Two writ appeals filed challenging the Single Judge's judgment directing the Municipality to adopt a 'one family-one shop room' policy and reviewing allotments. The Division Bench found no error in the Single Judge's exercise of discretion and dismissed the appeals.
Writ appeals dismissed; Single Judge's directions regarding 'one family-one shop room' policy upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
FRIDAY, THE 4TH DAY OF MARCH 2016/14TH PHALGUNA, 1937
WA.No. 449 of 2016 IN WP(C).19501/2015
AGAINST THE JUDGMENT IN WP(C) 19501/2015 DATED 18-12-2015
APPELLANT/ADDL. 3RD RESPONDENT IMPLEADED :
P.X.JAMES
S/O.LATE FRANCIS XAVIER, RESIDING AT AVITTOM VEEDU OPP.ST. ANTONY'S CHURCH, THRIKKAKARA, KOCHI-21
BY ADV. SRI.P.V.BABY
RESPONDENTS/RESPONDENT 1 AND 2 AND PETITIONER IN WPC :
R1 BY SR.GOVERNMENT PLEADER, SRI. P.I. DAVIS R2 BY ADV. SRI.LEGY ABRAHAM R3 BY SRI.S.SHARAN
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04-03-2016, ALONG WITH W.A. Nos.453/2016 & 454/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ASHOK BHUSHAN, C.J. & A.M. SHAFFIQUE, J.
W.A. Nos. 449, 453 and 454 OF 2016
JUDGMENT
Shaffique, J.
The appeals are filed challenging the common judgment dated 10.12.2015 in W.P.(C) Nos.12924/2010, 12517/2010 & 19501/2015.
respondent and additional respondents 3 to 8. The writ petition was filed by Thrikkakkara Grama Panchayat (now it is a Municipality) challenging the orders passed by the Ombudsman for Local Self Government Institutions produced as Exts.P5, P7 and P8 and for a declaration that the petitioner has every authority to proceed with Ext.P9 decision and to make allotment of shop rooms accordingly.
disclose that the Panchayat decided to construct a shopping complex in the property alloted by the Government. A decision was taken to accommodate the existing traders under the rehabilitation scheme by receiving deposits as well as rent.
WA Nos. 449, 453 & 454 of 2016
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The building was constructed and a list of traders who were conducting business in the temporary sheds where the shopping complex was proposed to be constructed were included in the list. One Francis Xavier was included as No.16 in the list. His nominee was Sri.P.X.James, his son. All the shop rooms were constructed and steps were taken to rehabilitate the eligible persons. In the mean time, there were certain disputes regarding allotment which ultimately resulted in filing of W.P.(C) No. 21513 of 2009 by which the 2nd respondent, Mary Xavier, wife of late Francis Xavier, sought for allotment of room. The matter was referred to the Ombudsman and Ombudsman has submitted a report, Ext.P5.
WA Nos. 449, 453 & 454 of 2016
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“4. As of now, all parties agree that the learned Ombudsman for Local Self Government Institutions has considered the rival contentions and submissions. There is no objection to that report, as such. The parties appear to have a few more complaints. One is that the scheme, on the basis of which, allotment was made, was not made known to the Ombudsman for Local Self Government Institutions and the learned Ombudsman was not apprised of the existence or otherwise of a scheme. This gets narrowed down to the plea that the list was unauthorisedly prepared. Obviously, the identity of the persons to be included or excluded cannot be decided by this court. It is therefore that the learned counsel in unison, submitted that guidelines may be issued by this court. I am afraid that within the parameters of writ jurisdiction, it may not be possible for the writ court to reach out to the ground realities and issue guidelines. This matter can also be looked into by the learned Ombudsman and appropriate directions could be issued.
WA Nos. 449, 453 & 454 of 2016
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No.21816 of 2009 who states that there is really no scheme at all. Writ petitions ordered accordingly, leaving open all other issues and it is directed that all allotments will be subject to further orders of the learned Ombudsman.”
Judge, Ombudsman passed orders, Exts.P7 and P8. By Ext.P7 Ombudsman confirmed that there cannot be any change in the earlier order passed in the matter and the complainant Smt.Mary Xavier has to be accommodated in the ground floor. Similar order has been passed in Ext.P8 as well. The Panchayat took up a contention that the 2nd respondent Smt.Mary Xavier is not entitled to get room under rehabilitation process as she was not a nominee as evident from the nomination given by Sri.Francis Xavier. That apart, the Panchayat has already allotted one room to Smt. Philomina James, wife of Sri.P.X.James, who is the nominee of late Francis. It is therefore contended that when rooms are being alloted on the basis of rehabilitation scheme there was no necessity to provide rooms for members of the same family.
respondent Sri.P.X. James and WA No. 454 of 2016 is also filed
WA Nos. 449, 453 & 454 of 2016
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by him against W.P.(C) No.12517 of 2015 in which he was the petitioner. He had filed the writ petition seeking for a direction to implement the order passed by the Ombudsman on 17.12.2009. W.P.(C) No.19509 of 2015, against which WA No.449 of 2016, has been preferred by one Abdul Razak in which he had sought to quash Ext.P7 notice by which he was informed that since there were disputes with respect of shop room No.40, further steps shall not be taken in the matter.
“57. In the facts and circumstances, I am of the considered view that the petitioner Municipality shall review its policy and ensure that no members of any single family living under the same roof get allotted more than one shop room. After identifying any such families, which have more than one shop room allotted to it, the petitioner Municipality shall put those persons on notice; after hearing them, it shall take an appropriate decision in tune with its policy of 'one family-one shop room.' The petitioner shall further ensure that no tenant having secured the shop room as a privilege on his or her having
WA Nos. 449, 453 & 454 of 2016
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been found mentioned in Ext.P3 should carry on business in absentia -a word of caution being that engaging assistants is different from sub-letting.
WA Nos. 449, 453 & 454 of 2016
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time it was contended that she cannot make the claim on account of the fact that Mr.P.X.James is the nominee. Mr.James has a shop room in the name of his wife Philomina James. Learned Single Judge took note of the above factual circumstances and observed at paragraph 54 as follows :
“54. Attractive as the submission seems, I am afraid, on a deeper scrutiny, it renders itself specious and fallacious, too. So long as the second respondent was alive, there was no occasion to review the policy or have any change of view on the part of this Court. Now a policy, which has a commendable object of equitable distribution of the State's largesse as its foundation, i.e., not to deprive the petty traders of their livelihood, cannot be permitted to be abused or misused, especially, in the name of succession.”
WA Nos. 449, 453 & 454 of 2016
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learned Single Judge taking into consideration the factual situation, which enables the persons who are eligible for allotment of shop rooms to get allotment and when it is found that Mr.P.X. James could not stake a claim in respect of the said shop room, we do not think that the judgment suffers from any infirmity to exercise the appellate jurisdiction.
We do not find any good ground to interfere with the
judgment of learned Single Judge and accordingly the writ appeals are dismissed.
Sd/- Ashok Bhushan, Chief Justice.
Sd/-
A.M. Shaffique, Judge.
ttb/05/03
3 issues framed by the court
Whether the High Court should interfere with the Single Judge's directions regarding the 'one family-one shop room' policy.
Whether the appellants are entitled to the shop rooms allotted to their deceased father's nominee.
Whether the findings of the Ombudsman merging into the High Court judgment preclude further review by the Single Judge.
P.X. James
Abdul Razak
State of Kerala
Thrikkakkara Municipality
Mary Xavier
Ashok Bhushan
A.M. Shaffique
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
