Binthya C vs State Of Kerala
2023 Latest Caselaw 10540 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
     MONDAY, THE 16TH DAY OF OCTOBER 2023 / 24TH ASWINA, 1945
                       WP(C) NO. 21634 OF 2023
PETITIONERS:

    1     BINTHYA C, AGED 39 YEARS, W/O SUDHEER KUMAR VV,
          VANIYAM VEETTIL H O, PALAYAN NADA P O, IRINGAL
          VIA, VADAKARA, KOZHIKKODE DISTRICT, PIN - 673521

    2     BINDHU B KURUP, AGED 47 YEARS, W/O DINESH BABU T T,
          THAZHETHARIPPATT, PATHIYARAKKARA P O PUTHUPPANAM
          VIA, VADAKARA, KOZHIKKODE, PIN - 673105

          BY ADV PHILIP M.VARUGHESE


RESPONDENTS:

    1     STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO
          GOVERNMENT, GOVERNMENT OF KERALA, SECRETARIAT,
          THIRUVANANTHAPURAM - 695 001

    2     THE DIRECTOR, AKSHAYA PROJECT, AKSHAYA STATE PROJECT
          OFFICE. VRINDAVAN GARDENS, POTTAKKUZHI, PATTOM P O
          THIRUVANANTHAPURAM, PIN - 695001

    3     THE DISTRICT COLLECTOR, (DISTRICT CHIEF COORDINATOR
          OF AKSHAYA & CHAIRMAN OF DISTRICT E-GOVERNANCE S
          OCIETY) COLLECTORATE, KOZHIKKODE, PIN - 673104

    4     THE DISTRICT PROJECT CO-ORDINATOR, AKSHAYA PROJECT
          OFFICE, KOZHIKKODE, PIN - 673104

    5     VADAKARA MUNICIPALITY, REP BY ITS SECRETARY,
          VADAKARA, KOZHIKKODE, PIN - 673101

          SRI. SUNIL K.KURIAKOSE, GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
16.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WPC 21634/23
                                            2

                                JUDGMENT

The petitioners call into question Exts.P7 and P8 orders,

whereby, the application of the 1st petitioner - who ran an 'Akshaya

Centre' - for transfer of her license in favour of the 2 nd petitioner

has been rejected; and subsequently, the said license itself has been

terminated. They say that the 1 st petitioner obtained Government

employment, on being advised by the Kerala Public Service

Commission in the year 2018; and subsequently, moved an

application for the transfer of license in favour of the 2 nd petitioner,

but was rejected, without adverting to any of the relevant aspects,

through Ext.P3 dated 28.01.2020.

2. The petitioners say that immediately thereafter, COVID-19

pandemic disruptions started, thus incapacitating them from taking

any action and that when the pandemic subsided, they were able to

obtain necessary recommendations from the Vadakara Municipality,

as evident from Ext.P4 and thus approached the competent

Authority again. They allege that, however, without considering any

of the germane aspects in its proper perspective, Exts.P7 and P8 WPC 21634/23

have been issued; thus constraining them to approach this Court

through this Writ Petition.

3. Sri.Philip M. Varghese - learned counsel for the

petitioners, however, pointed out that, as evident from Ext.P7, the

only reason cited by the competent Authority, in rejecting the 1st

petitioner's application for transfer of license in favour of the 2 nd

petitioner, is that the latter is not her close relative and hence,

contrary to the Government Order. He pointed out that, as a

consequence, Ext.P8 order has been issued cancelling the license;

and argued that both these actions are illegal because Ext.P6

Government Order of the year 2019 makes it clear that, in cases

where the licensee does not have an immediate family member,

he/she can choose another person who is competent, and that is

what has been done by the 1st petitioner. He thus prayed that

Exts.P7 and P8 be set aside.

