WP(C) Nos. 31451 of 2023 & 31525 of 2023 – Riyas A.K. v Sulthan Bathery Municipality; Mansoor A.K. v Sulthan Bathery Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **THURSDAY, THE 14[TH] DAY OF DECEMBER 2023 / 23RD AGRAHAYANA, 1945** **WP(C) NO. 31451 OF 2023** ## **PETITIONER:** **RIYAS A.K., AGED 43 YEARS, S/O KASIM AMMAMKULAM, MALAVAYAL,MALAYAVAYAL, NENMENI GRAMA PACHAYAT, 2-MALAVAYAL, WAYANAD, PIN – 673 592** **BY ADVS. V.VISAL AJAYAN RAJESH KUMAR R.** ## **RESPONDENTS :** **1 SULTHAN BATHERY MUNICIPALITY, SULTAN BATHERY PO, WAYNAD DISTRICT, PIN – 673592, REPRESENTED BY ITS SECRETARY** - **ADDL. R2 IS SUO MOTU IMPLEADED** - **2 THE STATE OF KERALA REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM – 695 001.** - **ADDL.R2 IS SUO MOTU IMPLEADED AS PER ORDER DATED 13.11.2023.** ## **BY ADV JAYAKUMAR NAMBOODIRI T.V** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.12.2023, ALONG WITH WP(C) NO.31525/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 31451 OF 2023 & WP(C) NO. 31525 OF 2023** 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **THURSDAY, THE 14[TH] DAY OF DECEMBER 2023 / 23RD AGRAHAYANA,** **1945** ## **WP(C) NO. 31525 OF 2023** ## **PETITIONER :** **MANSOOR A.K., AGED 43 YEARS, S/O AHAMMEDKUTTY, KUNNINMMAL HOUSE, SULTHAN BATHERY TALUK, MOODAKOLLI, SULTHAN BATHERY, WAYANAD, PIN – 673 592** **BY ADVS. V.VISAL AJAYAN RAJESH KUMAR R.** ## **RESPONDENTS :** **SULTHAN BETHERY MUNICIPLAITY, SULTAN BATHERY PO, WAYANAD DISTRICT, PIN – 673592 - REPRESENTED BY IT'S SECRETARY,** |*****|**ADDL. R2 IS SUO MOTU IMPLEADED**| |---|---| |**2**|**THE STATE OF KERALA**| ||**REPRESENTED BY THE SECRETARY,**| ||**LOCAL SELF GOVERNMENT DEPARTMENT,**| ||**SECRETARIAT, THIRUVANANTHAPURAM – 695 001.**| |*****|**ADDL.R2 IS SUO MOTU IMPLEADED AS PER ORDER DATED**| ||**13.11.2023.**| ||**BY ADV JAYAKUMAR NAMBOODIRI T.V**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.12.2023, ALONG WITH WP(C) NO.31451/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 31451 OF 2023 & WP(C) NO. 31525 OF 2023** 3 ## **BECHU KURIAN THOMAS, J.** =-=-=-=-=-=-=-=-=-=-=-=-=-= ## **W.P.(C) No.31451 of 2023 & W.P.(C) No.31525 of 2023** =-=-=-=-=-=-=-=-=-=-=-=-=-= **Dated this the 14[th] day of December, 2023** ## **JUDGMENT** The petitioners in these two writ petitions claimed deemed licence from the Municipality as per Section 447(6) of the Kerala Municipalities Act, 1994 (for short, 'the Act'). Though petitioners have pleaded in the writ petition that they are entitled to the deemed licence as per Section 236(3) of the Panchayat Raj Act 1994, the provision is obviously a mistake as the area is not within a panchayat. 2. Petitioners intended to conduct business in building No.24/941 of the Sulthan Bathery Municipality. They obtained separate consents to operate in the very same premises up to 31.05.2028. The petitioner in W.P.(C) No.31451 of 2023 obtained integrated consent for selling chicken and fish, while the petitioner in W.P.(C) No.31525 of 2023 obtained consent for indulging in the fish trade. 3. Petitioners allege that despite submitting separate applications for grant of a trade licence, the respondent Municipality failed to consider the same, and therefore, they have obtained a deemed licence under the provisions of the Act. Petitioner in W.P.(C) No.31451 of 2023 alleged that he had applied on 19.07.2023 as acknowledged by Ext.P3, while the **WP(C) NO. 31451 OF 2023 & WP(C) NO. 31525 OF 2023** 4 petitioner in W.P.(C) No. 31525 of 2023 had applied on 21.06.2023 for grant of respective licences to them. Though the applications submitted by the petitioners were acknowledged, no communication was issued to them, and therefore, both of them have obtained deemed licences. 