Dismissed

T.a.Sheriff v. Chengannur Municipality

Kerala HC2 Feb 2015WP(C)/10612/2011

Case brief

AI extract

What is this about?

This writ petition challenges the refusal to renew a licence for occupation of seven market stalls. The court directed the Municipality to decide on renewal within two months, affirmed that no double fees are applicable if occupation and trade licences are granted, and barred eviction pending the decision.

What did the court decide?

The Municipality directed to take a decision on licence renewal within two months; no coercive eviction steps to be taken pending such decision.

T.a.Sheriff Vs Chengannur Municipality — Constitutional and Fundamental Rights | Kerala HC (2015)

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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 C.K.ABDUL REHIM

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MONDAY, THE 2ND DAY OF FEBRUARY 2015/13TH MAGHA, 1936

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WP(C).No. 10612 of 2011 (B)

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PETITIONER:

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T.A.SHERIFF, S/O HASSAN BAVA RAWTHER, RESIDING AT "THONDALIL", KOLLAKADAVU P.O., CHENGANNUR.

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BY ADVS.SRI.GEORGE POONTHOTTAM SRI.SUJITH MATHEW JOSE

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RESPONDENT(S):

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1. THE CHENGANNUR MUNICIPALITY CHENGANNUR, ALAPPUZHA DISTRICT, PIN-689 121 REPRESENTED BY THE SECRETARY.

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2. SECRETARY, CHENGANNUR MUNICIPALITY, CHENGANNUR ALAPPUZHA-689 121.

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*ADDL. R3 & ADDL R4 IMPLEADED

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*ADDL.R3. THE MUNICIPAL COUNCIL, CHENGANNUR MUNICIPALITY ALAPPUZHA - 689 121 REPRESENTED BY THE CHAIR PERSON.

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*ADDL.R4. SHAJU T.A., S/o. ALIYARU KUNJU, AGED 38, THONDALIL THEKKETHIL HOUSE CHERUVALOOR MURI, KOLLAKADU P.O., CHENGANNUR TALUK, ALAPPUZHA DISTRICT.

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ADDITIONAL 3RD RESPONDENT IS IMPLEADED AS PER ORDER DATED 22.6.2011 IN I.A. 6625/11 AND ADDITIONAL 4TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 22.6.2011 IN I.A. 8454/11.

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ADDL.R-4 BY ADV. SRI.S.SREEKUMAR R1 & 2 BY ADV. SRI.T.R.RAJAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-02-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 10612 of 2011

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APPENDIX

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PETITIONERS EXHIBITS:

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EXHIBIT P1:COPY OF THE AUCTION NOTICE DATED 24.2.2001.

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EXHIBIT P2:COPY OF THE AUCTION NOTICE NO.R 374/2010 DATED 17.2.2010.

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EXHIBIT P3:COPY OF THE JUDGMENT IN W.P.(C).NO. 16721/2010 DATED 1.6.2010.

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EXHIBIT P4:COPY OF THE NOTICE NO.R363/01 DATED 13.9.2010.

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EXHIBIT P5:COPY OF THE RENT RECEIPTS IN RESPECT OF THE STALLS OCCUPIED BY THE PETITIONER.

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EXHIBIT P6:COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 17.3.2011.

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EXHIBIT P7:COPY OF THE PAY ORDER DATED 17.3.2011.

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EXHIBIT P8:COPY OF THE CERTIFICATE ISSUED BY THE POLLUTION CONTROL BOARD VALID UP TO 30.6.2012.

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EXHIBIT 9:COPY OF THE HEARING NOTICE NO. H1-1674 DATED 28.3.2011.

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EXHIBIT 10:COPY OF THE REPRESENTATION GIVEN BY THE PETITIONER DATED 28.3.2011.

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EXHIBIT 11:COPY OF THE ORDER NO.H1/1674/11 DATED 30.3.2011.

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EXHIBIT 12:COPY OF THE APPEAL FILED BEFORE THE COUNCIL DATED 6.4.2011.

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EXHIBIT P13:COPY OF THE NOTICE NO.R3-4457/09 DFATED 20.8.2011.

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EXHIBIT P14:COPY OF THE NOTICE NO.H1-1311/12 DATED 20.04.2012.

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EXHIBIT P15:COPY OF THE NOTICE NO.H1-1674/11 DATED 10.6.2014.

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EXHIBIT P16:COPY OF THE NEWS ITEM APPEARED IN MATHRUBHUMI DAILY DATED 20.9.2014.

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EXHIBIT 17:COPY OF THE NOTICE NO.H1-1674/11 DATED 19.9.2014.

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RESPONDENTS EXHIBITS & ANNEXURES:

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EXHIBIT R1:COPY OF THE NOTICE DATED 30.3.2011.

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EXHIBIT R1(A):COPY OF THE REPORT DATED 23.9.2014 OF THE REVENUE INSPECTOR CHENGANNUR MUNICIPALITY.

