Remanded

Nusrath N v. Under Secretary

Kerala HC3 Nov 2023WP(C)/812/2022

Case brief

AI extract

What is this about?

The High Court disposed of two writ petitions concerning the transfer of an Akshaya Centre license. Ruling that the machinery cannot be forced where the original transferring party withdrew consent, the Court directed a hearing between the petitioner and the third respondent to decide if an enquiry is required or a mere cancellation of the rejection order is warranted.

What did the court decide?

Remitted to the 1st Respondent to hear the petitioner and 3rd respondent and decide on modification of impugned orders or issuance of a fresh notification with preference for the petitioner.

Nusrath N Vs Under Secretary — Kerala HC (2023) — LawSathi Research

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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FRIDAY, THE 3RD DAY OF NOVEMBER 2023 / 12TH KARTHIKA, 1945
WP(C) NO. 27875 OF 2020

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PETITIONER:

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NUSRATH N, AGED 31 YEARS, W/O. SALOOB M.P,
1/1, MANNILPADIKKAL, PULLANNOOR, MALAYAMMA,
KUNNAMANGALAM, KOZHIKODE DISTRICT 673 601

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BY ADVS.
SANTHARAM.P
SMT.REKHA ARAVIND
SRI.PAUL P. ABRAHAM
SRI.P.G.GOKULNATH

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RESPONDENTS:

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1 THE DIRECTOR, AKSHAYA STATE PROJECT OFFICE, KOCHUMADATHIL BUILDING, T.C 25/2241, MANJALIKULAM ROAD, THAMPANOOR, TRIVANDRUM 695 001

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2 THE DISTRICT COLELCTOR AND CHIEF COORDINATOR, AKSHAYA PROJECT, KOZHIKKODE, CIVIL STATION, WAYANAD ROAD, ERANHIPPALAM, KOZHIKKODE 673 020

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3 ALTHAF P.K,PUTHALATH, THEECHIYAD, KALLURUTTY, KOZHIKKODE 673 582

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4 MUKKAM MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUKKAM P.O, KOZHIKKODE DISTRICT 673 602

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5 SECRETARY, MUKKAM MUNICIPALITY, MUKKAM P.O, KOZHIKKODE DISTRICT 673 602

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BY ADVS.
SURESH KUMAR KODOTH
SRI. P.S.APPU, GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
03.11.2023, ALONG WITH WP(C)No.812/2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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WPC 27875/20 & 812/22

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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FRIDAY, THE 3RD DAY OF NOVEMBER 2023 / 12TH KARTHIKA, 1945
WP(C) NO. 812 OF 2022

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PETITIONER:

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NUSRATH N, AGED 31 YEARS, W/O. SALOOB M.P,
1/1, MANNILPADIKKAL, PULLANNOOR, MALAYAMMA,
KUNNAMANGALAM, KOZHIKODE DISTRICT – 673601.

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BY ADVS.
SANTHARAM.P
REKHA ARAVIND
P.G.GOKULNATH

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RESPONDENTS:

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1 UNDER SECRETARY, ELECTRONICS & IT DEPARTMENT, 1ST FLOOR, MAIN BLOCK, SECRETARIAT, THIRUVANANTHAPURAM – 695001.

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2 THE DIRECTOR, AKSHAYA STATE PROJECT OFFICE, KOCHUMADATHIL BUILDING, T.C. 25/2241, MANJALIKULAM ROAD THAMPANOOR, TRIVANDRUM – 695001.

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3 THE DISTRICT COLLECTOR AND CHIEF COORDINATOR, AKSHAYA PROJECT, KOZHIKODE, CIVIL STATION, WAYANAD ROAD, ERANHIPPALAM, KOZHIKODE – 673020.

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4 ALTHAF P.K., PUTHALATH, THECHIYAD, KALLURUTTY, KOZHIKODE – 673582.

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5 MUKKAM MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUKKAM P.O, KOZHIKODE – 673602.

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6 SECRETARY, MUKKAM MUNICIPALITY, MUKKAM P.O, KOZHIKODE - 673602. BY ADV SURESH KUMAR KODOTH

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 03.11.2023, ALONG WITH WP(C)NO.27875/2020, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:

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WPC 27875/20 & 812/22

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JUDGMENT

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[WP(C) Nos.27875/2020, 812/2022]

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I am considering these Writ Petition s together because, they

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have been filed by the same person; and since the factual

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circumstances involved, as also the reliefs sought for, are analogous and inter-layered.

