Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.V.N.BHATTI & THE HONOURABLE MR.JUSTICE BASANT BALAJI TUESDAY, THE 6TH DAY OF JUNE 2023 / 16TH JYAISHTA, 1945 WA NO. 649 OF 2023 AGAINST THE ORDER/JUDGMENT WP(C) 19654/2022 OF HIGH COURT OF KERALA APPELLANT: DIVYA JAMES AGED 32 YEARS D/O JAMES, AKSHAYA ENTREPRENEUR, AKSAHYA CENTRE NO. KNR076, P.K COMPLEX, SAMA BAZAR, SREEKANDAPURAM P.O, SREEKANDAPURAM AMSOM, TALIPARAMBA TALUK, KANNUR DISTRICT, PIN - 670631 BY ADVS. ALEX.M.SCARIA BEAS K. PONNAPPAN A.J.RIYAS SARITHA THOMAS ALEN J. CHERUVIL SAHL ABDUL KADER BABU PAUL(K/107/1986) RESPONDENTS:
1 MUNEER A.P AGED 46 YEARS S/O LATE USSAN KUTTI, AKKARAMMAL PUTHIYAPURAYIL, KOTTOORVAYAL, SREEKANDAPURAM P.O, KANNUR, PIN - 670631 2 DISTRICT COLLECTOR CHAIRMAN OF DISTRICT E-GOVERNANCE SOCIETY AND AKSHAYA DISTRICT COORDINATOR, OFFICE OF DISTRICT COLLECTOR, COLLECTORATE, KANNUR, PIN - 670002 3 DISTRICT PROJECT MANAGER AND ASSISTANT DISTRICT COORDINATOR AKSHAYA DISTRICT PROJECT OFFICE, RUBCO BUILDING, KANNUR, PIN - 670002 4 THE SECRETARY SREEKANDAPURAM MUNICIPALITY, SREEKANDAPURAM P.O, KANNUR, PIN - 670631 5 THE DIRECTOR AKSHAYA PROJECT, AKSHAYA STATE PROJECT OFFICE, VRINDAVAN GARDENS, POTTAKUZHI, PATTOM P.O,
THIRUVANANTHAPURAM, (SOUGHT TO BE IMPLEADED)., PIN - BY ADVS. P.PARVATHY NIRMAL S VEENA HARI(k/775/2006) OTHER PRESENT: C E UNNIKRISHNAN- SPL GP, JAYAKUMAR NAMBOODIRI-SC THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06.06.2023, ALONG WITH WA.653/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.V.N.BHATTI & THE HONOURABLE MR.JUSTICE BASANT BALAJI TUESDAY, THE 6TH DAY OF JUNE 2023 / 16TH JYAISHTA, 1945 WA NO. 653 OF 2023 AGAINST THE ORDER/JUDGMENT WP(C) 21087/2022 OF HIGH COURT OF KERALA APPELLANT: DIVYA JAMES AGED 32 YEARS D/O JAMES, AKSHAYA ENTREPRENEUR, AKSAHYA CENTRE NO. KNR076, P.K COMPLEX, SAMA BAZAR, SREEKANDAPURAM P.O, SREEKANDAPURAM AMSOM, TALIPARAMBA TALUK, KANNUR DISTRICT, PIN - 670631 BY ADVS. ALEX.M.SCARIA BEAS K. PONNAPPAN A.J.RIYAS SARITHA THOMAS ALEN J. CHERUVIL SAHL ABDUL KADER BABU PAUL(K/107/1986) RESPONDENTS: 1 DISTRICT COLLECTOR KANNUR DISTRICT, CIVIL STATION, KANNUR, PIN - 670002 2 DISTRICT PROJECT OFFICER AKSHAYA DISTRICT PROJECT OFFICE, RUBCO HOUSE, SOUTH BAZAR, KANNUR, PIN - 670631 3 DIRECTOR KERALA STATE INFORMATION TECHNOLOGY MISSION PATTOM P.O. THIRUVANANTHAPURAM, PIN - 695004 4 STATE OF KERALA , REPRESENTED BY THE PRINCIPAL SECRETARY, DEPARTMENT OF INFORMATION TECHNOLOGY, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
5 A.M. HAMEED KUTTY AGED 55 YEARS AMANATH MUKREERAKATH HOUSE, CHENGALAYI P.O., KANNUR DISTRICT, PIN - 670631 6 A.P. MUNEER AGED 45 YEARS FORMER MUNICIPAL COUNCILOR, AKKARAMMAL PUTHIYAPURAYIL HOUSE, SREEKANDAPURAM P.O., KANNUR DISTRICT, PIN - 7 SREEKANDAPURAM MUNICIPALITY REPRESENTED BY ITS SECRETARY, KANIYARAVAYAL, SREEKANDAPURAM ROAD, SREEKANDAPURAM, KANNUR, PIN - BY ADVS. NIRMAL S VEENA HARI(K/775/2006)
OTHER PRESENT: PRAVEEN HARIKUMAR C E UNNIKRISHNAN- SPL GP, JAYAKUMAR NAMBOODIRI-SC THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06.06.2023, ALONG WITH WA.649/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
(Dated this the 6th day of June 2023) Basant Balaji J., The petitioner, being aggrieved by the judgment in W.P.C No.21087 of 2022, wherein she had sought for a writ of Ceritorari quashing Ext.P2 order, has filed Writ Appeal No. 653 of 2023. W.A No.649 of 2023 is filed against the
