Dismissed
Thressia v. Kunnamkulam Municipality
Kerala HCSA/874/2000
Case brief
from the order text
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COURT OF KERALA AT ERNAKULAM PRESENT : THE…
What the court decided
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE P.BHAVADASAN
TUESDAY, THE 31ST MAY 2011 / 10TH JYAISHTA 1933
SA.No. 874 of 2000(D)
-------------------AS.11/1997 OF IST ADDL. DISTRICT COURT, THRISSUR OS.425/1993 of MUNSIFF COURT,CHAVAKKAD
APPELLANTS IN S.A. - APPELLANTS IN THE LOWER APPELLATE COURT –
----------------------------------------------------------------------------------------------------------SUPPLEMENTAL PLAINTIFFS 2 TO 4 IN SUIT : -----------------------------------------------------------------
1. THRESSIA, W/O. C.V. JOSEPH, (RUNNING FLOUR MILL AT IV/847, KUNNAMKULAM MUNICIPALITY, PATTAMBI ROAD, KUNNAMKULAM VILLAGE, THALAPPILLY TALUK), RESIDING AT THOLOOR VILLAGE, PARAPPUR DESOM.
2. DAIZ, D/O. JOSEPH, IN DO. DO.
3. DOLLY, D/O. JOSEPH, IN DO. DO.
BY ADVS. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.P.B.KRISHNAN
RESPONDENT IN S.A. - RESPONDENT IN THE LOWER APPELLATE COURT – ------------------------------------------------------------------------------------------------------------DEFENDANT IN SUIT : --------------------------------
KUNNAMKULAM MUNICIPALITY, REPRESENTED BY COMMISSIONER, KUNNAMKULAM MUNICIPALITY, KUNNAMKULAM.
BY ADVS. SRI.A.K.CHINNAN SRI.K.K. GEETHA
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mn
...2/-
SA.No. 874 of 2000(D) -2-
ORDER ON C.M.P. NO. 2142/2001 & C.M.P. NO. 132/2001
IN SA. NO. 455/2000
DISMISSED
31/05/2011
SD/- P. BHAVADASAN, JUDGE
//TRUE COPY//
P.S. TO JUDGE
Mn
P.BHAVADASAN, J.
SA No.874 of 2000-D
Dated this the 31st day of May 2011
Judgment
Faced with the concurrent findings against him, the plaintiffs in OS No.425/93 before the Munsiff's Court, Chavakkad, have come up in appeal. The original plaintiff died during the pendency of the suit and his legal heirs have been brought on the party array.
SA 874/2000 2
refused to renew the licence. The defendant issued a notice to the plaintiff asking to stop the business run by him. According to the plaintiff, the notice is illegal and cannot be enforced. It is further alleged that no reply was given to the application filed by him for renewal of the licence. On 17.08.1993, an officer of the defendant Municipality came to the premises of the plaintiff and threatened him of coercive steps being taken against him. Therefore, the suit was laid, praying for a permanent prohibitory injunction.
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were raised by the trial court. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 and A2 from the side of the plaintiff. The defendant had DW1 examined and Exts.B1 to B4 marked.
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on the following questions of law :
(A) Is not the decision of the lower appellate court finding that the suit is not maintainable, unsustainable in law in view of Section 392 of the Municipalities Act, 1960 which corresponds to Section 544 of the Kerala Municipalities Act, 1994 ?
(B) Would not Section 563 of the Kerala Municipalities Act, 1994 govern the controversy involved in the suit and is not the dispute maintainable under that Act ?
Whether under the scheme of the Kerala Municipalities Act, 1960, an aggrieved party should approach the Government in Revision under Section 364(2) of the said Act under all occasions and court a decision – even while the decision of the appellate authority is vitiated due to violation of the principles of natural justice and
the decision itself is not communicated – before he is found competent to institute a suit under Section 392 of the said Act ?
that the flour mill is being operated in the plaint
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schedule building, a case the respondent Municipality itself does not have ?
assailed the findings of the courts below on the ground that it violates the principles of natural justice. Reliance was placed on the decision reported in Ram Swarup v. Shikar Chand (AIR 1966 SC 893). According to the learned counsel, the plaintiff was not given an opportunity to show that the building was in a good condition and also that he was not served with any reply to the application for renewal filed by him. It is further contended that even assuming that the building is in a dilapidated condition, the procedure contemplated under the Municipalities Act has not been followed by the defendant. Therefore, it is contended that the judgment and decree of the courts below are unsustainable in law.
the other hand, contended that as early as in 1991, notice was issued to all the tenants in the building, intimating
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them about the poor condition of the building and asking them to vacate the building. The rejection of the renewal application was duly intimated to the plaintiff and his appeal was also considered. Moreover, licence was granted to him, initially for running a grocery shop and not for running a flour mill. Even assuming that the plaintiff is aggrieved by the orders passed against him, he has got efficacious statutory remedies before appropriate authorities and the suit is not maintainable.
“A) ആയത�ന�ല ബഹ�മ�നപ�ട ക��ടത�യ�പ� ദയവ�ണ�യ� പ�ത�കയ� പ�ത�യ �പട ആള��ക�� അന��യ�ട�� വഹ�ള�ല അന��യ���ന നടത�യ���നത�# അന��യ���പ$ മ�ണക&ഷ# ��ന�ടര*�വ��&��ള�യ സ�,ള�പമ$, 2 മ�തല 4 ��ട� അന��യ���, ത �ടരന� നടത�വ� �നത�മ�യ ഫ,ളവര മ�ല ബ�സ�നസ, നടത�നത�പനത���യ� യ�പത��� coercive stepsഓനട�ട��കള� എട ����പതന�# അന��യ�ട��യ�ല നടത�നത�യ &��കമ� തടസകമ� പ3യ �ന,ത�യ യ�പത�� �
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പ�വ5ത��ള�# പ3യ,ത�ക�����പതന, പ�ത�പയ ഒ�� &�&7ത ഇഞ,:#ഗ,ഷന മ<�# ന�ക��ധ��# B)ഈ ����ത�ല സ�,ള�പമ$, അന��യ��ര�, കന��ട�ന സ�� 3��വ��ള�# പ�ത�കയ�ട� ത��വ�ന ��,���# C) വ�വഹ��മക?� സ�,ള�പമ$, അന��യ��ര അക�ക���നത�# ക��ടത��, യ�കപമന� കത�ന�നത�മ�യ മറ� ന�വ5ത��പള ��,��* �# ഒ� � വ�ധ�യ �ണ�വണപമന, വണ�മ�യ� അക�ക���ന�.”
Going by the prayers quoted above, it is significant to notice that the prayer is to grant an order of injunction in favour of the plaintiff, enabling him to conduct the flour mill whereas the licence earlier granted to him was for running a grocery shop. Apart from the above fact, the grievance of the plaintiff is that there is violation of the principles of natural justice. The said grievance is without any basis. Exts.P2 and P4 will reveal the decision of the Municipality and that he was aware of the rejection of the renewal application for licence. The lower appellate court has observed that if the plaintiff is aggrieved by the orders passed by the Municipality, he has got efficacious statutory remedy of filing appeal against those orders before the competent authority. The findings of the lower appellate
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court are perfectly justified and do not call for any interference. The result is that no substantial questions of law arise for consideration in this appeal. The appeal is devoid of any merits and it is accordingly dismissed. However, there will be no order as to costs.
P.Bhavadasan, Judge
sta
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Thressia and others
Kunnunkulam Municipality
P. Bhavadasan
As recorded by the court registry
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