IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 8TH JANUARY 2010 / 18TH POUSHA 1931 WP(C).No. 8271 of 2009(D) ------------------------- PETITIONER(S): --------------- 1. K.G.UNNIKRISHNAN, S/O.LATE K.A.GOPALAN, KAITHAKKAT HOUSE, SANKARAYYA ROAD, THRISSUR-4. 2. K.S.BEENA, D/O.SEKHARAN, KALAVAMPARA HOUSE, PARUR P.O., ERNAKULAM DISTRICT, NOW RESIDING AT KAITHAKKAT HOUSE, SANKARAYYA ROAD, THRISSUR. BY ADV. SRI.C.CHANDRASEKHARAN RESPONDENT(S): --------------- 1. THRISSUR CORPORATION, REP. BY ITS SECRETARY, CORPORATION OFFICE, THRISSUR. 2. MRS.LEENA BENNY, W/O.C.P.BENNY, IV/234, CHERPUKARAN HOUSE, THRISSUR-6. ADV. SRI.K.B.MOHANDAS,SC,THRISSUR CORPORATIO FOR R1 SRI.LELLULAL T.G.THUNDATHIL FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 8271 of 2009 APPENDIX EXHIBITS EXT.P1- TRUE COPY OF THE PARTNERSHIP EXECUTED BETWEEN THE PETITIONERS AND THE 2ND RESPONDENT EXT.P2- TRUE COPY OF THE REPRESENTATION DATED 15.2.08 SUBMITTED BY THE 2ND PETITIONER TO THE 1ST RESPONDENT EXT.P3- TRUE COPY OF THE LETTER DATED 14.2.08 SUBMITTED BY THE 2ND PETITIONER TO THE 1ST RESPONDENT EXT.P4- TRUE COPY OF THE JUDGMENT IN W.P.(C).NO.9042/08 DATED 18.3.08 OF THE BONOURABLE HIGH COURT OF KERALA EXT.P5- TRUE COPY OF THE REPRESENTATION DATED 26.4.08 SUBMITTED BY THE 2ND PETITIONER TO THE MAYOR OF THE THRISSUR CORPORATION EXT.P6- TRUE COPY OF THELETTER NO.R7-4143/08 DATED 4.6.08 ISSUED BY THE 1ST RESPONDENT TO THE 2ND PETITIONER EXT.P7- TRUE COPY OF THE JUDGMENT IN W.P.(C).21056/08 DATED 14.7.08 OF THE HONOURABLE HIGH COURT OF KERALA EXT.P8- TRUE COPY OF THE LETTER NO.R7-4143/08 DTED 1.9.08 ISSUED TO THE 2ND PETITIONER BY THE RESPONDENT EXT.P9- TRUE COPY OF THE JUDGMENT DATED 11.11.08 IN W.P.(C).29679/08 OF THE HONOURABLE HIGH COURT OF KERALA EXT.P10- TRUE COPY OF LETTER NO.R7/4143/08 DATED 26.2.09 ISSUED TO THE 2ND PETITIONER BY THE 1ST RESPONDENT (TRUE COPY) P.A TO JUDGE ANTONY DOMINIC, J ....................... W.P.(C).8271/2009 ....................... Dated this the 8th day of January, 2010 JUDGMENT 1. The controversy in this writ petition is in relation to Ext.P10. 2. The facts of the case are that Mrs.Leena Benny submitted Ext.R1(a) tender dated 8.12.1994 to the Corporation for obtaining licence in respect of Room No.28 of Sakthanthampuram Shopping Complex and the purpose indicated is for running “Super Market/Textiles/Home Appliances”. Her tender was accepted and the licence was granted and agreement was also entered into between the parties copy of which is produced as Ext.R1(b). 3. It would appear that long thereafter, the petitioners herein and Leena Benny entered into Ext.P1 partnership deed, to carry on the profession of running a 'Dental Depot' in the licensed premises. Partnership is dated 22.2.1998 and the place of business is shown as Door No. TMC. 6 XI/190/1. It is relevant to note that Smt.Leena Benny, the licensee has W.P.(C).8271/09 2 no investment in the firm and as per the deed, she is entitled to 1% profit, without any liability for loss. These terms and the subsequent conduct of parties, gives an impression that the partnership was only an arrangement to shift the business of the petitioners to the licensed premises, which would not have been otherwise possible. On 22.2.1998 itself, the partners have passed Ext.P1(4) resolution to shift the business premises to the licensed premises and accordingly Ext.P2 application was made by the 2nd petitioner requesting the 1st respondent to issue necessary licence for continuing the business at the licensed premises. 4. Licence was granted, the business was shifted and was being carried on in the licensed premises. while the position continued as such, the licensee, viz. Leena Benny, expressed her desire to retire from the partnership and therefore wrote Ext.P3 letter to the 1st respondent stating that she is the licensee and that she had no objection in issuing licence in the name of the 2nd petitioner. There was no response to Ext.P3 and that made the petitioners to file W.P.(C). 9042/2008 before this Court. That writ petition was disposed of by Ext.P4 judgment directing the 1st respondent W.P.