Petitioner challenged orders rejecting trade licence renewal and directing closure of 'More' supermarket alleging unauthorised conversion of parking. Court upheld municipal action finding conversion illegal and orders legal and maintainable.
Impugned orders rejecting trade licence renewal and directing closure of business were 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 MR.JUSTICE A.M.SHAFFIQUE THURSDAY, THE 16TH DAY OF FEBRUARY 2017/27TH MAGHA, 1938 WP(C).No. 21493 of 2012 (J) --------------------------
PETITIONER:
V.V.ABRAHAM AGED 74 YEARS, S/O.CHERIAN VARGHESE, VALUTHADATHIL, EDANNADU, CHENGANNUR. BY ADVS.SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.JAGAN GEORGE SRI.K.A.NOUSHAD SRI.P.G.PRAMOD SRI.KANDAMPULLY RAHUL
RESPONDENTS:
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-02-2017 ALONG WITH W.P.C.No.21512 OF 2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.C.NO.21493 OF 2012
APPENDIX
PETITIONER'S EXHIBITS
| EXT.P1 | TRUE | COPY OF THE G.O.(RT)NO.7357/93/LAD DATED 3/12/1993. |
|---|---|---|
| EXT.P2 | TRUE BUILD |
COPY OF THE APPROVED PLAN OF THE GROUND OF THE ING. |
| EXT.P3(A) | TRUE | COPY OF THE BUILDING TAX RECEIPTS DATED 5/2/1998, IN RESPECT OF THE SHOP AREA BEARING NO.14/536. |
| EXT.P3(B) | TRUE | COPY OF THE BUILDING TAX RECEIPTS DATED 30/11/1999, IN RESPECT OF THE SHOP AREA BEARING NO.14/536. |
| EXT.P3(C) | TRUE | COPY OF THE BUILDING TAX RECEIPTS DATED 29/8/2005, IN RESPECT OF THE SHOP AREA BEARING NO.14/536. |
| EXT.P3(D) | TRUE | COPY OF THE BUILDING TAX RECEIPTS DATED 2/2/2006, IN RESPECT OF THE SHOP AREA BEARING NO.14/536. |
| EXT.P3(E) | TRUE | COPY OF THE BUILDING TAX RECEIPTS DATED 3/3/2007, IN RESPECT OF THE SHOP AREA BEARING NO.14/536. |
| EXT.P3(F) | TRUE | COPY OF THE BUILDING TAX RECEIPTS DATED 3/3/2008, IN RESPECT OF THE SHOP AREA BEARING NO.14/536. |
| EXT.P3(G) | TRUE | COPY OF THE BUILDING TAX RECEIPTS DATED 3/8/2010, IN RESPECT OF THE SHOP AREA BEARING NO.14/536. |
| EXT.P4 | TRUE | COPY OF THE G.O.(RT) 412/96/LAD DATED 22/1/1996. |
| EXT.P5 | TRUE | COPY OF ORDER NO.2657/09 DATED 21/12/2010 OF THE SECRETARY OF THE MUNICIPALITY. |
| EXT.P6 | TRUE | COPY OF THE ORDER DATED 25/11/2011 IN OP.743/2009 ISSUED BY THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT, THIRUVANANTHAPURAM. |
| EXT.P7 | TRUE | COPY OF THE ORDER DATED 26/5/2012 IN OP.170/2012 OF THE OMBUDSMAN. |
| EXT.P8 RESPONDENT. |
TRUE |
COPY OF THE ORDER DATED 10/9/2012 OF THE 2ND |
RESPONDENTS' EXHIBITS
EXT.R2(a): TRUE COPY OF THE GOVT.LETTER NO.23805/E3/93/LAD DT.10.06.1993.
EXT.R2(b): TRUE COPY OF THE BUILDING PERMIT NO.218/92-93 DT.15.02.1994 ISSUED BY THE THEN MUNICIPAL COMMISSIONER, CHENGANNUR.
EXT.R2(c): TRUE COPY OF THE KERALA BUILDING RULES, 1984.
EXT.R2(d): TRUE COPY OF THE RELEVANT PAGES OF THE ASSESSMENT REGISTER AT THE 1ST RESPONDENT.
--2--
EXT.R2(e): TRUE COPY OF THE HEARING NOTICE DT.27.8.2012 ISSUED TO THE PETITIONER.
EXT.R2(f): TRUE COPY OF THE HEARING NOTICE DT.27.8.2012 ISSUED TO THE 3RD RESPONDENT.
EXT.R2(g): TRUE COPY OF THE NOTICE NO.E2-2657 DT.12.9.2012.
EXT.R2(h): TRUE COPY OF THE APPEAL DT.NIL SUBMITTED BEFORE THE HON'BLE MUNICIPAL COUNCIL, CHENGNNUR.
