IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 16TH JANUARY 2009 / 26TH POUSHA 1930 WP(C).No. 18142 of 2005(I) -------------------------- AGAINST THE ORDER DATED / / IN STC 2645 /2004 IN STC.2644/2004 of J.M.F.C.,THALASSERY .................... PETITIONER(S): --------------- K.SARU, W/O.LATE KASSIM, AGED 59 YEARS, RESIDING AT NASEEMA MANZIL, KAYYATH ROAD, THALASSERY-670 101, KANNUR DISTRICT. BY ADV. SRI.R.SURENDRAN RESPONDENT(S): --------------- 1. THE THALASSERY MUNICIPALITY, REP. BY THE SECRETARY, THALASSERY MUNICIPALITY, THALASSERY, KANNUR DISTRICT. 2. THE STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT OF KERALA, LOCAL ADMINISTRATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. JUNION HEALTH INSPECTOR, THALASSERY MUNICIPALITY, THALASSERY, THALASSERY TALUK, KANNUR DISTRICT. BY G.P. SRI. P.A. SALIM. SRI.R.RAYA SHENOY FOR R1 & R3 SRI.R.PRASANTH KUMAR FOR R1 & R3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- W.P.(c) No. 18142 of 2005-I ------------------------------------------------- Dated this the 16th day of January, 2009 JUDGMENT The petitioner – a woman, faces indictment in two prosecutions – both under Sec.447 of the Kerala Municipalities Act (for short `the Act') which are now pending before the learned JFCM, Thalassery, as S.T.Nos.2644 & 2645/04. The petitioner has come to this Court with this writ petition under Art.227 of the Constitution contending that cognizance taken against her is bad in law. The validity of the prosecution under Sec.447 of the Act is questioned in the light of the amended Municipality Act, 1994 (Kerala). 2. The same question was raised in several cases and the question of law is now settled by the decision of a Division Bench in Sivadasan v. Mattannur Municipality (2008 (4) KLT 684). W.P.(c) No. 18142 of 2005-I -: 2 :- 3. The learned counsel for the respondent/complainant submits that inasmuch as the Division Bench decision is binding on this Court, the petitioner does not want to further argue the matter. The learned counsel for the respondent/complainant only prays that the option as given to the complainant in Sivadasan as per para-9 may be made available to the respondent/complainant also. In para-9 of Sivadasan it has been observed as follows: “9. In view of the principles laid down above, we feel that it is quite unsafe to sustain the prosecution of the petitioner for violation of the provisions of S.447. We, therefore, quash Ext.P1 complaint and the Writ Petition is allowed as above. This does not mean that if the petitioner runs his trade without licence, the Municipality is helpless. It can close down the shop with police assistance.” (emphasis supplied) 4. Needless to say, that option shall be made available to the respondent/complainant also. 5. In the result: (a) This writ petition is allowed. (b) S.TC.Nos.2644 & 2645/04 pending before the learned W.P.(c) No. 18142 of 2005-I -: 3 :- JFCM, Thalassery, against the petitioner herein are hereby quashed. (c) It is made clear that the options made available to the complainant in Sivadasan extracted above shall be available to the complainant/respondent herein. (d) All other options (other than the prosecution) which are available to the respondent/complainant under law can be resorted to by the respondent/complainant in accordance with law. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge W.P.(c) No. 18142 of 2005-I -: 4 :-