judgment in W.P.C No. 19654 of 2022 which was filed by the
1st respondent for writ of mandamus directing the District Collector to implement Ext.P3 order forthwith.
2. The brief facts in W.P.(C).No. 21087 of 2022 are as
follows:- The appellant was running an ‘Akshaya Centre’ at Sreekandapuram Municipality in Kannur District with registration No.KNR076. Originally the centre was allotted to Mrs. Anusha Joseph and it was transferred to the appellant on 03.03.2018. While so, on 31.05.2022, the 1 st respondent had issued an order canceling the transfer of the Akshaya Centre from Anusha Joseph to the appellant. The 2nd respondent forwarded the order of the 1 st respondent to the 3rd respondent for effecting the cancellation. The petitioner challenges the order of the District Collector canceling the transfer in the name of the appellant.
3. The facts in W.P.C 19654 of 2022 are as follows:-
The petitioner is the former Chairman of Health Standing Committee of Sreekandapuram Municipality for the term 2015-2020. During his tenure as counsellor, he got several complaints from the public regarding the Akshaya Centre run by the 4th respondent who is the present appellant. Several complaints were made before respondent Nos.2 and 3 and finally a detailed complaint was filed before the 1st respondent on 25.06.2021 and since no action was taken by the 1st respondent, he approached this Court by filing W.P.(c) No. 13286 of 2021 for a direction to consider the representation filed by him within a time limit and take effective action against the Akshaya Centre conducted by the appellant.
4. This Court, vide judgment dated 10.02.2022,
directed the District Collector to consider the serious objections made by the petitioner and pass appropriate orders after giving opportunity of hearing to the parties concerned.
5. In compliance of the judgment of the learned
Single Judge, hearing was conducted by the 1 st respondent and after examining the documents, cancelled the proceedings by which the transfer was effected in the name of the 4th respondent. The order of the District Collector cancelling the transfer was produced as Ext.P3 and the prayer sought is for implementation of Ext.P3 forthwith.
6. The learned Single Judge considered both the
Writ Petitions together and a common judgment was passed dismissing W.P.(C). No. 21087 of 2022 and directing the State Co-ordinator to take a decision finally in respect of Akshaya Centre in question, within one month from the date of receipt of copy of the judgment.
7. In compliance of the direction of this Court, the
competent authority confirmed the order of the District Collector. The contention raised by the counsel of the appellant is that the District Collector has no power or jurisdiction to pass order cancelling the transfer and therefore, the order passed is without jurisdiction.
8. The perusal of the order under challenge would show that the District Collector passed the order on the complaint made by the petitioner in W.P.(C) No.
procedure by which the transfer was effected is not in order
and hence, the transfer was set aside. The Senior Government Pleader submits that the competent authority for effecting cancellation is the additional 5 th respondent, who has already confirmed the order.