TRUE COPY
PA TO JUDGE
**A.M.SHAFFIQUE, J * * * * * * * * * * * *** W.P.C.Nos.21493
&
21512 of 2012
Dated this the 16th day of February 2017
J U D G M E N T
These writ petitions are filed challenging the action of the Municipality in rejecting the trade licence and directing the owner of the building to demolish the constructions made in the ground floor of the building which is now being used as a supermarket under the brand name, 'More'. According to the petitioner, the building was constructed on the basis of a valid building permit and all necessary licences had been obtained in the matter.
W.P.C.Nos.21493 & 21512/2012 2
contended that there is no power available under Section 447(3) of the Kerala Municipalities Act (hereinafter referred to as 'the Act') to pass the impugned orders. It is further contended that earlier, licence was given to the tenant and it is at that time, when renewal of licence was sought for, that the proceedings were initiated under Section 447 of the Act. It is also contended that since the application was not rejected within time, the petitioner has a deemed licence.
W.P.C.Nos.21493 & 21512/2012 3
allegation of unauthorised conversion of parking area of the building. It is inter alia alleged that the parking space as per the approved plan has been converted into commercial space wherein a supermarket is being constructed under the brand name 'More'. It is further stated that there were 11 parking units in the ground floor of the three storied building. As per the plan, ground floor of the petitioner's building consisting of 30 Sq.meters of stair room only and the remaining 316 sq.meters plinth area is to be utilised for 11 parking space of the building, which is unauthorisedly converted as an enclosed hall. It is stated that, as per the provisions of the Kerala Municipality Building Rules, which was applicable during 1984, the unauthorised construction was not eligible for regularisation. Accordingly, the application for licence for the year 2012-13 had been rejected. The Revenue Inspector was directed to re-assess the building and carry out necessary corrections in the assessment records. The Revenue Inspector was further directed to take proceedings under Section 406 of the Kerala Municipalities Act against the unauthorised conversion of parking area. Since the application for licence to trade was declined, the applicant was directed to close down the
W.P.C.Nos.21493 &
21512/2012 4
business under Section 532(5) of the Act. It is further stated that the trade licence expired on 31/03/2012 and the renewal application was pending since then. Therefore, it is contended that when the parking area had been converted into a business premises, further licence cannot be granted.
came to be considered by the Secretary on the basis of the direction issued by the Ombudsman. The question considered was whether there was a conversion of the parking area into a commercial complex. It is found that as per Rule 20(3) of the Kerala Building Rules, 1984, the building ought to have 11 parking spaces. No exemption was granted under Rule 20 of the Rules. The permit issued on 15/02/1994 is produced as Ext.R2(b) in W.P.C.No.21493/2012. It is observed that as per Government Order dated 22/01/1996, exemption has been granted to the third floor of the building since parking space was already provided to the existing ground floor plus two floors. From the assessment register also, it was noticed that the ground floor was having a hall without doors and windows. Further, the ground floor portion
W.P.C.Nos.21493 & 21512/2012 5
has been assessed only for Rs.7,007/- whereas first floor was assessed as Rs.12,600/- and Rs.20,160/-.
“(i) In view of the discussion held above the Revenue Inspector, Chengannur Municipality is hereby directed to re-assess building No.XIV/536 and carry out corrections in the assessment desc as stair room having a plinth area of 30 m2 and assess the area of 316m2 as unauthorised super market under Section 242 of the Kerala Municipality Act.
(ii) Initiate proceedings under section 406 of the Kerala Municipality Act against the unauthorisedly cvonverted parking space having a plinth area of 316 m2.
(iii) Since there is no parking space for the building issue notice to the party seeking show cause within 15 days why occupancy certificate in respect of building nos.XIV/534, XIV/536, XIV/565, XIV/537, XIV/566, XIV/567 shall not be revoked?
W.P.C.Nos.21493 & 21512/2012
6
(iv) In view of the rejection of application cited as 6th above, the applicant is hereby directed to close the business and report before the undersigned within 3 days from the dte of receipt of this order failing which Health Inspector of Chengannur Municipality is directed to lock and seal the trade on issuance of a proper authorisation from the undersigned under Section 532(5) of Kerala Municipality Act, 1994.”
W.P.C.Nos.21493 & 21512/2012
7
This writ petition is hence dismissed.
(sd/-)
jsr
3 issues framed by the court
Whether the Municipality had the authority to reject a trade licence renewal and direct the closure of a business due to the unauthorised conversion of a parking area into a commercial space.
Whether the impugned orders directing the closure of the business were ultra vires or illegal.
Whether the petitioner was entitled to a deemed licence as the renewal application was pending.
4 provisions across 3 enactments
V.V. Abraham
Chengannur Municipality
Pradeep Koshi
A.M. Shauffique
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