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The facts involved in these cases are barely disputed.

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The 3^rd respondent in WP(C)No.27875/2020 –

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Sri.P.K.Althaf (who will hereinafter be referred to by his name for

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ease), was an ‘Akshaya Centre Entrepreneur’ (ACE) and he is stated

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to have agreed with the petitioner – Smt.Nusrath N., for transfer of

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license of the centre in her name. This is more or less evident from

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Exts.P8 and P9 produced in the said Writ Petition; but a doubt arose

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whether such a transfer could be allowed because, the petitioner is

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not Sri.Althaf’s close relative and this was on account of the

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subsequent Guidelines issued by the Government, namely Ext.P10.

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4 . However, finding that the revised Guidelines came into

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force after Exts.P8 and P9 permissions were granted, the transfer in

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WPC 27875/20 & 812/22

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favour of the petitioner was allowed through Exts.P11 and P12.

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However, before it could take place, for some reason, Sri.P.K.Althaf appears to have withdrawn his consent; and consequently Ext.P14 order was issued, terminating his ‘Akshaya Centre’ at his request,

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but without acceding to the transfer of same in favour of the petitioner.

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5 . It transpires that the petitioner, thereupon, approached the competent Authorities; but it finally led to an order dated 17.08.2021 by the Government, wherein again, her request for transfer of the Centre in her favour was rejected; and she, therefore,

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has chosen to challenge the said order, producing it as Ext.P23, through WP(C)No.812/2022 .

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6 . Sri.P.Santharam – learned counsel for the petitioner , vehemently argued that, after Sri.P.K.Althaf had agreed to transfer the ‘Akshaya Centre’ in favour of his client, the competent Authorities could not have issued Ext.P14, cancelling his license and thus refusing to transfer it in her name. He argued that this is more so on account of Ext.P13, wherein, the District Collector had taken a stand that the process of transfer should be completed. He,

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WPC 27875/20 & 812/22

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therefore, prayed that Ext.P14 in WP(C)No.27875/2020 and the consequential Ext.P23 in WP(C)No.812/2022 be set aside and the

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competent Authority be directed to effect transfer of the ‘Akshaya Centre’ in her client’s name.

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7 . The learned Standing Counsel for the Mukkam

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Municipality – Sri.Suresh Kumar Kodoth, submitted that his client has no objection in allowing the transfer now sought for by the petitioner; and that, in fact, then recommend her for the same. He explained that, this is because, she has invested considerable amount of resources on the Centre, under the genuine impression that Sri.P.K.Althaf would transfer it in her favour.

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8 . The learned Government Pleader – Sri.P.S.Appu, submitted that the official Authorities have not acted in error, in issuing the impugned orders because, they had no other option, but to cancel the ‘Akshaya Centre’ in the name of Sri.P.K.Althaf, when he himself requested for the same, as evident from Ext.R1(b) letter, produced along with the counter affidavit. He submit that, therefore, all which they can now do is to re-notify the ‘Akshaya Centre’, in which, the petitioner can also take part; and added that if she is to

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WPC 27875/20 & 812/22

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do so, necessary preference will be given to her, taking note of

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Exts.P8, P9, P11 to P13 in WP(C)No.27875/2020.

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9 . The records reveal that even though notice has been

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validly served on Sri.P.K.Althaf, he has chosen not to be present in person, or to be represented through counsel; thus constraining me

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to dispose of these Writ Petitions in his absence.

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10. I have considered the rival contentions very intently.

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11. The controversy in these cases has its genesis in the fact

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that Sri.P.K.Althaf initially agreed to transfer the ‘Akshaya Centre’ in

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favour of the petitioner, but seems to have then resiled from it, as evident from Ext.R1(b), produced along with WP(C)No.27875/2020. If Sri.P.K.Althaf has withdrawn his offer to the petitioner on his own

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volition, I cannot find fault with the official respondents in having issued the impugned orders because, no transfer of his license could have been made in favour of the petitioner without his express consent. Obviously, therefore, what is now required is an enquiry by

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the competent Authority, involving the petitioner and Sri.P.K.Althaf, as to whether the latter had withdrawn from his offer on his own

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and if so, what kind of preference can be given to the former, in

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WPC 27875/20 & 812/22

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the event a further notification is to be issued.

