IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930 RP.No. 1051 of 2008(K) ---------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.25517/2008 Dated 02/09/2008 .................... REVIEW PETITIONER/RESPONDENT NO.4 IN W.P. --------------------------------------------------------- T.K.JOHN, S/O.KURIAN, THOPPIL HOUSE, RAIL ROAD, ALUVA, ERNAKULAM-683 101. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENT(S)/PETITIONER & RESPONDENTS 1 TO 3 IN W.P.: -------------------------------------------------------------------------- 1. R.MADHAVA KUMAR, PUTHEN VEEDU, TASS ROAD ALUVA, PIN-683101. 2. OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS, REP. BY ITS SECRETARY, BARTON HILL, BUNGALOW, KUNNUKUZHI, VANCHIYOOR PO THIRUVANANTHAPURAM-695035. 3. ALUVA MUNICIPALITY, REP. BY ITS SECRETARY, MUNICIPAL OFFICE, ALUVA, PIN-683101. 4. SECRETARY, ALUVA MUNICIPALITY, MUNICIPAL OFFICE, ALUVA-683101. SRI.V.M.KURIAN FOR R3 & R4 SRI.S.P.ARAVINDAKSHAN PILLAY THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 04/12/2008, ALONG WITH RP NO.1153/08, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ANTONY DOMINIC, J. ============== R.P.NOs. 1051 & 1153 OF 2008 IN W.P.(C) NO. 25517 OF 2008 (K) ======================= Dated this the 4th day of December, 2008 O R D E R Review of the judgment in WP(C) No.25517/08 is sought for. The petitioner in RP 1051/08 is the 4th respondent in the writ petition and the petitioner in RP 1153/08 is a third party. The writ petition was disposed of by judgment dated 2nd September, 2008, holding that deemed licence as provided in Section 492(15) of the Kerala Municipality Act in respect of his private cart stand has accrued in favour of the writ petitioner. 2. The main contentions that are raised by the review petitioners are that in the facts of this case, conclusion that a deemed licence was accrued in favour of the writ petitioner is erroneous. It is also contended that there are several litigations between the parties, pending before the Civil Court and that the judgment has caused severe prejudice to them. The review petitioner in RP 1051/08 also complains that the judgment has been rendered without notice to him. 3. Since the writ petition was disposed of at the admission stage, notice was not issued to the petitioner in RP No.1051/08. Taking RP Nos.1051 & 1153/08 :2 : into account his complaint in this regard, arguments were heard at length. 4. Before I deal with the contentions raised, it is appropriate that the bare facts are considered. It is stated that the property in respect of which, licence was sought by the writ petitioner, for the establishment of a private cart stand and the property that belongs to the review petitioners were part of a common family property which was partitioned among the members. The review petitioner in RP 1051/08 is an assignee of the plot. In so far as the review petitioner in RP 1153/08 is concerned, she is one of the share holders. 5. It is stated that the entire property has a common access to the public road having a width of 15 links. It is stated that coming to know that in respect of his cart stand, the writ petitioner had applied to the Secretary of the Aluva Municipality for a licence, the review petitioners submitted complaints on 12/12/2007 and 15/1/2008. It is stated that on receipt of the complaints, the Municipality had deputed an Inspector and that it was while so that by Ext.P2, the writ petitioner applied for licence for the year 2007- 08. It is submitted that acting upon the complaints they made, the Municipality issued Ext.P3 stop memo against which the writ petitioner had filed Ext.P4 appeal to the Municipal Council. It is stated that Municipal RP Nos.1051 & 1153/08 :3 : Council entertained the appeal and as can be seen from Ext.P5, a sub committee of the Municipal Council was formed and it was also resolved to stay all further proceedings on Ext.P2 application. 6. It is stated that while the matter stood thus, the writ petitioner submitted Ext.P17 application for renewal of the licence for the year 2008- 09 also. Even during this period, according to the review petitioners, cart stand was being operated without any licence and therefore they moved the Ombudsman, which passed Ext.P8 order on 16/7/08 directing that without licence the cart stand shall not be operated and that before licence is granted, review petitioners shall also be heard. It is stated that on 16/7/2008 itself, the Municipality issued Ext.P11 stop memo and thereupon further operation of the cart stand had to be stopped. According to them, while the parties were contesting the matter as above, this writ petition was filed and without notice to them, judgment was obtained on 2/9/2008, declaring that a deemed grant of licence had accrued in favour of the writ petitioner. In this context, it should be stated that according to the writ petitioner, Ext.P5 was passed in the appeal filed by him against Ext.P4 stop memo only and had nothing to do with his application for licence. It is also his case that though he had applied to get Ext.P8 order vacated, but was RP Nos.1051 & 1153/08 :4 : unsuccessful and therefore, had to file the writ petition. 7. As already noticed, the main contention raised is with reference to Ext.P5, the proceedings of the Municipal Council. The contention raised is that since the Municipal Council had stayed further proceedings on the application made by the writ petitioner for licence, it was not possible for the Secretary to have passed the order as required in Section 475 or 492 (15) of the Kerala Municipality Act and therefore the writ petitioner could not have pleaded that a deemed licence had accrued in his favour. 