IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR THURSDAY ,THE 13TH DAY OF JANUARY 2011 / 23RD PAUSHA 1932 WP(C).No. 28252 of 2004 PETITIONER/S: 1 K.M.ANSAR PAZHAYAVEEDU, CIVIL STATION WARD,, AMBALAPUZHA TALUK, ALAPPUZHA DISTRICT. 2 K.SEETHI SAHIB PARITHYAM PALLIYIL, PUTHENANGADI, VARANAM,, CHERTHALA TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.P.RAVINDRAN (SR.) RESPONDENT/S: 1 OMBUDSMAN FOR LOCAL SELF GOVT. THIRUVANANTHAPURAM. 2 THANNEERMUKKOM GRAMA PANCHAYAT THANNEERMUKKOM P.O., ALAPPUZHA, REP. BY ITS, SECRETARY. 3 V.P.DHANAPALAN ANAKUZHEEKKAL VEEDU, VARANAM P.O.,, THANNEERMUKKOM, ALAPPUZHA. BY ADV. SRI.JOBY CYRIAC SRI C RAGHAVAN R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.01.2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C) No. 28252/2004 2 C.T.RAVIKUMAR, J ------------------------------ W.P.(C)No.28252 OF 2004 ---------------------------------- Dated this the 13th day of January, 2011 JUDGMENT Is it mandatory that an advocate should wear robs for appearing before the learned Ombudsman for Local Self Government Institutions and is it open to the Ombudsman to order eviction from a building belonging to the Local Self Government Institution on a ground which was not at all raised? These questions arise for consideration in the following factual matrix:- 2. A jewellery shop in shop No. 3 of the shopping complex belonging to the second respondent Panchayath was leased out to the second petitioner based on an agreement executed between them. When the business became dull Ext.P1partnership deed was executed between the petitioners for the purpose of carrying on the business of collection and selling of gold and silver ornaments, as a partnership firm by name “Brothers Jewellers”. Subsequently, the second respondent Panchayath issued license for running jewellery in the name of the first petitioner. While so, the 3rd respondent who is running a meat W.P(C) No. 28252/2004 3 mart in the another shop in same shopping complex filed a complaint before the first respondent to the effect shop No. 3 was sub-let by the second petitioner to the first petitioner, herein. There upon the first respondent without issuing notice to the petitioners and without affording them an opportunity of being heard passed to conduct auction and put the said shop room in to the possession of the highest bidder as expeditiously as possible, at any rate within a period of two months from 16.05.2002. Essentially, such directions were issued after ordering to evict them. On the date of passing of Ext.P5 order Ext.P4 license was subsisting in the name of the first petitioner. In fact the 3rd respondent moved the petition without making as parties to the said complaint. That apart, the petitioners Ext.P5 order was passed without notice to them. In the said circumstances, being aggrieved by and dissatisfied with Ext P5 order passed by the Ombudsman the petitioners had approached this Court by filing OP No. 18742/2002. The said petition was disposed of as per Ext P6 judgment. Ext P5 was set aside and the 1st respondent ombudsman was directed to consider the matter afresh , in accordance with law, after giving opportunity to the petitioners to put for forward case in the matter. Consequently, the matter W.P(C) No. 28252/2004 4 again came up before the learned Ombudsman for consideration on 23.7.2004 and on the same day itself Ext.P7 order was passed. It is challenging Ext.P7 order passed by the first respondent that this writ petition has been filed. 3. A counter affidavit has been filed in this writ petition on behalf of the second respondent. Though the third respondent has received notice he has not chosen to enter appearance and contest the case. In the said counter affidavit it is stated thus:- “with respect to the averment contained in the first paragraph of the petition it is submitted that the license to do business in the shop rooms belonged to the panchayath was in the name of the 2nd petitioner initially. It is true that license was issued in the name of the 1st petitioner subsequently and the same is valid for the period prescribed in it.” The second respondent, however contended them that Ext.P1 agreement was not recognized by it and that the petitioners could not claim any right by virtue of Ext.P1 agreement. It is also contented that normally the rooms are let out for a period of one year and the panchayath has discretionary power to extend the period with variation in the rent for a minimum of 5% increase for year. The second respondent would further contented that the petitioner could not claim any right to occupy shop room no 3 belonged to it by virtue of Ext.P1 agreement and the right to W.P(C) No. 28252/2004 5 auction is vested with the panchayath. After making such statements if was further stated:- “Hence it is humbly prayed that their Hon'ble Court may be pleased to accept the contractions raised in this counter affidavit and pass appropriate orders.” 4. It is thus evident that the 2nd respond virtually, admitted the petitioners contention that initially, the license to do business in the shop room in question was in the name of the 2nd petitioner and thereafter, it was issued in the name of the 1st petitioner. Though the 2nd respondent would content that the petitioners could not claim any right to occupy the room in question by virtue of Ext.P1 agreement there is conspicuous absence of any explanation as to how the license in the name of the 2nd petitioner to do business in shop room No.3 came to be issued in the name of the 1st petitioner but for Ext.P1 agreement. Ext.P4 that stood in the name of the 1st petitioner that was valid for the period from 25.08.2000 to 31.03.2001. Ext.P2 and P3 would reveal that license fee for the four years 2001-2002 and 2002-2003 was received from the first petitioner . 