9. As directed by this Court, the Government
pleader produced the record and we perused and notice that the District Collector passed order as directed by this court in W.P ( C ) No 13286 of 2021. Merely because a direction has been issued by this Court under Article 226 of the Constitution of India, the District Collector cannot be empowered to do more than what he was called upon to do under the scheme. We have also perused the order passed by the competent authority accepting the order of the District Collector and canceling the transfer. The District Collector has passed the order on the directions of this court. The competent authority for the cancellation is the 5th respondent. We find that the competent authority has simply accepted the order passed by the District Collector and has not applied its mind to arrive at the conclusion. Therefore, we are of the considered opinion that the competent authority has to consider the issue afresh. The Collector’s decision is treated as a preface or a report for consideration by the competent authority. The competent authority will hear all the parties including the petitioner in W.P.(C).No.19654 of 2022, Smt. Divya James and the Municipality, excluding Hameed Kuty who is the 5 th respondent in W.A. No. 653 of 2022, and takes a decision within 4 weeks from today.
10. This Court has already passed an order allowing Smt. Divya James to continue with the centre. The said
order will continue till the final decision is taken by the
competent authority as state above. Writ appeals are disposed of. Sd/- S.V.N.BHATTI, CHIEF JUSTICE Sd/- BASANT BALAJI, JUDGE SM APPENDIX OF WA 653/2023 PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE ORDER PASSED BY THE DIRECTOR, AKSHAYA STATE PROJECT DATED ADMIN(ASPO)/227 Annexure A2 TRUE COPY OF THE CERTIFICATE DATED 14/11/2016 ISSUED TO ANUSHA JOSEPH BY THE MINISTRY OF ELECTRONICS AND INFORMATION TECHNOLOGY Annexure A3 TRUE COPY OF G,O (RT) NO. 171/2013/ITD DATED FORMAT FOR AKSHAYA CENTRE ENTREPRENEURS BY THE INFORMATION DEPARTMENT Annexure A4 TRUE COPY OF THE APPLICATION SUBMITTED BY
ANUSHA JOSEPH BEFORE SREEKANDAPURAM MUNICIPALITY DATED 09/02/2018 FOR GETTING AN NOC TO SUBMIT BEFORE DISTRICT PROJECT MANAGER, KANNUR Annexure A5 TRUE COPY OF THE COUNCIL AGENDA SLIP BEARING NO. B3/1473/18 OF SREEKANDAPURAM MUNICIPALITY
Annexure A6 TRUE COPY OF THE DECISION NO. 8 DATED Annexure A7 TRUE COPY OF THE RECORDED MINUTES DATED Annexure A8 TRUE COPY OF THE SAID CERTIFICATE ISSUED BY
THE DIRECTOR, KERALA STATE I.T MISSION AND AKSHAYA Annexure A9 TRUE COPY OF THE REPLY DATED 10/06/2022 ISSUED TO THE 1ST RESPONDENT MUNICIPALITY Annexure A10 TRUE COPY OF GO(MS) NO. 19/05/ITD DATED THE LIST OF LOCATIONS OF APPROVED AKSHAYA CENTERS IN KANNUR DISTRICT Annexure A11 TRUE COPY OF THE APPLICATION UNDER RIGHT TO
INFORMATION ACT DATED 03/10/2018 ALONG WITH ITS REPLY DATED 16/10/2018 RECEIVED FROM DISTRICT PROJECT MANAGER, AKSHAYA KENDRA BEARING NO. 204/08/AKSHAYA REGARDING THE ALLOCATION OF AKSHAYA CENTERS
Annexure A12 TRUE COPY OF THE REPLY DATED 27/02/2021 GIVEN BY ME TO THE SECRETARY OF 1ST RESPONDENT WITHOUT ENCLOSURES RESPONDENT ANNEXURES ANNEXURE-R-7a TRUE COPY OF THE LICENSE NUMBER 367/2017-2018 Annexure-R-7b TRUE COPY OF THE APPLICATION DATED 09.02.2018 OF SMT ANUSHA JOSPEH ANNEXURE-R-7c TRUE COPY OF THE CERTIFICATE DATED 08.02.2018 PRODUCED BY SMT ANUSHA JOSPEH ALONG WITH HER APPLICATION