(C).8271/09 3 to take a decision on the application made. 5. In pursuance to Ext.P4 judgment, Ext.P6 communication was issued by the Revenue Officer of the 1st respondent informing that it has been decided not to transfer the licence in favour of the 2nd petitioner, vide resolution No.56 dated 19.5.2008. Ext.P6 was challenged before this Court in W.P. (C).21056/2008 and by Ext.P7 judgment, this Court set aside Ext.P6 for the reason that it did not contain any reason for rejection and directed the 1st respondent to reconsider the matter and pass fresh orders. The matter was accordingly reconsidered and Ext.P8 communication was issued by the 1st respondent informing the 2nd respondent that as and when the Corporation takes a policy decision to transfer licences in favour of persons other than legal heirs of the licencee, request made in Ext.P2 will be considered. 6. Petitioners again approached this Court by filing W.P. (C).29679/2008 challenging Ext.P8 order. That writ petition was disposed of by Ext.P9 judgment, paragraph 5 of which reads as follows. W.P.(C).8271/09 4 “The petitioners have produced Ext.P1 partnership deed and categorically stated that the licence was taken in the name of one partner for the purpose of business of the firm. That averment is not denied in the counter affidavit. The counter affidavit does not deny that the firm was running business in the room for which licence was issued by the Corporation in the name of a partner. That being so, the Corporation was perfectly aware that the partnership firm was running the business as per the licence issued in favour of the partner of the firm. When the Corporation was aware of the fact that the licence was issued in the name of one of the partners of the firm in the capacity as a partner, there cannot be any objection on the part of the Corporation to transfer the licence in the name of another partner on reconstitution of the firm. There is no provision any wherein the Kerala Municipality Act restricting transfer of licence in favour of legal heirs of the deceased licensee only. On the other hand, the proviso to Section 215(4) gives power to the Corporation to transfer licence in the name of any other person. That being so, the reason stated in Ext.P8 is clearly unsustainable. Accordingly, Ext.P8 is quashed and the Corporation is directed to consider the application for transfer of licence filed by the 2nd W.P.(C).8271/09 5 petitioner in terms of the proviso to Section 215 (4) of the Kerala Municipality Act and in accordance with the observations made herein above. Fresh orders shall be passed within one month from the date of receipt of a certified copy of this judgment.” 7. While so, on 27.1.2009, Corporation passed Ext.R1 resolution, resolving that in the event of transfer of licences in favour of persons other than legal heirs of existing licences, licence fee will be enhanced by 200% in the event, any transfer has not taken place within two years prior to the date on which transfer was effected. On the basis of Ext.R1 resolution, Ext.P2 request made by the petitioners was considered as directed in Ext.P9 judgment and accordingly by Ext.P10, the petitioners were informed that it has been decided to transfer the licence in favour of the 2nd petitioner subject to payment of monthly licence fee of Rs.33087/-. On this basis, the 2nd petitioner was required to make security deposit of six months licence fee and remit one month's advance licence fee. She was informed that she would have to produce stamp paper worth 5% of annual licence fee and will have to pay 12.36% of service tax in addition to licence W.P.(C).8271/09 6 fee. It is challenging Ext.P10, this writ petition is filed. 