IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932 WP(C).No. 3525 of 2010(M) ------------------------- PETITIONER(S): --------------- 1. PANTALOON RETAIL(INDIA) LTD., HAVING ITS REGD. OFFICE AT KNOWLEDGE HOUSE, SHYAM NAGAR, JOGESWARI (E), MUMBAI-400 060, REP. BY ITS AUTHOSIED SIGNATORY, RAJESH RAMACHANDRAN. 2. FUTURE VALUE RETAIL LIMITED, HAVING ITS REGD. OFFICE AT KNOWLEDGE HOUSE, SHYAM NAGAR, JOGESWARI (E), MUMBAI-400 060, REP. BY ITS AUTHOSIED SIGNATORY, RAJESH RAMACHANDRAN. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENT(S): --------------- KASARAGOD MUNICIPALITY, REP. BY ITS SECRETARY, KASARAGOD. ADV. SRI.V.M.KURIAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.3525/2010 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF CERTIFICATE OF INCORPORATION AND FRESH CERTIFICATE OF INCORPORATION CONSEQUENT UPON CHANGE OF NAME. P2 : COPY OF CERTIFICATE OF INCORPORATION AND FRESH CERTIFICATE OF INCORPORATION CONSEQUENT UPON CHANGE OF NAME. P3 : COPY OF AUTHORITY TO OPERATE EXECUTED BETWEEN THE PANTALOON RETAIL INDIA LIMITED AND FUTURE VALUE RETAIL LIMITED. P4 : COPY OF TRADE AND PFA LICENCE APPLICATIONS. P5 : COPY OF TRADE AND PFA LICENCE APPLICATION. P6 : COPY OF LETTER NO.PH1-9535/08 DATED 31/10/2008 ISSUED BY THE RESPONDENT. P7 : COPY OF REPLY DATED 03/12/2008 SUBMITTED BY THE PETITIONER. P8 : COPY OF LETTER NO.PH1-9535/08 DATED 27/05/2009 ISSUED BY THE RESPONDENT. P9 : COPY OF REPLY DATED 01/06/2009 SUBMITTED BY THE PETITIONER. P10 : COPY OF APPLICATION DATED 01/06/2009 SUBMITTED BY THE PETITIONER. P11 : COPY OF LETTER NO.PH2-9535/08 DATED 25/09/2009 ISSUED BY THE RESPONDENT. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.3525 of 2010 (M) --------------------------------- Dated, this the 23rd day of March, 2010 J U D G M E N T The 1st petitioner is a Company, which has established retail outlets at various places in the country. Exts.P4 & P5 are the applications made by the 1st petitioner company for Trade and PFA licences for operating their retail outlet; Big Bazaar from Square Nine Buildings, Opp. to Bus Stand, Kasaragod. Pointing out certain defects, the Municipality rejected the applications by Ext.P6. The petitioners submit that the defects were cured and the applications were resubmitted by Ext.P7. Again defects were pointed out by Ext.P8, which were cured and the applications were resubmitted by Ext.P9. 2. By this time, the period covered by Exts.P4 & P5, namely 2008-09 had expired, and therefore, the petitioners submitted Ext.P10 application for licence for the period 2009-2010. Subsequently, by Ext.P11 communication of the Secretary of the Municipality, the petitioners were informed that Exts.P4 & P5 WP(C) No.3525/2010 -2- applications were rejected. Reason stated in Ext.P11 is that the Council by its resolution No.1 dated 16/07/2009 had resolved to reject the applications on account of the objections raised by the general public, traders and trade unions of the workers. It is on receipt of Ext.P11, this writ petition is filed challenging Ext.P11 order and praying to direct the Municipality to issue licence as applied for by the petitioners in Exts.P4 & P5. 3. The application for licence is made under Section 447 of the Municipality Act. Under the said Section, the Municipality can reject the application made by the petitioners, if public interest warrants such a decision. However, the Municipality has to justify such decision assigning valid reasons in support of the decision, and that is the requirement imposed on it by Section 492(8) of the Kerala Municipality Act. 4. In this case, the only reason stated in Ext.P11 is that there was objection against granting licence to the petitioners from general public, traders and trade unions. The nature of the objection or other details are not mentioned in Ext.P11. In my view, the reason stated in Ext.P11 is totally irrelevant. There is absolutely WP(C) No.3525/2010 -3- no provision either in the Kerala Municipality Act or elsewhere, authorising a Municipality to reject an application for a licence on the ground that general public, traders and trade Unions have opposed to the grant of such licence. The Municipality Act authorises rejection of licence application if such action is necessary in public interest. Interest of trading community or trade unions or even a section of the public cannot be equated with the concept “public interest”. In fact, by rejecting the application, the Municipality was safeguarding not public interest, but only vested interest. Therefore, the reason stated in Ext.P11 is totally illegal and is unacceptable. 5. Instead of meeting the challenge against Ext.P11 on merits, The learned counsel for the Municipality sought to sustain the said order by canvassing technical arguments. According to him, Ext.P11 is only a communication of the decision taken by the Municipal Council and therefore, the challenge has to be against the resolution passed by the Municipal Council. I am not persuaded to agree with this argument. As far as the petitioners are concerned, the order that is communicated to them is Ext.P11. It may be true WP(C) No.3525/2010 -4- that the Municipality would have passed a resolution as mentioned in Ext.P11. However, that resolution has not been communicated to the petitioners. An order to be effective and binding has to be communicated. Therefore, as far as the petitioners are concerned, since the resolution is not communicated to them, the petitioners are unconcerned with that resolution, and can challenge only Ext.P11. Therefore, the petitioners are perfectly justified in challenging Ext.P11. 6. The other contention raised by the learned counsel for the Municipality is that against Ext.P11, or the resolution passed by the Municipal Council, the petitioner could have preferred an appeal to the Tribunal for Local Self Government Institutions, and that such an appellate remedy has become time barred, in view of the provisions contained in Section 509 of the Municipality Act and therefore writ petition should not be entertained. It is true that appeal could have been filed to the Tribunal for Local Self Government Institutions. However, having regard to the patent unsustainability of the reason assigned in Ext.P11, and as writ petitions dealing with similar orders of rejection have already been WP(C) No.3525/2010 -5- allowed by this Court, this Court has chosen to admit the writ petition and the Municipality was given an opportunity to file its counter affidavit. The Municipality has entered appearance though counsel and lengthy arguments were also heard. Therefore, I find absolutely no substance in the contention of the Municipality that an alternate remedy of appeal is available to the petitioners and for that reason, the petition should not be entertained. This is all the more so for the reason that by this time, the statutory remedy of appeal has also become time barred. For these reasons, I am not impressed by the argument raised by the learned counsel for the Municipality. In view of the above reasons, I quash Ext.P11 and direct the Municipality to grant licence to the petitioners as sought for in Exts.P4 & P5. This shall be done on the production of a copy of this judgment. This writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg