6 applications of the petitioner for transfer of license, in the light of Exhibit P9 recommendation letter of the District Collector, Exhibit P11 judgment of this Hon'ble Court and Exhibit P13 Government Order. - iii. Such other relief that this Honourable Court may deem fit and proper in the facts and circumstances of the case. - iv. Dispense with the English translation of documents in vernacular language. ## (SIC) 2. The 1[st] petitioner is a licensee of Akshaya Centre. The 1[st] petitioner intends to transfer the licence to the 2[nd] petitioner. According to the petitioners, third-party transfer is WP(C).No.18541/2023 **3** permissible as per Exts.P2 and P3 Government Orders. It is also submitted that the 4[th] respondent District Collector/Chief Coordinator has already placed recommendation as evident by Ext.P9 before the 3[rd] respondent - Director to transfer the licence in favour of the 2[nd] petitioner. But without considering the same, the 3[rd] respondent straight away cancelled the licence is the submission. It is the case of the petitioners that the 3[rd] respondent has no power to cancel the license without a recommendation for cancellation by the District Collector. It is also submitted that this Court, as per Ext.P11 judgment, already quashed the cancellation order issued by the 3[rd] respondent and directed the 3[rd] respondent to consider the recommendation for transfer made by the District Collector in favour of the 2[nd] petitioner. But again Ext.P12 order has been passed by the 3[rd] respondent in violation of Exts.P2 and P3 Government Orders is the submission. Hence this writ petition. 3. Heard the learned counsel for the petitioners and the learned Government Pleader. 4. The counsel for the petitioners reiterated the contentions raised in this writ petition. The counsel takes me WP(C).No.18541/2023 **4** through the responsibilities of Akshaya Centre Entreprenuers (ACE) and submitted that 3[rd] clause in the heading ‘Responsibilities as Common Service Centre’ only says that ACE shall not engage in other business activities detrimental to the goodwill, brand and future prospects of Akshaya Project. The counsel also submitted that as per Ext.P11 judgment, this Court was pleased to set aside the order passed by the Director, Akshaya Project dated 30.01.2023 and directed the Director to consider the application submitted by the petitioners to transfer the Akshaya Centre in favour of the 2[nd] petitioner. The counsel for the petitioners submitted that this Court only directed to consider the application for transfer and now the Director canelled the licence itself. The counsel also submitted that the authority to consider the cancellation of licence is the District Collector and the 3[rd] respondent Director has no power to do the same. The Government Pleader, on the other hand, takes me through the counter affidavit filed by the 3[rd] respondent and the argument notes submitted by her, and submitted that the 1[st] petitioner was appointed as Part Time Sweeper in Meencha Grama WP(C).No.18541/2023 **5** Panchayath as per Ext.P4 order in July 2020. But the 1[st] petitioner submitted the application for transfer of licence in the name of the 2[nd] petitioner only on 09.03.2022. It is submitted by the Government Pleader that the 1[st] petitioner suppressed his employment for about two years and thereafter he wants to transfer the Akshaya Centre to the 2[nd] petitioner. It is the case of the petitioners that the 2[nd] petitioner is the benami of the 1[st] petitioner. The Government Pleader also submitted that the 1[st] petitioner has not even renewed the licence after executing the agreement in the year 2018. Therefore the licence is automatically cancelled after three years from 26.03.2018 because no renewal application was filed. The Government Pleader also submitted that the Director only observed that the Akshaya Centre will be renotified and the 2[nd] petitioner also can participate in it. 5. This Court considered the contentions of the petitioners and the Government Pleader. It is an admitted fact that as per Ext.P1 dated 26.03.2018, the period of licence is for three years. It is submitted by the Government Pleader that no application for renewal was submitted by the 1[st] petitioner after the expiry of three years from 26.03.2018. WP(C).No.18541/2023 **6** Therefore the 1[st] petitioner has not renewed the licence after 25.03.2021. Even though the counsel for the petitioners submitted that the licence was renewed after 25.03.2021, no document is produced by the petitioners. From this it is clear that the 1[st] petitioner is continuing the Akshaya Centre without any proper licence. Moreover, the 1[st] petitioner obtained a job on 