3. According to the petitioners, partnership firm was the licensee and that transfer was necessitated on account of the reconstitution of the firm following the retirement of one of the partners and that therefore there is no justification for revising the licence fee treating this as a case of transfer of a fresh licence. Referring to Exts.P11, P12 and P13, learned counsel contends that the licence fee payable was only Rs.11,029/-, and that the petitioners are entitled to have the licence transferred in favour of the 2nd petitioner with the licence fee of Rs.11,029/-. It is also contended that the licence fee as revised is unreasonable and arbitrary. 4. On the other hand, the contention of the learned counsel for the Corporation is that the licence was granted in favour of Mrs. Leena Benny to use the premises for the purposes indicated in Ext.R1(a) tender submitted by her, viz., for running “Super Market/Textiles/home Appliances”. It is stated that subsequently on 22.2.1998, a proprietory concern run by the 1st petitioner was converted into a partnership firm providing 1% profit to the licensee without investment or W.P.(C).8271/09 7 liability regarding the loss. It is stated that in view of the provisions of Section 215(4) of the Kerala Municipality Act, on transfer, the licence shall be deemed to be a fresh one for all purposes. It is stated that in the case of transfer in favour of anybody other than legal heirs, same shall be subject to payment of licence fee as provided in Ext.R1 resolution by enhancing licence fee by 200% and that it is on that basis, revised licence fee has been fixed in the case of the petitioners. 5. I have considered the submissions made. 6. The only issue that needs resolution by this Court is the correctness of Ext.P10 to the extent revised licence fee has been fixed by the 2nd respondent. In Ext.P9 judgment, this Court directed the respondent to consider the application made by the petitioner for “transfer of licence” sought by the 2nd petitioner in terms of proviso to Section 215(4) of the Kerala Municipalities Act. Therefore even in that judgment this Court had accepted that the application made by the 2nd petitioner involves a transfer and that the same is to be considered in the light of Section 215(4) of the Act. If a W.P.(C).8271/09 8 licence is transferred in terms of Section 215(4) of the Act, transferred licence will be a fresh licence for all purposes and that is what the proviso to Section 215(4) says. If it is a fresh licence, it is always open to the Corporation to impose its terms and conditions and then cannot be any objection to such demand. 7. In this case Corporation has passed Ext.R1 resolution providing its terms for transfer of licences to persons other than legal heirs of existing licensees. There is no challenge to Ext.R1. Petitioner also has no case nor is there any material to conclude, that the revised licence fee fixed in Ext.P1 is inconsistent with Ext.R1 or Ext.R1(c) where the fee has been quantified. Therefore since the request involved a transfer of licence and on such transfer the licence is a fresh licence for all purposes and as the Corporation has taken a policy decision by Ext.R1 to transfer licenses imposing revision of licence fee at 200%, I see no justification for the objection raised to Ext.P10. 8. However, the petitioner submits that the rate fixed in Ext.R1 is unreasonable and arbitrary in as much as the W.P.(C).8271/09 9 licence fee has been increased from Rs.11,029/- to Rs.33,087/-. Firstly there is no challenge against Ext.R1(a). In the absence of any material or pleading in this behalf, this Court will not be justified in finally pronouncing on the contentions of the petitioner. Therefore, I leave it open to the petitioners to pursue this claim, before appropriate authorities producing necessary materials. However this direction shall not be taken as one holding that as at present petitioners are not liable to pay the licence fee as revised. 7. The writ petition is accordingly dismissed leaving open the right of the petitioners to move the 1st respondent seeking reduction of the licence fee that is fixed by Ext.R1 and Ext.P10. It is directed that in the event of the petitioners making any such application, same shall be dealt with in accordance with law and as expeditiously as possible. ANTONY DOMINIC, Judge mrcs