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Keeping the afore perspective in mind, I dispose of these Writ

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Petitions with the following directions:

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petitioner and Sri.P.K.Althaf and decide whether any modification had to be made to the impugned orders in these cases.

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b ) Should Sri.P.K.Althaf refuses to appear in spite of such notice, or if the competent Authority is to find that he has resiled from his agreement with the petitioner on his own volition, then the said Authority will be at liberty to instruct the officers concerned for publication of a fresh notification, in which, the petitioner will certainly be allowed to participate and necessary preference given to her, in view of the proceedings in these cases, which will also be indicated in the resultant order.

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c ) If, on the contrary, Sri.P.K.Althaf agrees to the transfer during the afore hearing, then, necessary orders will be issued by the 1 st respondent in modification of Ext.P14 in WP(C)No.27875/2020 and Ext.P23 in WP(C)No.812/2022; thus allowing the transfer, subject

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to all other requirements in law and imperatives being satisfied and

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WPC 27875/20 & 812/22

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complied with by the petitioner.

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Sd/-

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RR

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DEVAN RAMACHANDRAN

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JUDGE

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WPC 27875/20 & 812/22

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APPENDIX OF WP(C) 812/2022

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`PETITIONER EXHIBITS` `Exhibit P1`	`TRUE COPY OF AGREEMENT DATED 11.06.2015` `BETWEEN 2ND RESPONDENT AND 4TH RESPONDENT.`
`Exhibit P2`	`TRUE COY OF CERTIFICATE ISSUED BY MES` `COLLEGE OF ARTS AND SCIENCES, KALANTHODE` `STATING 4TH RESPONDENT'S EMPLOYMENT.`
`Exhibit P3`	`A TRUE COPY OF THE LETTER DATED` `05.07.2016.`
`Exhibit P4`	`A TRUE COPY OF THE FILE NOTE OF AKSHAYA` `PROJECT OFFICE DATED 23.05.2017.`
`Exhibit P5`	`A TRUE COPY OF APPLICATION BEFORE AKSHAYA` `PROJECT OFFICE, KOZHIKKODE DATED` `10.07.2018 GIVEN BY 4TH RESPONDENT TO` `TRANSFER THE CENTRE TO PETITIONER'S NAME.`
`Exhibit P6`	`A TRUE COPY OF GO(RT) NO. 171/2013/ITD` `DATED 20.07.2013.`
`Exhibit P7`	`A TRUE COPY OF APPLICATION DATED` `10.07.2018 SUBMITTED BY PETITIONER TO 4TH` `RESPONDENT.`
`Exhibit P8`	`A TRUE COPY OF APPROVAL GIVEN BY 4TH` `RESPONDENT DATED 10.07.2018.`
`Exhibit P9`	`A TRUE COPY OF FORWARDING NOTE ISSUED BY` `5TH RESPONDENT TO DISTRICT PROJECT MANAGER` `DATED 08.08.2018.`
`Exhibit P10`	`A TRUE COPY OF LETTER DATED NIL ISSUED BY` `CHAIRMAN OF 5TH RESPONDENT TO 2ND` `RESPONDENT REQUESTING TRANSFER OF AKSHAYA` `CENTRE AT THECHIYAD TO PETITIONER.`
`Exhibit P11`	`A TRUE COPY OF CERTIFICATE NO.` `426/PCC/D2/2018 ISSUED BY KUNNAMANGALAM` `POLICE STATING THAT THERE ARE NO CASE` `RECORDS AGAINST PETITIONER.`
`Exhibit P12`	`A TRUE COPY OF INSPECTION REPORT DATED` `06.12.2018 BY PROJECT ASSISTANT AND` `AKSHAYA COORDINATOR.`
`Exhibit P13`	`TRUE COPY OF LETTER DATED 01.04.2019.`
`Exhibit P14`	`A TRUE COPY OF FILE NOTE OF ADMINISTRATIVE` `OFFICER, AKSHAYA, KOZHIKODE DATED` `13.05.2019.`
`Exhibit P15`	`A TRUE COPY OF THE LETTER DATED 24.05.2019` `ISSUED BY ADMINISTRATIVE OFFICER TO` `DISTRICT PROJECT MANAGER, KOZHIKODE.`
`Exhibit P16`	`A TRUE COPY OF LETTER ISSUED TO PETITIONER` `BY ADMINISTRATIVE OFFICER DATED`

