HOTEL INDRAPRASTHA Vs. K. SOMASEKHARAN NAIR AND ORS.

JUDGEMENT

(1.) THESE two Writ Appeals have been filed against the common judgment dated 16.02.2015 passed by the learned Single Judge in W.P(C) Nos. 3321 and 3322 of 2015. For deciding these Writ Appeals it shall be sufficient to refer to the pleadings in W.P(C) No. 3321 of 2015. By the impugned judgment, the learned Single Judge has allowed the Writ Petitions. Aggrieved by the said judgment, 3rd respondent in W.P(C) No. 3321 of 2015 and 6th respondent in W.P(C) No. 3322 of 2015 have come up in appeal.

(2.) BRIEF facts of the case as emerged from the pleadings of the parties and materials on record are: The 3rd respondent who is the Managing Partner of Hotel Indraprastha submitted an application to the Nedumanagad Municipal Council for No Objection Certificate from the Municipal Council to start beer and wine parlour in the hotel. The proposal came to be considered in the meeting of the Municipal Council held on 18.12.2013. Out of total 39 members of the Council including the Chairman, 37 persons were present in the meeting. Two Councilors were absent. The Chairman asked the Councilors who are opposing grant of NOC to raise their hands. 18 Councilors raised their hands opposing the grant of NOC. The Councilors present demanded a poll asking the Chairman to take the votes of those Councillors who are in support of the NOC. The Chairman did not agree and opined that since only 18 Councillors are opposing, NOC is to be granted. Decision of the Chairman was protested by other Councillors and it is alleged that some Councillors tore off the attendance sheet of the Councillors of that meeting. 20 Councillors submitted a representation/complaint before the State Government alleging that in the meeting dated 18.12.2013 on item No. 5 of the Agenda relating to beer parlour in Hotel Indraprastha 20 Councillors opined that NOC shall not be granted. It was alleged that a few Councillors who attended the meeting destroyed the paper where the Councillors marked their attendance and the Councillors requested the Government that the NOC to be not granted on the basis of the above Agenda. The Government after receipt of the complaint made by the 20 Councillors by order dated 20.12.2013 stayed the resolution dated 18.12.2013. The 3rd respondent filed W.P(C) No. 257 of 2014 challenging the said order granted by the State Government. Learned Single Judge noticing the complaint by the 20 Councillors disposed of the Writ Petition vide judgment dated 03.01.2014 directing the State Government to complete the proceedings initiated under Ext. P7 in accordance with law. One Somasekharan Nair also filed W.P(C) No. 300 of 2014 complaining about the resolution dated 18.12.2013. Writ Petition No. 300 of 2014 was also disposed of by order dated 03.01.2014 directing the State Government to consider the objection of the petitioner after affording opportunity of being heard to him also before passing final orders on the complaint made by the 20 Councillors against the resolution dated 18.12.2013. After receipt of the representation by the 20 Councillors against the resolution dated 18.12.2013 of the Council, the State Government by its order dated 19.03.2014 made a reference under Section 57(2) of the Kerala Municipality Act, 1994 (hereinafter referred to as "the 1994 Act") to the Tribunal for Local Self Government Institutions (hereinafter referred to as "the Tribunal") for submitting a report. The Tribunal after hearing all concerned parties, submitted its report dated 25.06.2014. The Tribunal opined that the State Government has no jurisdiction to cancel the resolution in exercise of the powers under Section 57 since there is alternative remedy of appeal available under Section 509 of the 1994 Act. The Tribunal, however, after examining the proceedings dated 18.12.2013 on merits observed that resolution dated 18.12.2013 was arbitrary and illegal. After receipt of the report from the Tribunal, the State Government issued order dated 23.01.2015 observing that there being alternative remedy available to the petitioner to file appeal in terms of Section 57(3), the Government shall not consider for amending or cancelling the decision of the Council. Challenging the order dated 23.01.2015, W.P(C) No. 3321 of 2015 was filed by M.S. Binu, a Councillor of Nedumangad Municipal Council praying for the following reliefs:

(3.) WE have heard learned Senior Advocate Shri P. Raveendran and learned counsel Shri Elvin Peter for the appellants. Shri M.P. Ashok Kumar appeared for the petitioner in W.P(C) No. 3321 of 2015. Dr S. Gopakumaran Nair, learned Senior Advocate appeared for the petitioner in W.P(C) No. 3322 of 2015. Shri M. Ramesh Chander, learned Senior Advocate appeared for the Councillors who got themselves impleaded in the Writ Petitions as additional respondents.