Allowed

Santhosh v., v. the Palakkad Municipality

Kerala HC25 Jul 2023WP(C)/3835/2023

Case brief

AI extract

What is this about?

The petitioner, a Scheduled Caste member, challenged rejection of his claim for concessional rent under Government Circulars P2 and P3 after the Kerala Municipality Act, 1994 came into force.

What did the court decide?

The writ petition is allowed; Exts.P6 and P7 set aside; respondents directed to levy fee at concessional rates of Exts.P2 and P3 and restore possession upon payment of adjusted arrears.

Santhosh v., Vs the Palakkad Municipality — Service and Employment | Kerala HC (2023)

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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 N.NAGARESH
TUESDAY, THE 25TH DAY OF JULY 2023 / 3RD SRAVANA, 1945
WP(C) NO. 3835 OF 2023

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PETITIONER:

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SANTHOSH V.,
AGED 27 YEARS, S/O. VELAYUDHAN, OKKANAMKODE HOUSE,
VEMBALUR P.O, ALATHUR, PALAKKAD DISTRICT, PIN – 678 502
BY ADVS.
JACOB SEBASTIAN
WINSTON K.V
DIVYA R. NAIR

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RESPONDENTS:

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1 THE PALAKKAD MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, PALAKKAD DISTRICT, PIN – 678 001

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2 THE SECRETARY, PALAKKAD MUNICIPALITY, MUNICIPAL OFFICE, PALAKKAD DISTRICT, PIN – 678 001

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3 THE MUNICIPAL COUNCIL, PALAKKAD MUNICIPALITY, MUNICIPAL OFFICE, PALAKKAD DISTRICT, REPRESENTED BY ITS CHAIRPERSON, PIN – 678 001

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4 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM DISTRICT, PIN – 695 001

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BY ADV
SRI.BINOY VASUDEVAN - SC
SMT.AMMINIKUTTY – SR.GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.07.2023,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P(C) NO.3835 OF 2023

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JUDGMENT

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Dated this the 25^th day of July, 2023

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The petitioner, who took shop room No.25 of Stadium Bust Stand Shopping Complex owned by the Palakkad Municipality, is before this Court seeking to direct respondents 1 to 3 to re-fix the advance amount as well as the monthly rent payable by the petitioner in tune with the provisions of the Kerala Municipality (Acquisition and Disposal of Property) Rules, 2000 and Exts.P2 and P3 Government Circulars.

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The petitioner states that he belongs to Scheduled Caste community. The Kerala Municipality (Acquisition and Disposal of Property) Rules, 2000 contemplate reservation of 10% of the buildings/stalls given on rent by the Municipalities to persons belonging to Scheduled Caste/Scheduled Tribe communities. The respondents invited applications for renting out shops in the year 2019, no reservation was specifically

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W.P(C) NO.3835 OF 2023

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stipulated in the notification.

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According to the petitioner, the petitioner applied

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for as a general candidate. The petitioner was allotted Shop room No.25. The petitioner made all initial deposits with the Municipality. Thereafter, the petitioner requested the respondents to give him concession in the rentals. According to the petitioner, Exts.P2 and P3 circulars provide that in respect of Shop rooms allotted to Scheduled Caste candidates, the rental to be levied would be the average rent in respect of the building. The petitioner is therefore entitled to the concession in rent as stipulated in Exts.P2 and P3.

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Though the petitioner requested the respondents to

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levy concessional rates of rent from the petitioner, the respondents rejected the petitioners application as is seen from Exts.P5, P6 and P7. The petitioner challenges Exts.P5, P6 and P7.

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W.P(C) NO.3835 OF 2023

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The Counsel for the petitioner would argue that Section 215 of the Kerala Municipality Act enables the Municipality to build and lend out commercial spaces. Under Rule 10 of the Kerala Municipality (Acquisition and Disposal of Property) Rules, 2000, the Municipality shall reserve for persons belonging to Scheduled Caste/Scheduled Tribe categories 10% of each item of the shop rooms, bunks, stalls etc. granted on rent or lease upon licence and the same shall be granted by inviting applications by notification from such categories alone.

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The course adopted by the Municipality is against the mandatory provisions. At any rate, the petitioner has been allotted a shop. Since the petitioner belongs to Scheduled Caste community, the petitioner should be extended with the benefit of Exts.P2 and P3 circulars, contended the counsel for the petitioner.

