IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 36126 of 2009(I)
1. THE CHERPLASSERY GRAMA PANCHAYATH,
... Petitioner
Vs
1. THE TRIBUNAL FOR LOCAL SELF
... Respondent
2. THE PRESIDENT, CHERPLASSERY GRAMA
3. JAFFER ALI.N.K., S/O.HAMZA,
4. ANWAR ALI, S/O.KUNJIMOHAMMED,
5. HASSANKUTTY, S/O.MUHAMMED,
6. SAKKAR, S/O.ABOOBACKER,
For Petitioner :SRI.V.CHITAMBARESH (SR.)
For Respondent :SRI.BABU S. NAIR
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :19/01/2010
O R D E R
ANTONY DOMINIC, J
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W.P.(C).36126/2009
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Dated this the 19th day of January, 2010
JUDGMENT
1. Petitioner had granted licence to respondents 3 to 6 to
carry on the business of dry fish in the shops established by
them. The licence was valid till 31.3.2009. Panchayat submits
that various complaints about the unhygienic manner in which
the shops were conducted, were received by the Panchayat.
Exts.P1 and P2 are referred to in this context. It is stated that
taking note of the complaints thus received, Panchayat passed
resolution dated 23.2.2009 to cancel the licence granted to
respondents 3 to 6.
2. Respondents 3 to 6 filed appeals to the Tribunal for Local
Self Government Institutions. Appeals were disposed of
directing reconsideration of the matter. In the meantime, as
licences were expiring on 31.3.2009, applications were made by
respondents 3 to 6 on 6.3.2009, seeking renewal of their
licences. However, the licences were not renewed and later
by its resolution dated 26.3.2009, the applications for renewal
were rejected by the Panchayat.
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3. In pursuance to the aforesaid order of the Tribunal
directing reconsideration of the decision of the Panchayat to
cancel the licence, Panchayat issued Exts.P4 to P7, dated
9.6.2009 informing respondents 3 to 6 that for the reasons
stated therein, they had decided not to permit respondents 3 to
6 to continue the dry fish business.
4. Against Exts.P4 to P7, appeals were filed before the
Committee of the Panchayat. Initially the Committee stayed
Exts.P4 to P7. A sub committee was appointed and the said sub
committee inspected the premises of the shops. A report of the
Health Inspector was also obtained. Based of these materials,
the appeals were considered and were rejected by the
Panchayat Committee, by Ext.P10 order. Against Ext.P10,
respondents 3 to 6 filed Revision Petitions before the Tribunal
numbered as Revision Petition Nos.96, 97, 98 and 99 of 2009.
By Exts.P11 to P14 orders, the Tribunal allowed the Revisions
and Ext.P10 was set aside. It was ordered that the applications
dated 6.3.2009 made by respondents 3 to 6 seeking renewal of
the trade licence for the period 2009-10 will stand allowed.
However, liberty was given to the Panchayat to initiate action
under Section 236(9) of the Kerala Panchayat Raj Act. It is
W.P.(C).36126/09
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challenging this order Panchayat has filed the writ petition.
5. According to the Panchayat, although it had cancelled the
licence granted to respondents 3 to 6 for the period upto
31.3.2009, it did not renew the licence after 31.3.2009. It is
stated that in the absence of having renewed the licence beyond
31.3.2009, respondents had no licence to be revoked in terms of
Section 236(9) of the Act. It is stated that this vital aspect of the
matter was not considered by the Tribunal while disposing of
the Revisions. It is also contended that the Tribunal has
proceeded as if, the application for renewal was to be
automatically granted and that it was impermissible for the
Panchayat to refuse renewal even if valid reasons were
available. On these grounds Panchayat seeks to invalidate
Ext.P10 order of the Tribunal.
6. On the other hand, learned counsel for respondents 3 to 6
contended that the whole proceedings initiated by the
Panchayat was mala fide. According to the learned counsel,
respondents 3 to 6 have been carrying on this business for the
last more than 20 years without any complaint from any quarter.
It is stated that when a private person established a market,
W.P.(C).36126/09
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Panchayat wanted respondents 3 to 6 to shift their shops to that
private market. It is only when this demand of the Panchayat
was refused that they initially cancelled the licences for no valid
reason. Against Exts.P4 to P7, appeals were filed and that on its
rejection, Revisions were filed which culminated in Exts.P11 to
P14. Respondents contend that reasons stated by the Tribunal
in Exts.P11 to P14 are valid and that no interference is called
for.
7. I have considered the submissions made by both sides. As
already seen, the licence granted was valid till 31.3.2009. From
the materials available, it is evident that the licence was not
renewed thereafter. If a licence is not renewed as sought for, in
the absence of any licence there arise no question of applying
Section 236(9) of the Act which provides for suspension or
revocation of a licence or permission granted by the Panchayat.
In this case, in the absence of any licence for the period from
1.4.2009, there is no situation to invoke Section 236(9) of the
Act. Then the question is whether the Panchayat was justified
in not renewing the licence. A reading of Exts.P11 to P14 orders
show that according to the Tribunal, in the absence of any
arrears of licence fee due to the Panchayat, the application for
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renewal of the licence for the period 2009-10 would have been
only allowed by the Secretary. It is also stated that if public
interest is not affected by the trade till 31.3.2009, how it will be
affected by the same trade after 1.4.2009 is not clear in the
impugned decision. The aforesaid observations made by the
Tribunal would suggest that renewal of licence was automatic.
8. As already stated, it is the case of the Panchayat that when
a public market was established, Panchayat had resolved that
all shops should be shifted to the said market. It is also the case
of the Panchayat that there were complaints received from
various quarters against the dry fish business of the party
respndents. It was therefore the Panchayat resolved to cancel
the licence by its resolution dated 23.3.2009. If valid reasons
were in existence, it is always open to the Panchayat to decline
renewal of licence. These valid reasons could be the
establishment of a new market, complaints from the local
residents etc. If such valid reasons are there, Panchayat cannot
be faulted for cancelling the decision. Of course, it is for the
Tribunal to be satisfied about the validity of the reasons.
Therefore, I cannot agree with the view of the Tribunal. It is
true that the decision taken by the Panchayat did not reflect
W.P.(C).36126/09
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such reasons. But it is always open to the Panchayat to satisfy
the Tribunal with reference to the files maintained by it.
9. On an over all consideration of the facts, I do not find my
way to agree with the views taken by the Tribunal in Exts.P11 to
P14. In my view, the matter needs to be reconsidered.
Therefore, I set aside Exts.P11 to P14 and direct that the matter
shall be reconsidered by the Tribunal.
10. It is pointed out by the respondents that after the writ
petition was admitted and stay order was passed, shops have
been closed. Having regard to the above, I direct that it will be
open to the parties to produce a copy of this judgment before
the Tribunal and on its production, the Tribunal shall expedite
the disposal of the matter and pass fresh orders, as
expeditiously as possible, at any rate within four weeks
thereafter.
Writ petition is disposed of as above.
ANTONY DOMINIC,
Judge
mrcs