4. Statements have been filed by the Municipality separately in both writ petitions. According to the respondents, the application submitted by the petitioners as per Ext.P3 was through the Integrated Local Governance Management System (ILGMS) which is made applicable only to the Grama Panchayat and not to the Municipality. Apart from the above, the defective applications submitted by the petitioners were not accompanied by the requisite documents like the consent of the building owner, rent deed, consent of the pollution control board, and though the applications can be visible on the ILGMS software since it is not made applicable, they cannot be downloaded or printed. It is further stated that since the ILGMS has not yet been implemented in the Municipalities in Kerala, the applications are not liable to be processed, nor can those be considered legally by the Secretary. The respondents have also produced Ext.R1(b) order of the Government dated 06.04.2022 specifying that ILGMS is applicable only to Panchayats. Even otherwise, as per Ext. R1(c) intimation, the trade licences applied for by the petitioners were rejected. 5. The learned counsel for the petitioners contended that the applications were received by the Municipality, which were even been **WP(C) NO. 31451 OF 2023 & WP(C) NO. 31525 OF 2023** 5 acknowledged as per the receipts produced, and therefore, the Municipality cannot now turn around and contend that the petitioners have not submitted any application. It is further submitted that if there was no application, there could not have been any rejection as seen from Ext.R1(c) and therefore, the contentions of the respondents are only to be rejected. 6. The learned Standing Counsel for the respondent Municipality submitted that the concept of deemed licence being a special circumstance, the application of the petitioners must be complete in all respects and only then would the benefit be applicable. It is further submitted that the ILGMS system has not yet been made applicable to the Municipality, which was known to the petitioners, and therefore, the respondents cannot be bound by the principle of deemed licence. 7. I have considered the rival contentions. 8. Admittedly, the petitioners had submitted their applications for trade licences through the ILGMS software. Concededly, the said system is not applicable to the Municipalities. Though the application is installed, it has not been activated, nor can it be operated upon by the Municipality. This is evident from Ext.R1(b) order of the Government, which has made the ILGMS system applicable only to Panchayats. There are no similar orders issued with respect to the municipality. In the absence of any such orders, the applications will have to be filed by the petitioners physically to the Municipality. Unless the entire machinery is equipped to deal with **WP(C) NO. 31451 OF 2023 & WP(C) NO. 31525 OF 2023** 6 the software, a claim for a deemed licence cannot arise based on an application that is unacceptable and inapplicable. Thus, it is evident that petitioners' application cannot be legally said to be available with the Municipality for the petitioners to claim the deemed licence. 9. In this context, it has to be mentioned that, as is evident from Ext.R1(c), the respondent Municipality rejected the petitioners' application for the reasons mentioned therein. Petitioners' contention that since the applications have been rejected, respondents cannot refer to the inapplicability of the ILGMS though impressive on first blush, on a deeper analysis, it can be seen that the said contention is not legally tenable. Legally, a deemed licence is a statutory creation and is based on fiction to achieve a particular consequence. Such provisions are to be strictly interpreted and become effective only when all the parameters for its applicability as contemplated under the statute are satisfied. The court cannot forgo the essential factors that are required to form part of the legal fiction while interpreting the provision. All factors must be satisfied to give effect to the deeming provision. Reference in this context can profitably be made to **Abdul Kharim and Ors. v. Pazhayakunummel Grama Panchayath and Ors.