IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 5TH DECEMBER 2008 / 14TH AGRAHAYANA 1930 WP(C).No. 34027 of 2008(A) -------------------------- PETITIONER(S): 1 ---------------- T.SUBAIR, PROPRITOR, HOTEL KALPAKAVADI, G.B. ROAD, PALAKKAD. BY ADV. SRI.N.RAGHURAJ SMT.K.AMMINIKUTTY RESPONDENT(S): --------------- 1. THE PALAKKAD MUNICIPALITY, PALAKKAD, REPRESENTED BY ITS SECRETARY. 2. THE SECRETARY, PALAKKAD MUNICIPALITY, PALAKKAD. 3. T.SHIHJBUDEEN, THACHOTHU HOUSE, THALAKKADU, THEKKAN KUTTOOR P.O., MALAPPURAM DISTRICT. 4. FATHIMA, W/O. LATE AHAMMED KUTTY HAJI, THACHOTHU HOUSE, THALAKKADU, THEKKAN KUTTOOR P.O., MALAPPURAM DIST. 5. THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTIUTIONS, THIRUVANANTHAPURAM. ADV. SRI.V.CHITAMBARESH (SR.) FOR R1-2 SRI.T.C.SURESH MENON FOR R1-2 SRI.JIBU P THOMAS FOR R1-2 SRI.P.S.APPU FOR R1-2 SRI.B.GOPAKUMAR FOR R3,4 SMT.CHINCY GOPAKUMAR FOR R3,4 SRI.ASWIN GOPAKUMAR FOR R3,4 SRI.ANWIN GOPAKUMAR FOR R3,4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 34027/2008 --------------------------------------------------------------------- EXT.P1 TRUE COPY OF JUDGMENT IN W.P.C.NO. 18986/2004. EXT.P2 ORDER DT. 1-4-2005. EXT.P3 OBJECTIONS FILED BY THE PETITIONER. EXT.P4 COMPLAINT FILED BY RESPONDENTS 3 AND 4. EXT.P5 COUNTER STATEMENT IN O.P.NO. 502/2008. EXT.P6 ORDER DT. 13-10-2008 IN O.P.NO. 502/2008. EXT.P7 ORDER DT. 11-11-2008. EXT.P8 TRUE COPY OF RECEIPT. EXT.P8 COVERING LETTER DT. 26-11-2008. EXT.P8(a) RESOLUTION DT. 30-7-2008 & 12-8-2008. EXT.P9 MEMORANDUM OF SETTLEMENT DT. 2-6-2001. EXT.P10 COMMUNICATION DT. 5-7-2001. RESPONDENTS' EXHIBITS: -------------------------------------- EXT.R3(a) DOCUMENT DT. 24-10-1979. EXT.R3(b) DOCUMENT DT. 2-11-1979. EXT.R3(c) LEGAL HEIRSHIP CERTIFICATE DT. 1-1-2004. EXT.R3(d) CONSENT LETTER DT. 3-7-2001. EXT.R3(e) NOTICE DT. 23-6-2004. EXT.R3(f) NOTICE DT. 3-8-2004. EXT.R3(g) REPORT DT. 7-7-2004. EXT.R3(h) STAY ORDER DT. 12-7-2005. EXT.R3(i) COMPLAINT DT. 12-1-2007. EXT.R3(j) REPORT DT. 23-3-2007. EXT.R3(k) APPEAL DT. 12-4-2007. EXT.R3(l) STATEMENT DT. 30TH AUG. 2008. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 34027 of 2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 5th December, 2008. J U D G M E N T The petitioner holds a licence to run a hotel. The petitioner is aggrieved by Ext. P6 order of the Ombudsman passed in a petition filed by respondents 3 and 4, in which it has been directed thus: “As the lease deed in favour of the additional 5th respondent is signed by only one of the 8 legal heirs of the deceased landlord Ahamad Kutty Haji and in view of the prohibition in Section 492 of the Kerala Municipality Act, the Municipality has taken on 30.07.08 the decision not to renew the license in favour of the 5th respondent . The OP is hence closed with the direction that unless challenged before competent forum and stayed, the decision should be enforced forthwith and that respondent 5 should not be allowed to carry on his unlicensed hotel. The 2nd respondent will enforce this decision forthwith and through effective steps in accordance with the prescribed procedure.” Petitioner's contention in the O.P is that the petitioner has not been favoured with a copy of the decision dated 30-7-2008, which has been relied on by the Ombudsman. According to him, without serving him a copy of that order, it was improper for the Ombudsman to direct taking action on the basis of the same. In the above circumstances, I passed the following order on 19-11-2008 in this writ petition. “There would be an interim order directing the first respondent–Municipality to issue the order dated 30-7-2008, based on which Ext. P7 order has been passed, to the petitioner, within three days. In the meanwhile, Ext. P7 order shall not be implemented. The petitioner shall be permitted to continue business notwithstanding Ext. P7 till the expiry of the present licence period.” 2. A counter affidavit has been filed by the 3rd respondent opposing the prayers of the petitioner. In answer to the same, the petitioner has filed a reply affidavit ,along with which he has produced Ext. P8 series of documents supplied to him by the Municipality. The petitioner points out that the Municipality has not served on the petitioner the decision dated 30-7-2008. He further W.P.C. No. 34027/08 -: 2 :- points out that from Ext. P8(a), it is clear that the only decision taken by the Municipality is to the effect that the licence issued to the petitioner need not be cancelled and the renewal of the same shall only be after obtaining consent deed from Smt. Fathima and her children. Therefore, according to the petitioner, there is no prohibition against the petitioner from continuing the business on the basis of the licence, which is current till its expiry on 31-3-2009. 