IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 11TH NOVEMBER 2008 / 20TH KARTHIKA 1930 WP(C).No. 29679 of 2008(G) -------------------------- PETITIONER(S): --------------- 1. K.G.UNNIKRISHNAN , S/O.LATE K.A.GOPALAN, KAITHAKKAT HOUSE SANKARAYYA ROAD, TRISSUR-4 2. K.S. BEENA, D/O.SEKHARAN, KALAVAMPARA HOUSE, PARUR P.O. ERNAKULAM DISTRICT,NOW RESIDING AT KAITHAKKAT HOUSE ,SANKARAYYA ROAD, TRISSUR-4 BY ADV. SRI.C.CHANDRASEKHARAN RESPONDENT(S): --------------- 1. THRISSUR CORPORATION, REPRESENTED BY ITS SECRETARY CORPORATION OFFICE, THRISSUR. 2. MRS. LEENA BENNY, W/O. C.P.BENNY, IV/234 CHERPUKARAN HOUSE, THRISSUR-6 ADV. SRI.K.B.MOHANDAS FOR R1 SRI.LELLULAL T.G.THUNDATHIL FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C).No. 29679/08. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE PARTNERSHIP DEED. P2. COPY OF THE REPRESENTATION DTD.15.2.08 TO R1 P3. COPY OF THE LETTER DTD.14.2.08 TO R1. P4. COPY OF THE JUDGMENT IN W.P.C.NO.9042/08 OF THIS COURT. P5. COPY OF THE REPRESENTATION DTD.26.4.08. P6. COPY OF THE LETTER DTD.4.6.08 TO P2. P7. COPY OF THE JUDGMENT IN W.P.C.NO.21056/08 DTD.14.7.08 OF THIS COURT. P8. COPY OF THE LETTER DTD.1.9.08 BY P2. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).No.29679 of 2008 ================== Dated this the 11th day of November, 2008 J U D G M E N T The petitioners and the 2nd respondent were running a partnership firm as per Ext.P1 partnership deed, from 28.2.1998 by name “Thrissur Dental Depot” at Door No.X, Room No.28, in Sakthanthampuran Shopping Complex, owned by the 1st respondent Corporation. The licence in respect of the room was issued in the name of the 2nd respondent as a partner of the firm. The 2nd respondent wanted to retire from the partnership firm. Accordingly, the 2nd petitioner, by Ext.P2 application along with Ext.P3 'No Objection Letter' from the 2nd respondent, applied to the 1st respondent Corporation for change of licence in the name of the 2nd petitioner. Since it was not considered, the petitioners approached this Court by filing W.P(C).No.9042/2008, in which by Ext.P4 judgment, the 1st respondent was directed to consider the application submitted by the 2nd petitioner. However, without assigning any reason, by Ext.P6, the application was rejected. The petitioners again filed W.P(C).No. 21056/2008 in which, by Ext.P7 judgment, this Court directed the Corporation to pass a w.p.c.29679/08 2 speaking order. Pursuant thereto, Ext.P8 order was passed again rejecting the application on the ground that the Corporation has taken a policy decision to transfer licence only in the name of legal heirs of deceased licensee and as and when a policy decision is taken for transfer of licence to others also, the 2nd petitioner's application would be considered. The petitioners are challenging Ext.P8 order in this writ petition. 2. According to the petitioners, the Corporation very well knew that the licence is issued for the purpose of running a business by the firm as per Ext.P1 partnership deed. That being so, when the partnership is re-constituted, going by the law on partnership firms, the 2nd petitioner is entitled to have the licence transferred in the name of a partner of the reconstituted firm. The petitioners further point out that the reason stated in Ext.P8 is unsustainable in view of the proviso to Section 215(4) of the Kerala Municipality Act. According to the petitioners, that proviso enables the Corporation to transfer licence in favour of any other person subject to such conditions as the 1st respondent may deem fit to impose. The petitioners would contend that the proviso does not restrict the power of the Corporation to transfer w.p.c.29679/08 3 licences only to legal heirs of deceased licensees. 3. A counter affidavit has been filed reiterating the reasons stated in Ext.P8. 4. I have considered the rival contentions in detail. 5. The petitioners have produced Ext.P1 partnership deed and categorically stated that the licence was taken in the name of one partner for the purpose of business of the firm. That averment is not denied in the counter affidavit. The counter affidavit does not deny that the firm was running business in the room for which licence was issued by the Corporation in the name of a partner. That being so, the Corporation was perfectly aware that the partnership firm was running the business as per the licence issued in favour of the partner of the firm. When the Corporation was aware of the fact that the licence was issued in the name of one of the partners of the firm in the capacity as a partner, there cannot be any objection on the part of the Corporation to transfer the licence in the name of another partner on reconstitution of the firm. There is no provision any where in the Kerala Municipality Act restricting transfer of licence in favour of legal heirs of the deceased licensee only. On the other hand, w.p.c.29679/08 4 the proviso to section 215(4) gives power to the Corporation to transfer licence in the name of any other person. That being so, the reason stated in Ext.P8 is clearly unsustainable. Accordingly, Ext.P8 is quashed and the Corporation is directed to consider the application for transfer of licence filed by the 2nd petitioner in terms of the proviso to Section 215(4) of the Kerala Municipality Act and in accordance with the observations made herein above. Fresh orders shall be passed within one month from the date of receipt of a certified copy of this judgment. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.29679/08 5