** [2018 (5) KHC 643]. 10. The application for licence purported to have been submitted by the petitioners is through a system called ILGMS (Integrated Local Governance Management System). As per Annexure R2, it is evident that the said system is not applicable to the Municipalities. The Government **WP(C) NO. 31451 OF 2023 & WP(C) NO. 31525 OF 2023** 7 had issued orders making such a system applicable only to Panchayats. In the absence of a proper application submitted by the petitioners, the claim for deemed licence cannot be considered. 11. Even though the learned counsel for the petitioners contended that no response was given by the Municipality pointing out any defect in the application, I am afraid I find it difficult to give approval to the said submission since, without an application, there is no question of the Municipality responding to such an application pointing out the defect in it. 12. It is true that the Municipality has subsequently rejected the application submitted by the petitioners. However, that by itself is not a reason to claim the benefit of deemed licence since the said concept arises only when the special circumstances required under law are satisfied. If the petitioners are aggrieved by the rejection of the licence, their remedy is elsewhere. Since there is no such challenge raised against the rejection of the licence in this writ petition, I am of the view that the petitioners' claim for deemed licence cannot be allowed. Accordingly, I dismiss these two writ petitions. Sd/- **BECHU KURIAN THOMAS, JUDGE** RKM **WP(C) NO. 31451 OF 2023 & WP(C) NO. 31525 OF 2023** 8 ## **APPENDIX OF WP(C) 31451/2023** ## **PETITIONER'S EXHIBITS :** **Exhibit P1 A TRUE COPY OF THE UNDERTAKING BEFORE THE RESPONDENT DATED 14.8.2023** **Exhibit P2 A TRUE COPY OF THE CONSENT GIVEN BY THE POLLUTION CONTROL BOARD TO THE PETITIONER DATED 10.08.202** **Exhibit P3 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT DATED 19.07.2023** **Exhibit P4 A TRUE COPY OF THE RECEIPT OF THE APPLICATION ISSUED BY THE RESPONDENT DATED 19.07.2023** ## **RESPONDENTS' ANNEXURES :** **ANNEXURE-R-1 TRUE PHOTO IMAGE OF THE REPLY GIVEN BY THE MUNICIPALITY TO THE PETITIONER THROUGH ILGMS** **ANNEXURE-R-2 TRUE COPY OF THE GOVERNMENT ORDER NUMBER G.O(M.S) 75/2022/LSGD DATED 06.04.2022 ANNEXURE-R-3 TRUE COPY OF THE NOTICE DATED 16.10.2023 ISSUED TO THE PETITIONER ANNEXURE-R-4 TRUE COPY OF THE LETTER DATED 26.10.2023 FORM THE SECRETARY TO THE JOINT DIRECTOR** **WP(C) NO. 31451 OF 2023 & WP(C) NO. 31525 OF 2023** 9 ## **APPENDIX OF WP(C) 31525/2023** ## **PETITIONER'S EXHIBITS :** **Exhibit P1 A TRUE COPY OF THE FOOD SAFETY REGISTRATION LICENSE DATED 21.07.2023** **Exhibit P2 A TRUE COPY OF THE CONSENT GIVEN BY THE POLLUTION CONTROL BOARD TO THE PETITIONER DATED 13.06.2023** **Exhibit P3 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT DATED 21.06.2023** **Exhibit P4 A TRUE COPY OF THE RECEIPT OF THE APPLICATION ISSUED BY THE RESPONDENT DATED 21.06.2023** ## **RESPONDENTS' ANNEXURES :** **ANNEXURE-R-1(a) TRUE PHOTO IMAGE OF THE REPLY GIVEN BY THE MUNICIPALITY TO THE PETITIONER THROUGH ILGMS** **ANNEXURE-R-1(b) TRUE COPY OF THE GOVERNMENT ORDER NUMBER G.O(M.S) 75/2022/LSGD DATED 06.04.2022 ANNEXURE-R-1(C) TRUE COPY OF THE NOTICE DATED 18.10.2023 ANNEXURE-R-1(d) TRUE COPY OF THE LETTER DATED 26.10.2023 FORM THE SECRETARY TO THE JOINT DIRECTOR**