Remanded

Biju.M.D., v. Kochi Municipal Corporation

Kerala HC20 Nov 2019WP(C)/21359/2019

Case brief

AI extract

What is this about?

In this writ petition, the High Court of Kerala set aside an order refusing to renew the petitioner's D&O licence for a fish vending stall. Directing the Secretary to reconsider the application based on past receipts and afford a hearing.

What did the court decide?

Set aside Ext.P4; direct Secretary to reconsider application for D&O licence adverting to past receipts and hear petitioner within two weeks.

Biju.M.D., Vs Kochi Municipal Corporation — Pension and Retirement Benefits | Kerala HC (2019)

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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 DEVAN RAMACHANDRAN

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WEDNESDAY, THE 20TH DAY OF NOVEMBER 2019 / 29TH KARTHIKA, 1941

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WP(C).No.21359 OF 2019(T)

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PETITIONERS:

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BIJU.M.D., AGED 47 YEARS, S/O CHACKO DEVASSY, MAINATTUPARAMBIL, MULAVUKADU, BOLGATTY, KANAYANNUR TALUK, ERNAKULAM DISTRICT-682 504.

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BY ADVS. DR.V.N.SANKARJEE SRI.V.N.MADHUSUDANAN SMT.R.UDAYA JYOTHI SRI.M.M.VINOD SMT.M.SUSEELA SRI.SUDHAKARAN V. SMT.ARYA BALACHANDRAN SRI.S.SIDHARDHAN

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RESPONDENTS:

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1 KOCHI MUNICIPAL CORPORATION, REPRESENTED BY ITS SECRETARY, PARK AVENUE, PIN-682 011.

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2 THE SECRETARY, KOCHI MUNICIPAL CORPORATION, PARK AVENUE, PIN-682 011.

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3 THE HEALTH OFFICER, KOCHI MUNICIPAL CORPORATION, PARK AVENUE, PIN-682 011.

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R1-3 BY SRI.K.ANAND, SC, COCHIN CORPN.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.21359 OF 2019

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JUDGMENT

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Dated this the 20th day of November 2019

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The petitioner has approached this Court

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impugning Ext.P4 proceedings issued by the Health Officer of Kochi Municipal Corporation, refusing to renew his D & O licence with respect to Stall No.112 inside the Cochin General Market.

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According to the petitioner, the stall was originally occupied by his father,

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Sri. M.C.Devassy, and that he had been remitting the licence fee for the last several years and more than a decade, as is evident from Exts.P8 to P14 receipts. He says that on subsequent his

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father's death, he is entitled to conduct the business; but that Ext.P4 has been issued in a

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manner so as to mean that this stall has never

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been allotted to his father or to him in the past.

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The petitioner, therefore, prays that

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Ext.P4 be set aside and the competent Authority of the Corporation be directed to consider his application for D & O licence afresh.

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Sri.K.Anand, learned Standing Counsel

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appearing for the Corporation, submits that a counter affidavit has been filed on behalf of his

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client, wherein the following has been stated:

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"...3.It is submitted that the petitioner has submitted an application on 21.03.2018 for renewing the D& O license for the period of 2018-2019 in Stall No.112 in the 18th Circle of Cochin Corporation. The petitioner has also submitted the copy of judgment dated 25/02/2014 in WP(C) No 5184/2014 along with the application. The above said application was forwarded to revenue section of Cochin Corporation to verify the ownership of the Stall, rental dues and tax dues for the purpose of receiving application fees. It was reported by the revenue section of the Cochin Corporation that the Stall No 112 is not in existence as per the records of register.

