Kerala High Court
Shonima Thomas vs State Of Kerala on 6 February, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945
WP(C) NO. 4541 OF 2024
PETITIONER:
SHONIMA THOMAS, AGED 30 YEARS,
W/O LITHO THOMAS, MALEPARAMBIL,
BHEEMANPADY, KASARAGOD, PIN - 671326.
BY ADV MANAS P HAMEED
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY,
INFORMATION AND TECHNOLOGY DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001.
2 THE DISTRICT COLLECTOR,
CIVIL STATION, VIDYANAGAR,
KASARAGOD, PIN - 671123.
3 THE DIRECTOR, AKSHAYA PROJECT,
KERALA STATE IT MISSION,
THIRUVANANTHAPURAM, PIN - 695001.
SMT. VIDYA KURIAKOSE, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 4541 OF 2024
-2-
JUDGMENT
The petitioner says she is an 'Akshaya
Centre Entrepreneur' (ACE) and that she is now
temporarily abroad, in the United Kingdom, to
pursue her higher studies. She asserts that she
is still entitled to operate the 'Akshaya
Centre', which, she says, she is now doing
through her staff; but that when objections were
raised against this, she thought it better to
have the licence transferred in the name of one
of her employees, which, however, has not been
acceded to.
2. The petitioner explains that, in the
meanwhile, Ext.P4 order has been issued against
her by the District Collector, Kasaragod,
suspending her licence for the reason that she
is not in India and thus allegedly not in direct
control of the 'Akshaya Centre'. She thus
impugns Ext.P4 as being illegal and unlawful and
WP(C) NO. 4541 OF 2024
prays that same be set aside.
3. Sri.Manas P.Hameed - learned counsel for
the petitioner, submitted that his client is now
abroad solely for the sake of pursuing her
higher education; and that she intends to return
by the end of this year, after completion of the
same. He says that there was no interdiction or
prohibition in an 'ACE' pursuing studies abroad,
at least at the time when the licence was issued
to her; and therefore, that it is without
consideration of this, that the District
Collector has now issued the impugned order. He,
therefore, reiteratingly prayed that Ext.P4 be
set aside.
4. Smt.Vidya Kuriakose - learned Government
Pleader, however, in refutation, submitted that
there is nothing wrong in Ext.P4 because, the
District Collector has only noticed the conceded
fact that the petitioner is not in India and is
WP(C) NO. 4541 OF 2024
running her 'Akshya Centre' through a proxy,
namely one of her employees. She submitted that
this is manifest from the fact that she has
attempted to have the licence transferred in the
name of one of her employees, which has been
rejected on account of it being impermissible;
and therefore, that Ext.P4 is only an inevitable
consequence of her own conduct. She, therefore,
prayed that this writ petition be dismissed.
5. I do not propose to enter into the
merits of any of the rival contentions of the
parties at this stage because, there are several
factual issues which will require to be resolved
and looked into, before a final decision can be
taken, even by the District Collector.
6. As I have already noticed above, the
petitioner says that she is not out of India
permanently but only temporarily, to pursue her
education. She also has a case that it is not
WP(C) NO. 4541 OF 2024
prohibited for an 'ACE' to pursue studies
abroad, as long as such a person is not working;
and hence that she is entitled to continue the
operation of 'Akshaya Centre' in absentia, with
the help of staff.
7. That said, it is also crucial that the
petitioner herself has applied for a transfer of
the licence in favour of one of her employees,
which was found to be impermissible and
therefore, rejected. It is a consequence of
this, that Ext.P4 appears to have been issued.
8. But, as I have already said above,
Ext.P4 proceeds on the factum that the
petitioner is not in India and on the assumption
that she is running her Centre in absentia.
Whether there is any prohibition for an 'ACE' to
be abroad for the purpose of education and what
she can do with respect to the Centre in the
interregnum are not issues which are before this
WP(C) NO. 4541 OF 2024
Court at this time; and, in any event, Ext.P4 is
also silent about the same.
9. I am, therefore, of the firm view that
the District Collector must hear the petitioner
- either online or physically - and then take a
final decision as to her 'Akshaya Centre', so
that she will be able to place her version
before the said Authority in its proper
perspective.
Resultantly, I allow this writ petition and
order that operation of Ext.P4 will stand
deferred until such time as the District
Collector hears the petitioner and takes a
decision on her plea; thus culminating in an
appropriate order and necessary action thereon,
as expeditiously as is possible, but not later
than three months from the date of receipt of a
copy of this judgment.
Needless to say, even though I have not
WP(C) NO. 4541 OF 2024
entered into the merits of any of the rival
contentions, it will be up to the District
Collector to consider all the specific
assertions of the petitioner dispassionately;
and to thus issue an apposite order, reflecting
his opinion on each of them.
At this time, the learned Government Pleader
intervened to say that, since this Court is only
issuing the afore directions virtually as an
interim measure, the petitioner may be directed
not to conduct any verification of 'Aadhar
Cards' in the interregnum. This, of course, is a
plea that this Court deems necessary to accede
to because, the verification of 'Aadhar Cards'
is a very sensitive procedure, which cannot be
done in the absence of the licensee, normally.
It is, therefore, so ordered.
Sd/-
DEVAN RAMACHANDRAN
akv JUDGE
WP(C) NO. 4541 OF 2024
APPENDIX OF WP(C) 4541/2024
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE CONTRACT DATED
20.09.2022 EXECUTED BETWEEN THE
PETITIONER AND THE INFORMATION
TECHNOLOGY DEPARTMENT
EXHIBIT P2 A TRUE COPY OF THE COMMUNICATION BY
THE UNIVERSITY OF CHESTER
EXHIBIT P3 A TRUE COPY OF THE EMAIL DATED
23.11.2023 SENT BY THE PETITIONER TO
THE DISTRICT AUTHORITY
EXHIBIT P4 A TRUE COPY OF THE ORDER DATED
19.01.2024 ISSUED BY THE 2ND
RESPONDENT
EXHIBIT P5 A TRUE COPY OF THE JUDGMENT DATED
21.09.2023IN WP(C) 29873/2023