3. The 3rd respondent has filed a very detailed counter affidavit, which is filed on behalf of the 4th respondent also. According to him, there is collusion between the Municipality and the petitioner in this matter. He points out that as early as on 23-6-2004, by Ext. R3(e) order, the Municipality, taking into account the fact that the 4th respondent and her children are also entitled to shares in the property, on which the hotel is situated and consent had not been obtained for grant of licence in favour of the petitioner the licence issued in favour of the petitioner was cancelled, against which the petitioner approached this Court and obtained Ext. P1 judgment on the ground that before passing Ext. R3(e) order, the petitioner was not heard. Thereafter, purportedly, pursuant to that judgment, Ext. P2 order has been passed by the Municipality, withdrawing the cancellation of the petitioner's licence and deciding to renew the licence. Counsel for the 3rd respondent would point out that, that order itself would go to show collusion between the Municipality and the petitioner in so far as the objection raised by respondents 3 and 4 to the effect that their consent has not been obtained for issue of licence to the petitioner and it is on the basis of the consent deed Ext. R3(d), of the petitioner's father alone the licence had been renewed had not been even adverted to while renewing the licence. According to to learned counsel for the 3rd respondent, when the statute W.P.C. No. 34027/08 -: 3 :- prohibits issue of licence without consent from all the owners of the property, the Municipality could not have renewed the petitioner's licence. He points out that against Ext.P2, he had filed an appeal, Ext. R3(k), on which the Municipality did not pass any orders even after a hearing and that is why the 3rd respondent approached the Ombudsman by filing an OP in which only Ext. P6 order has been passed. He points out that the Ombudsman had specifically directed the Municipality that the petitioner should not be allowed to carry on his unlicensed hotel and there is nothing wrong in the same. 4. The Municipality has not filed any counter affidavit. However, they would say that the Municipality has taken a decision to consider all these contentions while the petitioner applies for renewal of the licence and that is why by resolution dated 30-7-2008, they had decided not to renew the licence in favour of the petitioner. 5. I have considered the rival contentions in detail. 6. Technically, what the petitioner says may be correct. The Municipality does not dispute the fact that the resolution adopted by the Municipality on 30-7-2008 is only not to renew the licence in favour of the petitioner. The question of renewal arises only when the period of cthe urrent licence expires on 31-3-2009. If that be so, technically the petitioner does have a licence to run the hotel and therefore, the carrying on of the hotel is not unlicensed as held by the Ombudsman in Ext. P6. However, it is a fact that respondents 3 and 4 have approached the Ombudsman on clear allegations of collusion between the Municipality and the petitioner in the matter of granting licence to the petitioner. Admittedly, the Ombudsman has passed Ext. P6 order on the assumption that the resolution dated 30-7-2008 is not to permit the petitioner to continue with the running of the hotel, W.P.C. No. 34027/08 -: 4 :- which may not be correct. That being so, the Ombudsman has not considered the essential complaint raised by respondents 3 and 4 in the matter. In the above circumstances, I am of opinion that the Ombudsman should consider that question. In the above circumstances, Ext. P6 order is quashed. Consequently, Ext. P7 also, which is the consequential order passed by the Municipality in the matter. The Ombudsman shall consider the specific complaint raised by respondents 3 and 4 in the matter of alleged collusion between the petitioner and the Municipality in the matter of granting licence without obtaining consent from all the owners of the property. The Ombudsman shall take a decision, as expeditiously as possible, after hearing the petitioner as well as respondents 3 and 4 and the Municipality. I make it abundantly clear that I have not considered the contentions of the parties on merits and it is for the Ombudsman to decide the matter independently on his own. The petitioner has got a contention that the copy of the resolution No. 4 dated 30-7-2008 has not been issued to the petitioner. The Municipality shall issue an authenticated copy of the resolution to the petitioner as well as respondents 3 and 4 within two weeks. The writ petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/ [True copy] P.S to Judge. W.P.C. No. 34027/08 -: 5 :-