5. It is the consistent case of the petitioners that on the strength of Ext.P4 license the petitioners have been conducting W.P(C) No. 28252/2004 6 jewellery business in the aforementioned shop room. In this context, another aspect also assures relevance. The Kerala Panchayath Raj (Acquisition and disposal of property) Rules, 2005 came into force with effect from 27.03.2006. Rule 11 thereunder reads thus:- Transfers to be either in public auction or through tenders:- The transfers of the property of the Panchayath through sale, except renewal of license, rehabilitation of licensees, granting of lease letting out on rent, shall either be in public auction or by inviting tenders. A perusal of Rule 11 would reveal that there is not outer limit prescribed thereunder or in other words, there is nothing in the rules which would suggest that every year auction should be conducted in respect of each item of properties belonging to the panchayath. In fact, the very contention of the 2nd respondent is also in tune with the said position in as much as it claimed to have discretionary power to extend the period with variation in the rent for a minimum of 5% increase per year. At the same time, Rule 11 would reveal that a public auction or transfer through tenders is not mandatory in case of renewal of license, rehabilitation of licensees, granting of lease, letting out on rent. In short, Rule 11 would reveal that after 27.3.2006, in the case of transfer of property of Panchayath, public auction or transfer through tender is not necessary for renewal of license. The W.P(C) No. 28252/2004 7 respondent do not have a case that the license granted in the name of first petitioner was canceled subsequently. 6. I may now revert to the issue involved in this writ petition. Ext.P5 would reveal that at the first instance, the first respondent interfered with the issue relating the transfer of property belonging to the second respondent with respect to the shop room in question, at the instance of the third respondent on the ground that it was without conducting auction the Panchayath allowed the sublessee viz, the first petitioner, to continue in possession of the shop building without any valid document. A perusal of Ext.P5 would again show that it was observed thereunder that the panchayath was bound to auction the Building when once the lessee surrendered the possession. As stated earlier, Ext.P5 was set aside by this Court as per Ext.P6 judgment on the ground of violation of the principles of natural Justice. The present impugned order Ext.P7 was passed by the learned Ombudsman on the same day on which it was came up for consideration after the reward for fresh consideration pursuant to Ext.P6. 7. Evidently, Ext.P7 order was passed by the first respondent in view of Rule 6 of the Kerala Panchayath(Acquisition W.P(C) No. 28252/2004 8 and transfer of immovable property) Rules, 1963. Evidently, during the hearing the petitioners herein were made to appear in person and submit their contentions as the lawyer as sought to appear for them was not in his robes. According to the petitioners they were not offered with a meaningful opportunity to submit their contention or to file any objection against the complaint preferred by the 3rd respondent and the said action is opposed to the spirit of Ext.P6 judgment. 8. I will deal with the said issue a little later. Evidently, the contention of the petitioner herein before the first respondent was that there is no scope to interfere with their right to continue in possession of the shop in question especially, because they are carrying on the business in the building in question on partnership basis as evidenced by Ext.P1. In the context of the said contention, it is relevant to refer to the stand taken by the second respondent Panchayath before the fist respondent which is evident from Ext.P7 itself. Paragraph 3 in Ext.P7 it is stated that direction thereunder was issued rejecting the stand taken by the Panchayath that the license was renewed and the lessee was allowed to continue in possession as per the decision of the Panchayath. In that context another matter also assumes W.P(C) No. 28252/2004 9 relevance. In the counter affidavit filed in this writ petition, the second respondent Panchayath has categorically admitted that though initially license was issued in the name of the second petitioner, subsequently it was issued in the name of the first petitioner and the same was valid for the period prescribed in the license. No provision has been brought to my notice under Panchayath(Acquisition and Transfer of Immovable Property) Rule 1963 which prohibited the licensing authority to renew the license. I do not think it necessary to go into the legality of the action on the part of the Panchayath in renewing the license. Evidently, there is no challenge against that said action of the Panchayath. As already noticed, the complaint of the 3rd respondent who was the petitioner before the fist respondent was only that the room in question was sublet by the 2nd petitioner to the first petitioner. Evidently, at the relevant point of time Ext.P4 license was valid. The learned senior counsel appearing for the petitioner submitted that even now the first petitioner is in occupation of the shop room based on the license issued to him which was being renewed form time to time. Though the complaint of the 3rd respondent before the first respondent was mainly on the ground that the building in question was sublet. A W.P(C) No. 28252/2004 10 perusal of Ext.P7 would reveal that said