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4.It is submitted that the application submitted by the petitioner for renewing the D &O license for the period of 2018-2019 and

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for substituting the petitioner as its licensee after the demise of his father, along with the related documents was laid before the Health standing committee for appropriate decision. The health standing committee constituted on 17/09/2018 has found that accepting license fee without ownership vide receipt no.17553 dated 29/03/2017 for the year 2017-18 was a wrong action. Since the stall no.112 is not in existence as per the revenue records, the health standing committee has decided that the application for D&O of the petitioner was not in compliance with law and was rejected vide 10th number decision dated 17/09/2018. The said decision of rejecting the application was intimated to the petitioner.

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5.Thereafter, petitioner has submitted another application on 30/03/2019 along with the copy of the WPC 5418/2014 dated 25/02/2014, for renewing the D & O License in respect of the stall no.112 for the period 2018-19. The said application was also forwarded to the revenue section of Cochin Corporation to verify the ownership of the Stall, rental dues and tax dues. It was also reported that the Stall No.112 is not in existence as per the revenue register records. The said aspect was also intimated to the petitioner vide as per Exhibit P4.

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6.Thereafter the petitioner has submitted

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WP(C).No.21359 OF 2019

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another representation dated 31/05/2019 stating that the license was previously renewed on 29/03/2017 and hence the petitioner requested to renew the license for the period 2018-19. Ext.P7 was issued to the petitioner informing that the application could not be considered due to the decision of the Health Standing Committee report and the report of the Revenue section of the Cochin Corporation.

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7.It is submitted that D & O license is issued to the stalls numbered (remitting the legal license fees) in the market. It is pertinent to point out that D & O licence cannot be issued open spaces for carrying out fish, vegetable vending business. The petitioner is carrying out the fish vending business in the open space. On the basis of the decision taken by the Health Standing Committee and the report of Revenue section, the application was rejected and no further steps can be taken by the corporation."

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The learned Standing Counsel, therefore, prays that this writ petition be dismissed.

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As is clear from the afore extracted

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averments in the counter affidavit, the stand of

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the Corporation is that there is no stall by

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number 112 and that even if it is there, it has

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never been allotted to the petitioner's father in

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the past. They also appear to take the stand

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that issuance of receipts in the name of Sri.M.C.Devassy was in error, because in the absence of such a stall and documents to show ownership over the same, such receipts could not have been issued. They also seem to rely upon a report of the Health Committee, wherein it is stated that the petitioner is conducting the business in an open area.

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That said, however, the fact remains

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that the petitioner has been able to, at least

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prima facie, establish that there indeed is a stall by number 112 and that licence fees for it had been paid for a long number of years, as is evident from the receipts produced on record as Exts.P8 to P14. There is no specific reply in the counter affidavit as to these receipts, except by saying that it may have been issued in error. I cannot accede to this stand of the

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Corporation since, as a public Authority, they

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had a duty to give necessary opportunity to the petitioner based on the receipts issued in the

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past and only then to have taken a decision; and not to have merely gone on the basis of a report obtained from the Health Committee, which states that such a stall was never in existence.

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Resultantly, I set aside Ext.P4; and

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consequentially, direct the Secretary of the Corporation to reconsider the petitioner's application for D & O licence, adverting to Exts.P8 to P14 receipts; and if, for any reason, it is found not possible to accommodate him in

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the stall which he now claims, a decision may be

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taken to accommodate in another area, without causing any prejudice or detriment to any other person or to public health, so as to enable him to eke out his livelihood, particularly taking note of the fact that he is stated to be now suffering from debilitating deceases and urgently requires an avocation to sustain himself.

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The afore shall be done by the Secretary

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of the Corporation, after affording an opportunity of being heard to the petitioner, as expeditiously as is possible, but not later than two weeks from the date of receipt of a copy of this judgment; for which purpose, I direct the petitioner to mark appearance in the office of the Secretary at 11 a.m. on 25.11.2019, on which

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day he shall be heard and the Secretary shall then take an appropriate decision within the period afore fixed.

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This writ petition thus ordered.