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WPC 27875/20 & 812/22

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23.05.2019.
Exhibit P17A TRUE COPY OF G.O(RT) NO. 24/2019/ITD
DATED 30.10.2019.
Exhibit P18A TRUE COPY OF LETTER BY ADMINISTRATIVE
OFFICER DATED 03.01.2020.
Exhibit P19A TRUE COPY OF LETTER ISSUED BY PRINCIPAL
SECRETARY TO 2ND RESPONDENT DATED
01.06.2020.
Exhibit P20A TRUE COPY OF ORDER DATED 17.11.2020
FORWARDED BY 2ND RESPONDENT.
Exhibit P21A TRUE COPY OF ORDER DATED 01.12.2020.
Exhibit P22A TRUE COPY OF LETTER DATED 11.02.2021
SENT BY 2ND RESPONDENT TO SECRETARY,
ELECTRONICS AND IT DEPARTMENT.
Exhibit P23A TRUE COPY OF LETTER DATED 17.08.2021
ISSUED BY 1ST RESPONDENT TO 2ND
RESPONDENT.
RESPONDENT ANNEXURES
Annexure R3(a)True copy of the statement signed by the
petitioner during the hearing conducted by
state level officer

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WPC 27875/20 & 812/22

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APPENDIX OF WP(C) 27875/2020

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`PETITIO` `EXHIBIT`	`NER EXHIB` `P1`	`ITS` `TRUE COPY OF AGREEMENT DATED 11-06-2015` `BETWEEN 2ND RESPONDENT AND 3RD RESPONDENT`
`EXHIBIT`	`P2`	`TRUE COPY OF CERTIFICATE ISSUED BY MES` `COLLEGE OF ARTS AND SCIENCES, KALANTHODE` `STATING 3RD RESPONDENT'S EMPLOYMENT`
`EXHIBIT`	`P3`	`TRUE COPY OF G.O(RT) NO. 171/2013/ITD` `DATED 20-07-2013`
`EXHIBIT`	`P4`	`TRUE COPY OF RESOLUTION PASSED BY MUKKAM` `MUNICIPAL COUNCIL DATED 08-08-2018`
`EXHIBIT`	`P5`	`A TRUE COPY OF FORWARDING NOTE ISSUED BY` `5TH RESPONDENT TO DISTRICT PROJECT MANAGER` `DATED 08-08-2018`
`EXHIBIT`	`P6`	`A TRUE COPY OF LETTER ISSUED BY CHAIRMAN` `OF 4TH RESPONDENT NIL DATED TO 2ND` `RESPONDENT REQUESTING TRANSFER OF AKSHAYA` `CENTRE AT THECHIYAD TO PETITIONER.`
`EXHIBIT`	`P7`	`TRUE COPY OF CERTIFICATE NO.` `426/PCC/D2/2018 ISSUED BY KUNNAMANGALAM` `POLICE STATING THAT THERE ARE NO CASE` `RECORDS AGAINST PETITIONER`
`EXHIBIT`	`P8`	`TRUE COPY OF LETTER DATED 24-05-2019` `ISSUED BY ADMINISTRATIVE OFFICER TO` `DISTRICT PROJECT MANAGER, KOZHIKKODE`
`EXHIBIT`	`P9`	`TRUE COPY OF LETTER ISSUED TO PETITIOENR` `BY ADMINISTRATIVE OFFICER DATED 23-05-2019`
`EXHIBIT`	`P10`	`TRUE COPY OF G.O(RT)NO 24/2019/ITD DATED` `30-10-2019`
`EXHIBIT`	`P11`	`TRUE COPY OF LETTER BYA DMINISTRATIVE` `OFFICER DATED 03-01-2020`
`EXHIBIT`	`P12`	`A TRUE COPY OF LETTER ISSUED BY PRINCIPAL` `SECRETARY TO 1ST RESPONDENT DATED 01-06-` `2020`
`EXHIBIT`	`P13`	`TRUE COPY OF LETTER DATED 17-11-2020` `FORWARDED BY 2ND RESPONDENT`
`EXHIBIT`	`P14`	`TRUE COPY OF ORDER DATED 01-12-2020 ISSUED` `BY 2ND RESPONDENT`

Nusrath N v. Under Secretary

Case brief

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What did the court decide?

Nusrath N v. Under Secretary

Case brief

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What did the court decide?

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