IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 25TH MARCH 2008 / 5TH CHAITHRA 1930 WP(C).No. 7698 of 2008(N) --------------------------------------- PETITIONERS: ---------------------- 1. K.P.ABDUL MUNEER, S/O.ALI HAJI, KAKKOTAKATH PUTHIYA PURAYIL HOUSE, THALIPARAMBA AMSOM, THALIPARAMBA TALUK, KANNUR DISTRICT. 2. K.P.FAKRUDHIN, S/O.ALI HAJI, KAKKOTAKATH PUTHIYA PURAYIL HOUSE, THALIPARAMBA AMSOM, THALIPARAMBA TALUK, KANNUR DISTRICT. BY ADV. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH SMT.R.LEELA RESPONDENTS: ------------------------ 1. THE THALIPARAMBA MUNICIPALITY REPRESENTED BY ITS SECRETARY, THALIPARAMBA MUNICIPALITY, THALIPARAMBA TALUK, KANNUR DISTRICT. 2. KODIYIL SAINABA, KODIYIL VEEDU, THALIPARAMBA, THALIPARAMBA TALUK, KANNUR DISTRICT. 3. THE OMBUDSMAN FOR THE LOCAL SELF GOVERNMENT INSTITUTIONS, REPRESENTED BY ITS SECRETARY, KUNNUKUZHI, VANCHIYOOR POST, TRIVANDRUM. R1 SRI.P.V.SURENDRANATH, SC R2 BY ADV. SRI.BLAZE K.JOSE BY GOVERNMENT PLEADER SRI. K.J.MOAHMMED ANZAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.7698/2008 N APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE SALE DEEDNO.1957/84 DTD. 24/05/84 OF SRO, THALIPARAMBA. EXT.P2: COPY OF THE PLAINT NO.66/2006 DTD. 30/06/06 OF THE SUBORDINATE JUDGE PAYYANNUR FILED BY THE 2ND RESPONDENT. EXT.P3: COPY OF THE WRITTEN STATEMENT DTD.27/01/2007 IN O.S.NO.66/06 BEFORE THE SUBORDINATE JUDGE, PAYYANNUR. EXT.P4: COPY OF THE RECEIPT DTD. 17/03/07 ISSUED BY THE 1ST RESPONDENT. EXT.P5: COPY OF THE ORDER DTD. 28/06/07 IN O.P.508/07 OF THE 3RD RESPONDENT. EXT.P6: COPY OF THE REJECTION ORDER OF THE RENEWAL OF THE LICENSE DTD. 25/02/2008 ISSUED BY THE 1ST RESPONDENT. 2ND RESPONDENT'S EXHIBITS: EXT.R2A: COPY OF THE INFORMATION DTD. 31/08/2007 ISSUED FROM THE SALES TAX OFFICE TALIPARAMBA UNDER RTA ACT. EXT.R2B: COPY OF THE INFORMATION DTD. 6/10/2007 ISSUED FROM THE SALES TAX OFFICER TALIPARAMBA UNDER RTI ACT. EXT.R2C: COPY OF THE FIR IN CRIME NO.125 OF 2007 OF TALIPARAMBA POLICE STATION. /TRUE COPY/ P.S.TO JUDGE Kss PIUS C. KURIAKOSE, J. ----------------------------------------------- W.P.(C)No. 7698 OF 2008 ----------------------------------------------- Dated this the 25th day of March, 2008 J U D G M E N T Under challenge in this writ petition under Article 226 is Ext.P5 order passed by the Ombudsman for Local Self Government Institutions. The second respondent filed a complaint before the Ombudsman alleging that the first respondent Secretary of Thaliparamba Municipality has cancelled licence in respect of a grocery shop which originally stood in the name of “Ali Haji and brother” and has issued licence in the name of present petitioners. The very complaint before the Ombudsman appears to have been the fall out of a dispute between the petitioners and their father Ali Haji on the one side and the 2nd respondent over the business which is being carried on in building covered by Ext.P1 document standing in the name of the present petitioners. The petitioners are children of Sri. Ali Haji and the second respondent is the sister of the above mentioned Ali Haji and this brother Muhammed Haji. The second respondent has filed Ext.P2 suit before the Sub Court, Payyannur for partitioning the assets of the partnership and for allotment of 3/80 shares of the plaintiff separately together with past and future profits as well as for a direction to the first defendant viz. Sri.Ali Haji, father of the petitioners WP(C)N0.7698/08 -2- to render accounts. Mohammed Haji, brother of the petitioner's father is no more and the other legal heirs of Sri.Mohammed Haji are arrayed as co-respondents in the writ petition. The complaint submitted by the second respondent was entertained by the Ombudsman for Local Self Government Institutions who issued notice to the Secretary of the Municipality who was sole respondent in the complaint. The Secretary on receiving notice appeared before the Ombudsman and submitted that the trade licence in respect of the grocery business which is carried on in the building has been renewed up to 2007-08. He also submitted that before the civil court Ext.P2 suit is pending between the partners of the partnership firm. Secretary submitted further that he had no idea regarding the interest of the second respondent in the business or regarding the contention that it was a partnership business which was previously being conducted in the building