IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 19TH JANUARY 2010 / 29TH POUSHA 1931 WP(C).No. 36126 of 2009(I) -------------------------- PETITIONER(S): --------------- THE CHERPLASSERY GRAMA PANCHAYATH, REPRESENTED BY ITS SPECIAL GRADE SECRETARY, CHERPLASSERY P.O., PALAKKAD. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP RESPONDENT(S): --------------- 1. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. 2. THE PRESIDENT, CHERPLASSERY GRAMA PANCHAYATH, CHERPLASSERY P.O., PALAKKAD. 3. JAFFER ALI.N.K., S/O.HAMZA, RESIDING AT NELLIKURISSY HOUSE, CHERPLASSERY P.O., PALAKKAD. 4. ANWAR ALI, S/O.KUNJIMOHAMMED, RESIDING AT KALLENKUNNAM HOUSE, CHULLIYODE P.O., NILAMBUR TALUK, MALAPPURAM. 5. HASSANKUTTY, S/O.MUHAMMED, RESIDING AT BADRIYA MANZIL, CALICUT AIRPORT P.O., MALAPPURAM. 6. SAKKAR, S/O.ABOOBACKER, RESIDING AT CHETTATHU PALLIYALIL, POTTACHIRA P.O., PALAKKAD. ADV. SRI.BABU S. NAIR FOR R3-6 GOVERNMENT PLEADER SRI.I.V.PRAMOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 36126 of 2009 APPENDIX EXHIBITS EXT.P1- TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE MANAGING TRUSTEE OF CHERPLASSERY SREE AYYAPPAN KAVU TEMPLE DATED 25.10.08 EXT.P2- TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE EXECUTIVE OFFICER OF SREE PUTHANALKKAL SREE BHAGAWATHY DEVASWAM DATED 16.12.08 EXT.P3- TRUE COPY OF THE MASS PETITION RECEIVED BY THE PETITIONER IN THE MONTH OF FEBRUARY, 2009 EXT.P4- TRUE COPY OF THE ORDER ISSUED BY THE SECRETARY OF THE PETITIONER TO THE 3RD RESPONDENT DATED 9.6.09 EXT.P5- TRUE COPY OF THE ORDER ISSUED BY THE SECRETARY OF THE PETITIONER TO THE 4TH RESPONDENT DATED 9.6.09 EXT.P6- TRUE COPY OF THE ORDER ISSUED BY THE SECRETARY OF THE PETITIONER TO THE 5TH RESPONDENT DATED 9.6.09 EXT.P7- TRUE COPY OF THE ORDER ISSUED BY THE SECRETARY OF THE PETITIONER TO THE 6TH RESPONDENT DATED 9.6.09 EXT.P8- TRUE COPY OF THE REPORT SUBMITTED BY THE HEALTH INSPECTOR DATED 15.9.09 EXT.P9- TRUE COPY OF THE REPORT SUBMITTED BY THE SUB COMMITTEE CONSTITUTED DATED 18.9.09 EXT.P10- TRUE COPY OF THE COMMON ORDER PASSED BY THE PANCHAYATH COMMITTEE DATED 8.10.09 EXT.P11- TRUE COPY OF THE ORDER PASSED BY THE FIRST RESPONDENT IN R.P.NO.96/09 DATED 19.11.09 EXT.P12- TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT IN R.P.97.09 DATED 19.11.2009 EXT.P13- TRUE COPY OF THE ORDER PASSED BY THE FIRST RESPONDENT IN R.P.98/09 DATED 19.11.09 EXT.P14- TRUE COPY OF THE ORDER PASSED BY THE FIRST RESPONDENT IN R.P.99/09 DATED 19.11.09 (TRUE COPY) P.A TO JUDGE ANTONY DOMINIC, J ------------------- W.P.(C).36126/2009 -------------------- 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. W.P.(C).36126/09 2 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 3 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 4 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 W.P.(C).36126/09 5 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 6 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