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Sd/-

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DEVAN RAMACHANDRAN

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JUDGE

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WP(C).No.21359 OF 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 12.4.2019 ISSUED BY DR BABU MDDM, DEPARTMENT OF NEPHROLOGY, LISIE HOSPITAL, ERNAKULAM, WITH HAEMO DIALYSIS REPORT

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EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 25.2.2014 IN WPC NO 5418/2014 OF THIS HON'BLE COURT. EXHIBIT P3 TRUE COPY OF THE LICENSE FEE RECEIPT ISSUED BY THE RESPONDENT CORPORATION TO THE PETITIONER FOR FISH SALE IN STALL NO 112 OF THE ERNAKULAM PUBLIC MARKET. EXHIBIT P4 TRUE COPY OF THE LETTER NO ISO/MOH 14/92693/2019 DATED 14.5.2019 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER EXHIBIT P5 TRUE COPY OF THE PETITIONERS REPRESENTATION DATED 31.5.2019 SUBMITTED TO THE 2ND RESPONDENT EXHIBIT P6 TRUE COPY OF RECEIPTS DATED 27.2.2015, 28.3.2016 AND 23.9.2017 ISSUED BY THE 2ND RESPONDENT EXHIBIT P7 TRUE COPY OF THE NOTICE NO ISO/MOH 14/14291/2018 DATED 15.6.2019 ISSUED BY THE 3RD RESPONDENT EXHIBIT P8 TRUE COPY OF RECEIPTS (CHALLAN) OF LICENSE FEE, LATE FEE AND KPFA ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER'S FATHER DEVASSY FOR SALE OF FISH IN ERNAKULAM MARKET FOR THE PERIOD OF 1992-93 DATED 17.7.1992. EXHIBIT P9 TRUE COPY OF RECEIPTS (CHALLAN) OF LICENSE FEE, LATE FEE AND KPFA ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER'S FATHER DEVASSY FOR SALE

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OF FISH IN ERNAKULAM MARKET FOR THE PERIOD OF 1993-94 DATED 25.2.1993.

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EXHIBIT P10 TRUE COPY OF RECEIPTS (CHALLAN) OF LICENSE FEE, LATE FEE AND KPFA ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER'S FATHER DEVASSY FOR SALE OF FISH IN ERNAKULAM MARKET FOR THE PERIOD OF 1994-95 DATED 13.12.1994. EXHIBIT P11 TRUE COPY OF RECEIPTS (CHALLAN) OF LICENSE FEE, LATE FEE AND KPFA ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER'S FATHER DEVASSY FOR SALE OF FISH IN ERNAKULAM MARKET FOR THE PERIOD OF 1995-96 DATED 20.7.1995. EXHIBIT P12 TRUE COPY OF RECEIPTS (CHALLAN) OF LICENSE FEE, LATE FEE AND KPFA ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER'S FATHER DEVASSY FOR SALE OF FISH IN ERNAKULAM MARKET FOR THE PERIOD OF 1996-97 DATED 14.5.1996. EXHIBIT P13 TRUE COPY OF RECEIPTS (CHALLAN) OF LICENSE FEE, LATE FEE AND KPFA ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER'S FATHER DEVASSY FOR SALE OF FISH IN ERNAKULAM MARKET FOR THE PERIOD OF 1997-98 DATED 15.4.1997. EXHIBIT P14 TRUE COPY OF RECEIPTS (CHALLAN) OF LICENSE FEE, LATE FEE AND KPFA ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER'S FATHER DEVASSY FOR SALE OF FISH IN ERNAKULAM MARKET FOR THE PERIOD OF 1998-99 DATED 21.3.1998. EXHIBIT P15 TRUE COPY OF THE PHOTOGRAPHS (4 IN NUMBER) DATED 23.10.2019.

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//TRUE COPY// PA TO JUDGE

Biju.M.D., v. Kochi Municipal Corporation

Case brief

What is this about?

What did the court decide?

Biju.M.D., v. Kochi Municipal Corporation

Case brief

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