the ground was not at all adverted to while passing Ext.P7. However, it is evident from Ext.P7 that the order thereunder was passed relying on the provisions of Rule 6 of Panchayath (Acquisition and Transfer of Immovable Property) Rule, 1963. Going by Rule 6 the Panchayath is bound to auction the shop building on the expiry of the period of lease and the highest bidder should have be put in possession of the shop building. With respect to the question as to whether the shop room in occupation of the petitioner's area should be re auctioned was answered against them and in favour of the petitioner relying on the aforesaid provision which was not actually raised as a ground by the 3rd respondent to assail the action on the part of the second respondent Panchayath. It is in that context that the learned senior counsel submitted that there is no justification on the part of the first respondent to direct the second respondent Panchayath to conduct auction and to put the shop building in question, which is in possession of the petitioners, to the highest bidder. As already noticed the aforesaid ground was not at all raised by the 3rd respondent- complainant before the first respondent-Ombudsman. Whatever that be, the indisputable position is that the petitioners herein W.P(C) No. 28252/2004 11 were not afforded with an opportunity to defend the case put forth by the 3rd respondent herein. As noticed earlier, no provision has been brought to my notice which interdict the second respondent Panchayath from granting renewal of license. Therefore, when once the Panchayath admits the fact that the petitioners are allowed to continue in possession of the room in question after the license renewing there is no reason to interfere with the discretion exercised by the second respondent herein viz, Panchayath in letting its property in terms of the relevant provisions under the Panchayath(Acquisition and transfer of immovable property) Rules. At any rate, evidently, before relying on Rule 6 and issuance of a direction to the second respondent Panchayath to conduct auction and put the higher bidder in possession of shop in question no opportunity was granted either to the petitioners or to the second respondent Panchayath despite the specific direction of the judgment of this Court. That apart, it is evident that subsequently the Kerala Panchayath Raj (Acquisition and Disposal of Property) Rules, 2005 came into force with effect from 27.03.2006 and in terms of Rule 11 thereunder no public auction or transfer through tenders is required to be done in the case of renewal of license. True that such an W.P(C) No. 28252/2004 12 amendment was came only after Ext.P7. But, at the same time, as noticed herein before, there is no case for the 3rd respondent that the second respondent was not having any right to renew the license and that it is mandatory that immediately on expiry of the original lease period in respect of the property in question viz, the shop room No.3 public auction should have been conducted. Even if such a contention was raised by the 3rd respondent, in the light of Ext.P6 judgment, the petitioner should have been afforded with an opportunity especially in the light of Ext.P4 license and in view of the stand taken by the second respondent Panchayath then they were allowed to continue in possession of the shop room as the license in question was renewed. In view of the aforesaid circumstances, Ext.P7 calls for interference. Accordingly Ext.P7 is quashed. Since the 3rd respondent got no case that the panchayath is incompetent to renew the license and the specific stand of the panchayath is that license was earlier issued in the name of the 1st petitioner and it was renewed from time to time and there is no challenge against the renewal of license of do not find any reason to remit the matter again for fresh consideration. In short, in the circumstances, the said O.P filed before the 1st respondent must also fail. W.P(C) No. 28252/2004 13 9. In Ext.P7 it was observed that when the case was taken up for hearing a gentleman stood up and submitted that he is the lawyer representing the contesting respondents. Since he was not in his robs, I was constrained to reject the request and accordingly the contesting parties were heard in person. It is in the said context that he learned senior counsel for the petitioners challenge Ext.P7 on the ground that the counsel appear on behalf of the petitioners herein should have been permitted to represent the petitioner/contesting respondents therein and there is absolutely no reason for rejecting the request of the lawyer who sought to represent the petitioner on the sole ground that he was not on robs. In view of the quashment of Ext.P7 I do not think that the said question whether it is mandatory that an advocate should wear robs for appearing before an Ombudsman is to be decided in this case. Certainly, that question is left open The writ petition is disposed of as above. Sd/- C.T.RAVIKUMAR, JUDGE jma W.P(C) No. 28252/2004 14 APPENDIX PETITIONERS' EXHIBITS: EXT.P1: TRUE COPY OF THE PARTNERSHIP DEED DATED 15.07.2000 EXT.P2: TRUE COPY OF THE RECEIPT NO.43 EVIDENCING PAYMENT OF LICENSE FEE DATED 23.04.2002 EXT.P3: TRUE COPY OF THE RECEIPT NO.44 EVIDENCING PAYMENT OF LICENCE ISSUED IN THE NAME OF THE 1ST PETITIONER ON 1.9.2000 EXT.P4: TRUE COPY OF THE LISENCE ISSUED IN THE NAME OF THE 1ST PETITIONER ON 01.09.2000 EXT.P5: TRUE COPY OF THE ORDER OF 1ST RESPONDENT IN OP 909/2001 DATED 16.05.2002 EXT.P6: TRUE COPY O F THE JUDGMENT IN OP 18742/2002 DATED 6.1.2004 EXT.P7: TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT IN OP 909/2001 DATED 23.07.2004. RESPONDENTS EXHIBITS :NIL