Petitioner challenged Tribunal order directing temporary shift of bunk tea shop to facilitate hospital construction. Court held Tribunal acted within jurisdiction and findings were not perverse, dismissing the writ petition.
Writ petition dismissed. No costs.
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 RAJA VIJAYARAGHAVAN V
FRIDAY, THE 14TH DAY OF FEBRUARY 2020 / 25TH MAGHA, 1941
WP(C).No.4225 OF 2020(C)
PETITIONER :
ASHARAF
AGED 53 YEARS S/O. ISMAIL, PARAKKUDI HOUSE, CHILAKOOR, VARKALA, THIRUVANANTHAPURAM DISTRICT.
BY ADV. SRI.M.L.SURESH KUMAR
RESPONDENTS :
3 THE VARKALA MUNICIPALITY REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, THIRUVANANTHAPURAM DISTRICT, PIN-695141. R1-3 BY SRI.V.RENJITH KUMAR, SC, VARKALA MUNICIPALITY
SRI T.P SAJAN SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
The petitioner herein has approached this Court seeking to quash Ext.P4 order passed by the Tribunal for Local Self Government Institutions, Thiruvananthapuram (for short, the Tribunal) and Ext.P5 order passed by the 2nd respondent directing him to shift the bunk tea shop No.10 run by him from the main gate and compound wall of the Varkala Taluk Hospital to an adjacent place till the completion of the renovation works of the compound wall and gate of the hospital is completed.
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shifting of the bunk shall be kept abeyance till then. It appears that his application before the Municipal counsel was decided against him. Challenging the said order, he preferred a revision petition before the Tribunal. The Tribunal, after considering the contentions of the petitioner herein as well as the Municipality, partly allowed the revision petition and the order was modified. To protect the interest of the petitioner, he was ordered to temporarily shift the bunk shop from the main gate and compound wall of the Varkala Taluk Hospital to the sub road leading to the said hospital till the completion of renovation works of the compound wall and the gate of the hospital is completed. Immediately thereafter, the petitioner herein was served with Ext.P5 order directing him to shift the bunk within a period of 24 hours. The said order is under challenge.
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has referred to Ext.P4 order passed by the Tribunal and it is submitted that the entire aspects were taken note of by the Tribunal and certain directions have been issued to protect the interest of the petitioner herein. It is contended that the petitioner is not entitled to run the bunk tea shop as a matter of right as it was allotted to him by the 1st respondent Municipality. The bunk is situated in road 'puramboke'. The petitioner is bound by the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014, which deals with the mandatory obligations to be followed in conducting business in a public place. It is contended that the construction of the entrance gate, compound wall and portions of the hospital was a long cherished plan of the Municipality and an amount of Rs.25 lakhs have been sanctioned for that purpose from the MLA fund. Unless the bunk is shifted from the place from where it is presently located, the proposed plans will have to be shelved and the amounts will lapse. According to the learned Standing Counsel, there is no merit in the submission that only 24 hours time was granted for shifting the premises. He also points out that Ext.P2 order was passed on 31.08.2019 and after a string of litigation before various forums, Ext.P5 order was passed.
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gone through the records produced and also the order passed by the Tribunal. Admittedly the bunk was allotted to the petitioner by the Municipality on the strength of a license. The records reveal that the petitioner was asked to shift the bunk from its present position to facilitate the renovation work of the Varkala Taluk Hospital. If the bunk is not shifted from its present position, it is likely to impede the construction of the entrance gate, compound wall and portions of the Taluk Hospital. The Tribunal has also noticed that the work is required to be finished in this financial year or else the fund may lapse. To safeguard the interest of the petitioner, the Tribunal has directed him to shift the Bunk from its present position temporarily until the renovations works are complete. It would not be out of place to mention that when Act 7 of 2014 enables the local authority to relocate the vendors and being a licensee, the petitioner cannot be heard to contend that he has acquired a vested right to cling on to the very same premises even though it may prove adverse to public interest. I find that the Tribunal has sympathetically considered the contentions of the petitioner and has put in place certain protections to safeguard his interests as well.
Having gone through the entire records, I am of the considered opinion that the Tribunal has acted well within its jurisdiction and the
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finding so arrived at cannot be said to be perverse or irrational warranting interference in exercise of the extra ordinary writ jurisdiction under Article
226 of the Constitution of India.
This Writ Petition will stand dismissed. No costs.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
NS
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APPENDIX
PETITIONER(S) EXHIBITS:
| EXHIBIT P1 | THE TRUE COPY OF THE ORDER NO.T3/395/95A DATED 26.6.1995. |
|---|---|
| EXHIBIT P2 | TRUE COPY OF THE NOTICE NO.H3-1480/19 DATED 31.08.2019. |
| EXHIBIT P3 | TRUE COPY OF THE JUDGMENT DATED 19.9.2019 IN WPC 24446/2019. |
| EXHIBIT P4 | THE TRUE COPY OF THE ORDER DATED 28.1.2020 IN REVISION PETITION NO.111/2019 OF TRIBUNAL FOR LOCAL SELF GOVT. INSTITUTIONS, THIRUVANANTHAPURAM. |
| EXHIBIT P5 | THE TRUE COPY NO.RS-113-1480/19 DATED 12.2.2020 ISSUED BY THE 2ND RESPONDENT. |
RESPONDENT(S) EXHIBITS :NIL
2 issues framed by the court
Whether the Tribunal acted within its jurisdiction directing the petitioner to temporarily shift his bunk tea shop to facilitate hospital renovations.
Whether the finding of the Tribunal is perverse or irrational warranting interference under Article 226 of the Constitution.
2 provisions across 2 enactments
Asharaf
The Chairperson Varkala Municipality
The Secretary Varkala Municipality
Varkala Municipality
Raja Vijayaraghavan V
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
Raja Vijayaraghavan V
Parties & counsel