16.07.2020 as a contingent employee. Clause (4) of Ext.P2 Government Order shows the instances in which an Akshaya Centre can be transferred. It is stated that when an Akshaya Centre licensee obtained government job, it can be transferred. Admittedly the 1[st] petitioner obtained a job on 16.07.2020. The counsel for the petitioners, relying on Section 180 of the Kerala Panchayat Raj Act, stated that the officers and employees of the Panchayat, other than contingent employees, shall be government servants. Therefore it is submitted that Ext.P3 Government Order is not applicable to the 1[st] petitioner. But it is a fact that the 1[st] petitioner obtained an employment on 16.07.2020. But the 1[st] petitioner submitted the application for transfer only on 09.03.2022. Therefore, even without renewing the licence WP(C).No.18541/2023 **7** on 25.03.2021, suppressing the fact that the 1[st] petitioner obtained a job, he continued as a licensee of Akshaya Centre and the application for transfer of the Akshaya Centre to the 2[nd] petitioner submitted only on 09.03.2022. In such circumstances, I am of the considered opinion that the discretionary jurisdiction of this Court need not be invoked in the peculiar facts and circumstances of the case. 6. The counsel for the petitioners submitted that this Court directed to consider the application submitted by the petitioners to transfer the Akshaya Centre in favour of the 2[nd] petitioner and now the licence itself is cancelled by the Director. It is also submitted that the cancellation of licence can be done only by the District Collector. But in **Muneer A.P. v. District Collector, Kannur [2023 (2) KHC 18]** this Court held that when High Court exercises its power under Article 226 and directs an authority to pass an order, the order passed by the said authority can legally be presumed to be an order within the jurisdiction and power. As per Ext.P11 judgment, this Court directed the 3[rd] respondent to consider the application and pass orders. In compliance with the judgment, the 3[rd] respondent passed Ext.P12 order. In such WP(C).No.18541/2023 **8** circumstances, the contention of the petitioners that the 3[rd] respondent has no authority to cancel the licence need not be entertained. 7. Moreover, as per the terms and conditions mentioned in Ext.P1 agreement and as per the general conditions, dispute, if any, between Akshaya and ACE has to be adjudicated by the Arbitrator, i.e., Secretary, Department of IT, Government of Kerala. In such circumstances, this writ petition need not be entertained. There is no merit in this writ petition and hence it is dismissed. JV sd/- **P.V.KUNHIKRISHNAN JUDGE** WP(C).No.18541/2023 **9** ## **`APPENDIX OF WP(C) 18541/2023`** - `PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE AGREEMENT DATED 26.03.2018 EXECUTED BETWEEN THE 1ST PETITIONER AND THE 2ND RESPONDENT DISTRICT COLLECTOR` - `Exhibit P2 A TRUE COPY G.O.(MS).NO.24/2019/ITD DATED 30.10.2019 ISSUED BY THE DEPARTMENT OF ELECTRONICS & INFORMATION TECHNOLOGY, GOVERNMENT OF KERALA` - `Exhibit P3 A TRUE COPY OF G.O.(MS).NO.24/2021/ITD DATED 30.07.2021 ISSUED BY THE DEPARTMENT OF ELECTRONICS & INFORMATION TECHNOLOGY, GOVERNMENT OF KERALA` - `Exhibit P4 A TRUE COPY OF THE ORDER DATED 16.07.2020 ISSUED BY THE SECRETARY, MEENCHA GRAMA PANCHAYAT` - `Exhibit P5 A TRUE COPY OF THE APPLICATION DATED 09.03.2022 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 4TH RESPONDENT` - `Exhibit P6 A TRUE COPY OF THE APPLICATION DATED 09.03.2022 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 4TH RESPONDENT` - `Exhibit P7 A TRUE COPY OF THE LETTER DATED 21.04.2022 SUBMITTED BY THE 6TH RESPONDENT BEFORE THE 5TH RESPONDENT` - `Exhibit P8 A TRUE COPY OF THE LETTER DATED 25.04.2022 SUBMITTED BY THE 5TH RESPONDENT BEFORE THE 4TH RESPONDENT` - `Exhibit P9 A TRUE COPY OF THE LETTER DATED 25.04.2022 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 3RD RESPONDENT` - `Exhibit P10 A TRUE COPY OF THE ORDER DATED 30.01.2023 ISSUED BY THE 3RD RESPONDENT` - `Exhibit P11 A TRUE COPY OF THE COMMON JUDGMENT DATED 21.03.2023 IN W.P.(C).NO.7430 OF 2023 AND W.P.(C).NO.7787 OF 2023 PASSED BY THIS HONOURABLE COURT` WP(C).No.18541/2023 **10** ``` Exhibit P12A TRUE COPY OF THE ORDER DATED 01.06.2023 ISSUED BY THE 3RD RESPONDENT Exhibit P13A TRUE COPY OF G.O.(MS) NO.28/2023/ITD DATED 09.02.2023 ISSUED BY THE DEPARTMENT OF ELECTRONICS & INFORMATION TECHNOLOGY, GOVERNMENT OF KERALA ``` ``` RESPONDENT EXHIBITS ``` ``` Exhibit R3(a)True copy of the G.O. (Rt) No. 171/2013/ITD dated 20.07.2013 ``` ``` PETITIONER EXHIBITS ``` ``` Exhibit P14A TRUE COPY OF THE JUDGMENT DATED 09.11.2022 IN W.P.(C).NO.32686 OF 2022 AND THE CONNECTED CASE PASSED BY THIS HON'BLE COURT ```