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EXHIBIT R2:COPY OF THE NOTICE DATED 23.4.2011.

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EXHIBIT R3:COPY OF THE LAWYER NOTICE DATED 25.4.2011.

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ANNEXURE A:COPY OF THE NOTICE DATED 2.2.2011 ISSUED BY 1ST RESPONDENT.

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WP(C).No. 10612 of 2011

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ANNEXURE B:COPY OF NOTICE DATED 7.3.2011 ISSUED BY 2ND RESPONDENT.

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EXHIBIT R4:APPEAL DATED 6.4.2011 PREFERRED BY THE PETITIONER.

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EXHIBIT R4(A):COPY OF TENDER NOTICE DATED 2.2.2011 ISSUED BY 1ST RESPONDENT.

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EXHIBIT R4(B):COPY OF COMMUNICATION DATED 7.3.2011 ISSUED BY 1ST RESPONDENT.

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EXHIBIT R4(C):COPY OF AGREEMENT EXECUTED BY ADDL.4TH RESPONDENT IN FAVOUR OF 1ST RESPONDENT DATED 8.3.2011.

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EXHIBIT R4(D):COPY OF AGREEMENT EXECUTED BY ADDL4.TH RESPONDENT IN FAVOUR OF 1ST RESPONDENT DATED 8.3.2011.

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EXHIBIT R4(E):COPY OF CONSENT TO OPERATE DATED 11.2.2011 ISSUED BY THE POLLUTION CONTROL BOARD.

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SKV

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C.K.ABDUL REHIM,J.

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WP(C).NO.10612 of 2011

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Dated this the 2^nd day of February, 2015

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JUDGMENT

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The petitioner is the successful bidder in the auction conducted with respect to licence for occupation of 7 stalls situated in the “market-cum-shopping complex” owned by the 1^st respondent Municipality at Shasthampuram market. The auction was conducted in the year 2001, based on Ext.P1 notification. The Municipality had auctioned licence for occupation of 74 market stalls and 26 shop rooms in the complex. All the 7 stalls which were bid in auction by the petitioner are 'market stalls' bearing Stall Nos. 4,5,8,9,10,18 and 19. These are stalls earmarked for sale of different meats, other than poultry. The period of the licence was for 3 years. According to the petitioner, persons who bid in auction other “market stalls” and “shop rooms” are continuing in occupation based on the renewal granted after expiry of the period of 3 years, on increase of the rental amount by 10%. During the year 2010, the Municipality published Ext.P2 notification wherein auction was proclaimed with respect to monopoly (exclusive) right for trade of meat in Shasthapuram market. The petitioner challenged Exts.P2 in a writ petition filed before

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WP(C).NO.10612 of 2011 2

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this court, as WP(C).No.10133/2010. It is stated that the said writ petition is still pending. But licence with respect to occupation of the “market stalls” granted in favour of the petitioner with respect to the 7 stalls were not renewed by the Municipality after 31.3.2011. Meanwhile, when the Municipality initiated steps to conduct auction of the exclusive right for trading in meat within the Market, without considering request of the petitioner's for renewal of the licence, the petitioner had approached this court in another writ petition WP(C).No.16721/2010. When the said writ petition came up for consideration it was submitted on behalf of the Municipality that the applications of the petitioner for renewal would be considered in accordance with the relevant Rules and a final decision will be communicated . Recording such submissions, the writ petition was disposed of through Ext.P3 judgment, directing that, till such time a decision is taken and communicated to the petitioner he should be allowed to continue business in the stalls in question on such terms as fixed by the Municipality. It is stated that based on the direction contained in Ext.P3 the petitioner has remitted rental amount as evidenced from Ext.P5 till March 2011. But

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WP(C).NO.10612 of 2011 3

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Ext.P6 application submitted by the petitioner to renew the D&O licence under section 447 was rejected through Ext.P11.

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In Ext.P11 it is mentioned that the monopoly (exclusive) right for sale of 'Mutton' and 'Beef' during the year 2011-2012 was already auctioned to the additional 4^th respondent. Request of the petitioner for grant of licence was rejected under Section 469 (1) & (2) of the Kerala Municipality Act. The petitioner had preferred an appeal against Ext.P11 before the council of the respondent Municipality, which is pending disposal. In the present writ petition the petitioner seeks direction for renewal of the licence for occupation granted with respect to the “market stalls” and also seeks direction for renewal of the licence for conduct of business in the stalls. By virtue of the interim order of status-quo issued by this court, the petitioner is still continuing occupation of the stalls in question.

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Learned Standing Counsel appearing for the 1^st respondent Municipality contented that the period of licence for occupation of the “market stalls” auctioned to the petitioner, based on Ext.P1 notification, had expired long back. It is admitted that the licence for occupation was renewed till March 2011. Thereafter the petitioner is continuing in

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WP(C).NO.10612 of 2011 4

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occupation of the stalls only based on the interim order issued by this court. Learned Standing Counsel submitted that the petitioner had defaulted payment of rental amounts with respect to the stalls from April 2011 onwards. Learned counsel appearing for the petitioner had disputed the above statement contending that the Municipality has not accepted payment of

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the rental amount from the petitioner, eventhough the petitioner was ready and willing to make payment at the enhanced rate as fixed by the Municipality.

