IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 7TH AUGUST 2008 / 16TH SRAVANA 1930 WP(C).No. 21812 of 2008(V) -------------------------------------- PETITIONER: ----------------- THALAYOLAPARAMBU GRAMA PANCHAYATH, REP. BY ITS SECRETARY, THALAYOLAPARAMBU, KOTTAYAM DISTRICT. BY ADV. SRI.LAL GEORGE SMT.ANN SUSAN GEORGE RESPONDENTS: ---------------------- 1. TRINETHRA SUPER RETAIL PVT. LTD., APPLE TOWER, 7TH FLOOR, BYE PASS ROAD, PALARIVATTOM, KOCHI-24, REP. BY ITS REGIONAL COMMERCIAL MANAGER, MR. BIJU JOSE THOMAS. 2. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM, REP. BY ITS SECRETARY, TRIDA BUILDING, MEDICAL COLLEGE.P.O, THIRUVANANTHAPURAM. * ADDL. R3 IMPLEADED ADDL. R3: KERALA VYAPARI VYAVASAYA EKOPANA SAMITHI, (A SOCIETY REGISTERED UNDER THE SOCIETY'S REGISTRATION ACT), VAIKOM TALUK COMMITTEE, VYAPAR BHAVAN, VAIKOM TALUK, THALAYOLAPARAMBU- KOTAYAM DISTRICT, REPRESENTED BY ITS PRESIDENT, GEORGE JACOB, VELLIKKAT HOUSE, THALAYOLAPARAMBU. * IS IMPLEADED AS PER ORDER DATED 04/08/08 IN I.A.9895/08. GOVERNMENT PLEADER SMT.K.R.DEEPA FOR R2 ADV. SRI.SIVAN MADATHIL FOR ADDL.R3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ ANTONY DOMINIC, J ----------------------------------------------------------- W.P.(C).No.21812/2008 ----------------------------------------------------------- Dated this the 7th day of August, 2008 JUDGMENT In this writ petition filed by the Thalayolaparambu Grama Panchayat, the prayer is to quash Ext.P6, an order passed by the Tribunal for Local Self Government Institutions disposing of Ext.P5 appeal filed by the first respondent, aggrieved by Ext.P3 intimation issued by the Panchayat rejecting their application for a D&O licence. 2. On 4.10.2007, the first respondent had applied to the Panchayat for a D&O licence in order to open a Departmental Store within its jurisdiction. The Panchayat considered the application and issued Ext.P3 dated 8.1.2008 rejecting the application. Though it is stated in Ext.P3 that the petitioner had not remitted the application fee, the main reason stated is that the Panchayat had received several WP(c).No. 21812/08 2 complaints against permitting to open the Stores by monopolistic entities and that the Panchayat had resolved not to permit opening of any such shop as it will adversely affect the interests of the retail traders of the area. It is on receipt of Ext.P3 the first respondent had filed Ext.P5 appeal before the Tribunal which was allowed as per Ext.P6 order. 3. The application for licence was submitted by the Ist respondent on 4.10.2007 and its rejection was by Ext.P3 dated 8.1.2008. In terms of section 236(3) of the Kerala Panchayat Raj Act, 1994, if order on an application is not passed and communicated to the applicant within 30 days of its receipt, or such longer period prescribed, the application is deemed to have been allowed as provided therein. In this case, since Ext.P3 communication was admittedly issued beyond the 30 days period prescribed in the aforesaid provision, the first respondent is entitled to deemed licence. This statutory provision will remain unaltered even though Panchayat has stated in Ext.P3 that along with the application, petitioner had not paid the fees. WP(c).No. 21812/08 3 The Tribunal has also entered such a finding in paragraph 10 of Ext.P6 order. This position has been accepted by the court, in the context of the provisions contained in the Kerala Municipality Act, 1994 in the case of Rajesh Ramachandran V. Corporation of Trivandrum(2008(3) KLT 419). In view of this finding itself, though the writ petition is liable to be dismissed, since arguments were addressed on other points also, I am proceeding to consider those contentions. 4. A reading of Ext.P6 order of the Tribunal shows that it had called for the files from which it was found that the Panchayat had taken Ext.P2 decision on 28.11.2007, not to grant licence to monopolistic entities to open their shops. Tribunal having found that it was based on Ext.P2 that the Panchayat issued Ext.P3 order to the petitioner, proceeded to examine the validity of Ext.P2 dated 28.11.2007 and found that there was no legal provision in the Kerala Panchayat Raj Act permitting the Panchayat to reject an application for licence on the ground that the application is made by a monopolistic entity. WP(c).No. 21812/08 4 5. The learned counsel for the petitioner contends that in Ext.P5 appeal, the challenge was against Ext.P3 dated 8.1.2008, but however, the Tribunal sat in judgment over Ext.P2 decision of the Panchayat and set aside the same although it was not called in question in the appeal. A reading of Ext.P6 shows that the learned counsel for the petitioner is justified in his submission. However, Panchayat has no case that it did not argue in defence of Ext.P2 decision. Further, the fact remains that it was relying entirely on Ext.P2 and without communicating or disclosing the same, the Panchayat had issued Ext.P3, rejecting application dated 4.10.2007 made by the Ist respondent. In so far as the Ist respondent is concerned Ext.P2 is an un- communicated decision and hence is of no consequence. Therefore, as far as the petitioner is concerned, it is immaterial that the petitioner had not challenged Ext.P2. 