4. Sri.Sunil Kumar Kuriakose - learned Government Pleader,

in response, submitted that the 1st petitioner's actions clearly show

that she was not serious about the transfer of license, particularly

when she was in a Government employment from the year 2018. He WPC 21634/23

submitted that her running of the 'Akshaya Centre' through the 2 nd

petitioner, during the entire period is illegal; and that this is evident

from the fact that Ext.P3 was issued as early as in the year 2020 -

no action having been taken by her to obtain recommendation from

the competent Municipality until 08.03.2022, which is manifest from

Ext.P4. He added that, since the terms of the contract - originally

entered into with the 1st petitioner by the competent Authority - did

not contain any stipulation that she can transfer the 'Akshaya

Centre' to anyone else other than a close relative, Exts.P7 and P8

are irreproachable. He thus prayed that this Writ Petition be

dismissed.

5. I am afraid that I cannot find full favour with the afore

submissions of the learned Government Pleader because, as rightly

argued by the learned counsel for the petitioners, soon after Ext.P3

had been issued, COVID-19 pandemic disruption had occurred, in

March 2020. The 1st petitioner, thereupon, obtained Ext.P4

recommendation from the Vadakara Municipality; but this has been

disregarded by the competent Authority while issuing Exts.P7 and

P8, allegedly relying upon the terms of the original contract entered WPC 21634/23

into by her. However, it is evident - as is admitted - that Ext.P5

Government Order was issued on 30.10.2019, relaxing the terms of

transfer, making it available to a licensee to apply for it even in

favour of a non-relative, provided necessary criteria are established

and proved.

6. In the case at hand, the 1 st petitioner has not been given

any opportunity of proving that she had no immediate relatives to

seek transfer of license, particularly when the Government Orders

permit such transfer, on the licensee obtaining a Government

employment. Since this aspect is admitted by the learned

Government Pleader, I am of the firm view that the matter requires

to be reconsidered by the competent Authority.

In the afore circumstances, I allow this Writ Petition and set

aside Exts.P7 and P8; with a consequential direction to the 2nd

respondent - Director, Akshaya Project, to hear the petitioners on

the transfer application preferred by them, adverting to Ext.P4

recommendation of the Municipality and Ext.P5 Government Order;

thus culminating in an appropriate order and necessary action

thereon, as expeditiously as is possible, but not later than three WPC 21634/23

months from the date of receipt of a copy of this judgment.

Needless to say, until such time as the afore exercise is

completed and the resultant order communicated to the petitioners,

running of the 'Akshaya Centre' by the 2 nd petitioner will not be

interdicted by the respondents, however, subject to all other

requirements being satisfied.

Sd/-

RR                                     DEVAN RAMACHANDRAN
                                              JUDGE
 WPC 21634/23


                 APPENDIX OF WP(C) 21634/2023

PETITIONER EXHIBITS
Exhibit P 1         A TRUE COPY OF THE REQUEST MADE BY THE 1ST
                    PETITIONER THROUGH THE 4TH RESPONDENT
                    DATED 15/10/2018
Exhibit P 2         THE E-MAIL COMMUNICATION WHICH IS RECEIVED
                    BY THE 1ST PETITIONER DATED 19/11/2019
                    WHICH SENT ON 15/10/2018 BY THE 1ST
                    PETITIONER
Exhibit P 3         A TRUE COPY OF THE LETTER SERVED ON THE
                    PETITIONER DATED 28/1/2020
Exhibit P 4         A TRUE COPY OF THE RESOLUTION SERVED
                    PASSED BY THE 5TH RESPONDENT DATED
                    8/03/2022
Exhibit P 5         THE GOVERNMENT ORDER DATED 30/10/2019
Exhibit P 6         A TRUE COPY OF THE GOVERNMENT ORDER DATED
                    30/07/2021
Exhibit P 7         A TRUE COPY OF THE ORDER DATED 7/05/2023
Exhibit P8          A TRUE COPY OF THE ORDER DATED 9/06/2023
Exhibit P 9         THE TRUE COPY OF THE REPRESENTATION MADE
                    BY THE PETITIONER DATED 16/06/2023