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One of the main issues to be decided is as to whether the petitioner is entitled to continue in occupation of the “market stalls' on the basis of the auction conducted under

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Ext.P1 notification, for any indefinite period. In other words whether the petitioner can claim continuance of occupation based on any specific enhancement, in terms of the auction conducted based on Ext.P1. Learned Counsel for the petitioner contended that many other licensees were permitted to continue occupation on the basis of 10% enhancement fixed on every 3 years. But this court is of the opinion that it is for

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the Municipality to take a decision as to whether the occupation can be permitted by renewal of the licence on any

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WP(C).NO.10612 of 2011 5

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specific terms of enhancement or as to whether the licence for occupation need to be re-auctioned. Merely because some other persons were permitted to renew the licence for occupation of the stalls or shop rooms, the petitioner cannot claim such renewal as a matter of right. It is for the Municipality to take an appropriate decision in the matter.

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With respect to auctioning of the monopoly (exclusive) right to conduct trade in Meat, it is to be noticed that the premises auctioned to the petitioner are stalls situated within the public market, specified as “market stalls”. Of course, the petitioner require licence to conduct trade within the 'market stalls' as required under Section 447 read with the relevant Rules. If the petitioners are in the occupation of butcher, fish monger or poulterer which are coming within the purview of Section 469 of the Act, he may require a special licence as contemplated under Section 469. But question remains as to whether the Municipality can auction any monopoly (exclusive) right for conduct of trade in Meat in the market stalls. Powers of the Municipality with respect to public markets is provided under Section 458 of the Act. It enables the municipality to levy certain fees at such rates with respect

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WP(C).NO.10612 of 2011 6

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to use of any place in such markets to expose goods or to conduct sale of goods brought to such market or for parking animals brought for sale etc. The Municipality is also entitled to collect licence fee from brokers, commission agents etc. also. Under Section 458 the Municipality is at liberty to farmout collection of such fees for any period not exceeding three years. Under Sub Section (2)(b) of Section 458 the Municipality is also entitled to collect fee for the use of stalls in the public market. From the above said provisions it is clear that for conduct of business in the “market stalls” let out to the petitioner, he has to obtain a licence either under Section 447 or under Section 469 of the Act. But with respect to occupation of the stalls in question which are situated within the market, the petitioner cannot be taxed or levied twice. When the municipality is auctioning the licence for occupation based on specific terms for specific period the Municipality cannot collect any further fee for use of the stalls merely because such stall is situated in a public market. The licence fee contemplated under Section 458 to expose goods for sale or to collect fee on goods brought to sale to such markets, shall not be applicable with respect to a person to whom the

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WP(C).NO.10612 of 2011 7

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licence for occupation is granted on the basis of a competitive tender/auction conducted and permitted such occupation for specific periods.

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Therefore, with respect to occupation of the stalls in question by the petitioner, it is for the Municipality to take an appropriate decision either to renew such licence for any specific period on specific terms of enhancement or to conduct fresh auction. At any rate, if a decision is taken permitting the petitioner to continue occupation in any manner, the Municipality will be entitled to collect licence fee either under Section 447 or under Section 469 considering the fact that the stalls in question are specifically earmarked for conduct of meat business. Once the occupation is licenced to a person, there is no justification in denying licence to conduct trade in such stalls. If the person to whom the licence to occupation is granted and a trade licence is issued as mentioned above, no further fee for occupation as contemplated under section 458 (2)(b) shall be collected.

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Under the above mentioned circumstances, the writ petition is disposed of by directing the Municipality to take a decision with respect to the renewal of licence for occupation

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WP(C).NO.10612 of 2011 8

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granted to the petitioner with respect to the “market stalls” Nos.4,5,8,9,10,18 and 19, after affording an opportunity of personal hearing to the petitioner, and after taking note of the observations contained herein above. Such decision shall be taken at the earliest possible, at any rate within a period of two months from the date of receipt of a copy of this judgment. Considering the fact that the petitioner is permitted occupation of the stalls on the basis of the interim order, no coercive steps for eviction shall be taken against him till a decision is taken based on the above direction and it is communicated.

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It is made clear that the petitioner will be liable to

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pay arrears of rent with respect to occupation and also for continued payment of rent until the stalls are vacated, at the rates as specified in Ext.P15, without collecting any interest. Learned counsel for the petitioner had undertaken that the arrears of rental amount will be paid within a period of six weeks from today.

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C.K.ABDUL REHIM, JUDGE

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Pmn/SKV

T.a.Sheriff v. Chengannur Municipality

Case brief

What is this about?

What did the court decide?

T.a.Sheriff v. Chengannur Municipality

Case brief

What is this about?

What did the court decide?

What the court decided

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