8. Section 475(2) provides for an application for licence by an owner of a place in respect of which licence is sought. It provides that an application shall be made not less than 6 weeks before such place is proposed to be opened as a cart stand. Counsel for the review petitioners contend that it is the admitted case of the writ petitioner that the cart stand was operational since 1980. It is contended that for that reason the application would not have been maintainable under Sub Section 2. It is also contended that by virtue of sub section 3, it is for the Secretary to exercise his discretion on the application and pass orders and for that reason also, there could not have been a deemed grant. 9. However, counsel for the Municipality submits that even if the RP Nos.1051 & 1153/08 :5 : cart stand was operational as pleaded in the writ petition, fact remains that it was not a licenced one. According to him, the first application for licence is Ext.P2 and therefore Ext.P2 application was treated as one filed under sub section 2. In the light of the stand taken by the Municipality that the application was entertained under 475(2), I am not able to accept the plea of the counsel for the review petitioners that the application was not entertainable under Section 475(2). 10. Next is the contention that since order is to be passed applying the discretion of the Secretary as provided under Sub Section 3, there is no question of deemed grant as provided under Section 492(15). Section 492 (15) provides that if orders on an application are not communicated within 30 days of receipt by the Secretary, the application shall be deemed to have been allowed. True, an element of discretion is conferred in Section 475(3). But on a combined reading of Section 475(3) and 492(15), the only reasonable way of concluding the issue is that applying the discretion as provided in sub section 3 of 475, the Secretary should decide on the application within 30 days and if the Secretary or the Council as in this case, does not decide on the application and communicate the decision within that period, deemed licence will accrue in favour of the applicant. Therefore, RP Nos.1051 & 1153/08 :6 : I am not impressed by the contention that deemed grant as per Section 492 (15) is inapplicable to the case of the writ petitioner. 11. Then it was contended that since the Municipal Council had stayed further proceedings on the application, by Ext.P5 proceedings, the Secretary was prevented from passing order on the application. The argument was that since such an order was passed in the appeal filed by the writ petitioner, it was not open to him to claim grant of deemed licence. In so far as this contention is concerned, it should be noticed that, if not the Secretary, the Municipal Council was seized of the matter. Therefore, the Council should have passed order within the time allowed in Section 492(15) of the Act. Since that was not done, deemed licence has accrued in favour of the writ petitioner. I am also not impressed by the contention that Ext.P5 order was passed in an appeal filed by the petitioner. This is for the reason that the appeal was filed against Ext.P4 stop memo and if the Municipality has taken over the very application itself and passed Ext.P5 order, that cannot cause any prejudice to the petitioner. 12. The other contention raised is that since the common access that they have is having a width of only 15 links, without committing tresspass into the petitioner's properties, heavy vehicular traffic is RP Nos.1051 & 1153/08 :7 : impossible. The argument raised is that by virtue of the judgment and the licence that is granted on 13/10/2008, in pursuance to the judgment, tresspass is facilitated and legitimised. I am not in a position to accept this contention either. The licence granted is in respect of the plot of land which belongs to the writ petitioner. If the review petitioners case is that the access that is provided to that licenced plot is insufficient and there is a possibility of tresspass into their land or actual tresspass is committed, that is an issue that has to be adjudicated before the Civil Court and parties are already before the Civil Court. The grant of licence will in no manner affect any of their civil rights, which parties are to agitate and get adjudicated by the Civil Court and the licence will not facilitate or justify or legitimise tresspass or any other violations, as is now canvassed before me. 13. Therefore, the contentions that are raised are only to be rejected. 14. The counsel for the writ petitioner informs that on 13/10/2008, in pursuance to the judgment, licence has been granted. Although I have rejected the contentions raised in the review petition, if the petitioners are aggrieved by the grant , it is open to them to move the appropriate statutory authority. In view of the above, I clarify that none of the findings RP Nos.1051 & 1153/08 :8 : in the judgment or this order, will bind the appellate authority while considering the correctness or otherwise of the licence that is granted and if an appeal is filed against the licence that is granted, that will be decided untramelled by any of the observations that are made by this Court. 15. At this stage, the review petitioners complain that they are not furnished a copy of the licence, in which event alone, they can pursue the appellate remedies that are available. In view of this, it is directed that the Municipality shall, within 10 days of production of a copy of this order make available copy of the licence that is granted to the writ petitioner, so that the review petitioners can pursue their statutory remedies. Subject to the above order, the Review petitions are dismissed. ANTONY DOMINIC, JUDGE Rp