Disposed

A.Ziyad v. the Thiruvananthapuram Corporation

Kerala HC7 Nov 2017WP(C)/34218/2017

Case brief

AI extract

What is this about?

The Court disposed of a writ petition filed against the Corporation for closing the Petitioner's shop without a hearing. Directing the Corporation to pass fresh orders after affording an opportunity of hearing to both parties, the Court also directed simultaneous consideration of the licence application in light of an Apex Court decision, allowing the Petitioner to remove goods pending disposal.

What did the court decide?

Directions to pass fresh orders after hearing, consider licence application based on Sudhakaran judgment, and permit removal of goods.

A.Ziyad Vs the Thiruvananthapuram Corporation — Service and Employment | Kerala HC (2017)

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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 P.B.SURESH KUMAR

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TUESDAY, THE 7TH DAY OF NOVEMBER 2017/16TH KARTHIKA, 1939

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WP(C).No. 34218 of 2017 (B) ----------------------------

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PETITIONER(S):

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A.ZIYAD S/O ABDUL RAHMAN, T.C 48/484(7), 'RAYYAN" KALLATTUMUKKU, MANACAUD PO, THIRUVANANTHAPURAM. 695009.

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BY ADVS.SMT.M.A.ZOHRA SRI.B.SATHIQ

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RESPONDENT(S):

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1. THE THIRUVANANTHAPURAM CORPORATION REPRESENTED BY THE SECRETARY, MUNICIPAL CORPORATION BUILDINGS, THIRUVANANTHAPURAM, PIN.695003.

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2. JASSY SAINALABDEEN, S/O FOUZIL SAINULABDEEN, PARAMBIL THEKKATHIL, KOLLAM VILLAGE, KURIPUZHA WEST, KAVANAD PO, KOLLAM.691003.

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R BY SRI.P.K.MANOJKUMAR,SC,TVPM CORPORATION

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 34218 of 2017 (B)

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APPENDIX

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PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1 TRUE COPY OF THE RENTAL AGREEMENT DATED 23.2.2015. EXHIBIT P2 TRUE COPY OF THE INJUNCTION ORDER IN I.A NO.3641/2016 IN O.S NO.811/2016 OF THE 1ST ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM.

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EXHIBIT P3 TRUE COPY OF THE NOTICE DATED 24.11.2016 WAS SERVED MUCH LATER BY THE ZONAL OFFICE OF THE 1ST RESPONDENT DURING LAST WEEK OF DECEMBER ON THE PETITIONER.

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EXHIBIT P4 TRUE COPY OF THE REPLY GIVEN TO EXT.P3 NOTICE ON 3.1.2017.

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EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 26.5.2017 WITH RECEIPT SUBMITTED BY THE PETITIONER BEFORE THE SECRETARY OF CORPORATION.

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EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 16.9.2017 IN WP(C) NO.26839/2017 (D) OF THIS HON'BLE COURT.

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EXHIBIT P7 TRUE COPY OF THE CLOSURE MAHAZAR DATED 11.10.2017.

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EXHIBIT P8 TRUE COPY OF THE PETITION DATED 16.10.2017 FILED BEFORE THE FIRST RESPONDENT UNDER THE R.T.I ACT 2005 ALONG WITH RECEIPT.

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EXHIBIT P9 TRUE COPY OF THE FILES NOTES DATED 23.10.2017 TO THE PETITIONER IN REPLY TO EXT.P8.

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RESPONDENT(S)' EXHIBITS : NIL -----------------------

//TRUE COPY//

P.A. TO JUDGE

SKS

P.B.SURESH KUMAR, J.

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==================

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W.P.(C.) No. 34218 of 2017

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Dated this the 7^th day of November, 2017

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JUDGMENT

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The petitioner is running a shop in a building owned by the second respondent within the limits of the first respondent Corporation (the Corporation). The second respondent has preferred a complaint before the Corporation alleging that the petitioner is running the business without obtaining the licence from the Corporation. Since the Corporation has not taken any action on the said complaint, the second respondent approached this Court by filing W.P.(C.) No.26839 of 2017 and this Court disposed of the said writ petition directing the Corporation to take a decision on the complaint preferred by the second

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W.P.(C.) No.34218/2017

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respondent which was produced in the said writ petition as Ext.P3, after affording the petitioner as also the second respondent an opportunity of hearing. Ext.P6 is the judgment rendered in the said writ petition. The grievance voiced by the petitioner in the writ petition is that in purported compliance of the direction contained in Ext.P6 judgment, the shop of the petitioner has been closed down without affording the petitioner an opportunity of hearing. The petitioner, therefore seeks appropriate directions in this regard in the writ petition.

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Heard the learned counsel for the petitioner, the learned Standing Counsel for the Corporation as also the learned counsel for the second respondent.

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The learned Standing Counsel for the Corporation conceded that the shop run by the petitioner has been closed down in furtherance to Ext.P6 judgment and notice has not been issued to the petitioner before closing down the shop as ordered in Ext.P6 judgment.

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W.P.(C.) No.34218/2017

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As per Ext.P6 judgment, this Court directed

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action against the petitioner only after affording him an opportunity of hearing. The learned counsel for the petitioner submits that the petitioner has already preferred Ext.P5 application for grant of licence and the application is pending consideration before the competent authority of the Corporation. According to the learned counsel, in so far as the petitioner has already preferred an application for licence, he is entitled to the benefit of deemed licence provided for under the Kerala Municipality Act and that therefore, the shop was not liable to be closed down. It is also pointed out by the learned counsel for the petitioner that the Corporation is not granting the licence applied for by the petitioner for the reason that he is unable to obtain consent from the landlord as required by Section 492(3) of the Kerala Municipality Act, 1994. It is further pointed out by the learned counsel that in the light of the decision of the Apex Court in Sudhakaran v. Corporation of Trivandrum

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W.P.(C.) No.34218/2017

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[2016 (3) KLT 247 (SC)], in so far as the possession of the petitioner's shop room is admitted to be lawful by the second respondent, the Corporation is not justified in insisting the consent of the landlord for the purpose of granting the licence applied for by the petitioner. According to the learned counsel, had the petitioner been given an opportunity of hearing, he would have certainly pointed out the said aspect to the Corporation.

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Having regard to the facts and circumstances

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of the case and the submissions made at the Bar, the writ petition is disposed of as follows:

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The first respondent shall pass fresh orders on

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Ext.P3 complaint in W.P.(C) No.26839 of 2017 after affording the petitioner as also the second respondent an opportunity of hearing.

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The Corporation shall also consider the application preferred by the petitioner for grant of licence in the light of the decision of the Apex Court in Sudhakaran's

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W.P.(C.) No.34218/2017

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case (supra) simultaneous to the decision to be taken on Ext.P3 in W.P.(C) No.26839 of 2017.

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Pending disposal of Ext.P3 complaint in W.P.(C)

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No.26839 of 2017 and the application for licence submitted

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by the petitioner, the petitioner shall be permitted by the Corporation to remove the goods from the shop room.

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The directions 1 and 2 above shall be complied

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with within 10 days from the date of production of a copy of the judgment.

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sd/-

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P.B. SURESH KUMAR, JUDGE

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SKS

A.Ziyad v. the Thiruvananthapuram Corporation

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A.Ziyad v. the Thiruvananthapuram Corporation

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