6. Once the files were produced by the Panchayat and as it has no case that could not argue in defense of Ext.P2, I am not prepared to invalidate Ext.P6 order, accepting the technical plea of the learned counsel for the petitioner that WP(c).No. 21812/08 5 Ext.P2 was not formaly challenged in the appeal. Statutory Tribunals, in my view, should not be fettered by strict technical rules of pleadings like a civil court and all that is expected of it is to ensure that reasonable opportunity is afforded to the contesting parties to meet the case against them. In this case, this reasonable opportunity has been extended to the petitioner and the petitioner has no case to the contrary. Therefore there is no substance in this contention. When the case was taken up, the learned counsel for the petitioner argued in defence of Ext.P3. However, apart from the reasons stated in Ext.P2, he had no other contention to support this order. 7. Learned counsel for the petitioner submitted that it was in public interest that the Panchayat had taken a policy decision to decline licence to monopolistic entities. Monopoly is a concept indicating exclusive control of a commodity or service in a particular market or a control that make it possible to manipulate prices. The petitioner has no case that the Ist respondent is either in exclusive control of any commodity or that by virtue of such control it is possible for WP(c).No. 21812/08 6 them to manipulate prices. Therefore the very use of the term 'monopolistic entity' is a misnomer. Further, even during the course of hearing, counsel could not show me any provision in the Act, enabling the Panchayat to reject an application on the ground that applicant is a monopolistic entity. 8. It may be well within the domain of the Panchayat to take policy decisions, but then, such policy decisions, should be consistant with statutory provisions. In this case it is not even pleaded or shown that any of the provisions in the Act entitles the Panchayat to deny licence on the basis that the applicant is a monopolistic entity. If that be so, the decision cannot be sustained on this ground either. 9. Learned counsel for the petitioner contends that the grant of licence to the first respondent was against public interest and that in terms of rule 6 of the D & O Licence Rules the president of the Panchayat is competent to decline licence to an applicant on that ground. 10. In view of this contentiion, it needs to be considered whether the decision of the Panchayat is liable WP(c).No. 21812/08 7 to be upheld on the ground of public interest. A reading of Ext.P2 shows that the Panchayat had received representations from the Merchants Association,TUCI and the Association of Retail Traders and it was based on their representation that the Panchayat had taken Ext.P2 decision. Therefore Ext.P2 decision was taken by the Panchayat for the reason that according to the Panchayat grant of licence would adversely affect the interest of the trading community of the area. The question is whether the interest of the trading community can be construed as `public interest'. In my view, the concept of public interest cannot be given such a restricted meaning and the interest of the trading community cannot be construed as the public interest. Public interest is a term of a wider import and has to be understood as the interest of the whole community consisting of traders, consumers etc. In the context of this case, I cannot accept the plea that by safeguarding the interest of the trading community alone, without having any regard to the interest of the consumers or other section of the society, the Panchayat can defend its WP(c).No. 21812/08 8 decision on the ground of public interest. 11. If licence is granted, at best, what would happen is that the trading community of the area will be exposed to competition offered by the first respondent. In my view, what is sought to be protected by the Traders is nothing but their commercial interest and the petitioner, which is expected to safeguard the community's interest, ought not have been a tool in their hands and declined licence to the Ist respondent on the ground that such grant will be against public interest. 12. Learned counsel for the petitioner also complains that Ext.P6 order is in excess of the powers conferred on the Tribunal in terms of the rules framed under the Kerala Panchayat Raj Act. I am not in a position to accept this contention also for the reason that the counsel could not demonstrate that limitations of the power of the Tribunal was a contention urged by the petitioner before the Tribunal. Therefore, I am not inclined to permit the petitioner to raise this plea for the first time in this writ petition. WP(c).No. 21812/08 9 I also noticed that an order similar to Ext.P6 has already been upheld with by this court in WP(c). No.14475/2008 and that the judgment has been confirmed by the Division Bench in its judgment in W.A.No.1341/2008. For these reasons, I do not find any merit in the writ petition. Writ Petition fails and is dismissed. ANTONY DOMINIC JUDGE vi. WP(c).No. 21812/08 10