before he received the copy of the complaint from the Ombudsman. Lastly the Secretary submitted that till the civil dispute pending in the civil court is over, he will not renew their licence relating to the grocery business in favour of anybody. What the Ombudsman did was to record the above statement and close the complaint on the basis that the grievance of the complainant second respondent has been redressed. WP(C)N0.7698/08 -3- I have heard the submissions of Mr. Sunil Nair, learned counsel for the petitioner, Sri.Blaze K.Jose, learned counsel for the second respondent and also Sri.P.V.Surendranath, standing counsel for the Municipality. On the basis of written instructions the standing counsel for the Municipality would submit that as per the municipal records the business was being carried on by Sri.Ali Haji the father of the petitioners and on 21-3-2007 Sri.Ali Haji submitted application for cancelling the licence issued to him. After cancelling the licence Municipality issued licence to Sri.K.P.Salim, K.P. Munir and K.P.Fakrudhin the petitioners and probably another son of Sri.Ali Haji to run the grocery shop. The Secretary of the Corporation happened to state before the Ombudsman that licence will not be renewed till civil dispute is settled only because it was brought to the notice of the Municipality that a suit is pending as OS.66/08. Importantly learned counsel submitted that the current licence in respect of the business is in the name of the present petitioners. It was also submitted by him that the Municipality is not a party to the civil suit. Learned standing counsel further submitted that on 15-1-08 the second respondent has submitted a memorandum before the Municipality stating that there is dispute regarding the grocery shop and OS.66/08 is pending before WP(C)N0.7698/08 -4- the Sub Court and requesting not to renew the licence until the dispute is settled. On getting that memorandum legal advice was sought and the advice received was that licence need not be renewed. The Secretary therefore submitted before the Ombudsman that licence will not be renewed. Mr.Surendranath has placed before me copy of the request dated 20-2-07 by Ali Haji the previous licencee on the basis of which only the previous licence was cancelled. Mr.Blaze K.Jose, counsel for the respondent would submit that the very cancellation of the licence on the basis of an application submitted by Ali Haji alone was irregular. The business was not a proprietory business belonging to Ali Haji alone, but a partnership business in which the second respondent has also interest, being one of the legal heirs of late Mohammed Haji. Ombudsman therefore was justified for passing the impugned order which is on the basis of a statement submitted by the Secretary of the Municipality. The question whether the business which was being carried on in the shop building in question was a partnership business or whether it was a proprietory business belonging to Ali Haji are all questions to be adjudicated and settled in the civil suit which is pending. In my opinion in as much as the civil court has not passed restraining orders WP(C)N0.7698/08 -5- against the Municipality or any order against the petitioners continuing the business pending disposal of the civil suit the Secretary of the Corporation was not justified in filing a statement that licence will not be renewed until the civil court issues orders in that regard. Moreover it is seen that Ext.P5 order which visits the petitioners who are presently conducting business on the strength of licence issued to them with the grave consequence of being compelled to close down the business has been issued by the Ombudsman without notice to the petitioners. Under these circumstance Ext.P5 cannot be sustained. I set aside Ext.P5 and direct the learned Ombudsman for Local Self Government Institutions to issue notice to the petitioners also and take a fresh decision. In the meanwhile since the civil court has not passed any orders restraining conduct of business by the petitioners in the building in question there will be a direction to the first respondent to renew the licence on the basis of the application submitted by the petitioners subject to the result of the ongoing civil suit and also subject to the fresh orders which may be passed by the Ombudsman. (PIUS C.KURIAKOSE, JUDGE) ksv WP(C)N0.7698/08 -6-