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Standing Counsel entered appearance and resisted the writ petition. On behalf of the respondents, it submitted that the petitioner participated in the tender for shop room No.25 on 26.06.2019 and offered an amount of Rs.26,100/-. On allotment, the petitioner executed an agreement agreeing to pay an amount of Rs.26,100/- as licence fee. The petitioner deposited Rs.3,13,200/- also as the rent for 12 months. The petitioner submitted application for concessional rate of rent. The Municipal Counsel in a meeting held on 28.09.2021, considered the petitioner’s application and rejected the request as per Ext.R1(a). Ext.R1(a) has not been challenged by the petitioner in the writ petition, without which no relief can be granted to the petitioner.

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It is further submitted that notices were issued to

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the petitioner asking him to pay arrears of rent avoid coercive proceedings. The petitioner has to pay an amount of Rs.16,25,222/- as on March, 2023 towards arrears which

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W.P(C) NO.3835 OF 2023

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includes GST as well as penal interest. Since the petitioner willfully defaulted in paying rent, the shop room No.25 was closed by the Municipality invoking the powers under Section 215 of the Act.

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As regards the contention of the petitioner regarding his rights based on Exts.P2 and P3 circulars, the Standing Counsel pointed out that those circulars were issued at a time when the earlier Municipality Act was in force. Exts.P2 and P3 circulars were issued in two litigations based on that Act. The law makers reconsidered the matter and has brought into effect a comprehensive legislation namely the Kerala Municipality Act, 1994. Neither the Act, 1994 nor any rules made there under provide for any concessional rate of rent to the Scheduled Caste/Scheduled Tribe community candidates, though the provision for reservation in allotment of shops is retained. As Exts.P2 and P3 circulars were issued when a different enactment was in place, by the enactment of

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W.P(C) NO.3835 OF 2023

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the Act, 1994, the said circulars have become unenforceable.

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The Standing Counsel further pointed out that merely because some of the Municipalities in Kerala are following Exts.P2 and P3 circulars and giving concessional rate of rent to Scheduled Caste/Scheduled Tribe candidates, that by itself would not give any legal right on the petitioner for claiming concessional rate. At any rate, after agreeing to pay rent at a fixed rate, the petitioner cannot go back and claim a concessional rate.

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I have heard the learned Counsel for the petitioner

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and the learned Standing Counsel representing the respondents.

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The petitioner belongs to Scheduled Caste community. The petitioner would urge that while notification

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was published for allocation of the shops, the provision in the Rules, 2000 for reservation to Scheduled Caste candidates was not adverted to by the Municipality. However, the

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W.P(C) NO.3835 OF 2023

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Standing Counsel would controvert the said allegation and would submit that the petitioner was allotted shop room No.25 in view of the reservation provided under the Rules, 2000.

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The claim of the petitioner is that the petitioner is entitled for concessional rate of interest as provided in Exts.P2 and P3 circulars. The Standing Counsel representing the respondents would urge that those circulars which were issued when a previous enactment was in place, are unenforceable after the enactment of the Act, 1994. Short question that is arising for consideration is the applicability of Exts.P2 and P3 Circulars after the enactment of the Kerala Municipality Act, 1994.

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Exts.P2 and P3 would indicate that those circulars were issued, when the Kerala Municipality Act, 1960 was in force. The Section 575 of the Kerala Municipality Act, 1994 deals with repeal and saving. Section 575 of the Act reads as

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follows : -

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W.P(C) NO.3835 OF 2023

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“575. Repeal and saving.- (1) With effect on and from the commencement of this Act the Kerala Municipalities Act, 1960 (14 of 1961), the Kerala Municipal Corporations Act, 1961 (30 of 1961), the Guruvayur Township Act, 1961 (43 of 1961), the Kerala Municipalities Ordinance, 1994 (2 of 1994) and the provisions of the Kerala Local Authorities (Constitution and Preparation of Electoral Rolls) Act, 1994 (4 of 1994), in so far as they relate to Municipalities, shall stand repealed.

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(2) Notwithstanding such repeal-

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(i) the committees in office at the commencement of this Act appointed by the Government to exercise the powers perform the functions of the municipal Councils; the Chairman of the Standing Committees under the Kerala Municipalities Act 1960 (14 of 1960) and the Collectors appointed by the Government to exercise the powers and perform the functions of the Councils, the Mayors and the Standing Committees under the Municipal Corporation Act, 1961 (30 of 1961) in office at such commencement and the Guruvayoor Township Committee constituted under the Guruvayoor Township Act, 1961 (43 of 1961) shall continue, as if it were the Municipal Councils or Corporation Councils or Township Committees constituted, respectively, under the said enactments, till corresponding Municipalities are constituted under this Act; or they are dissolved by the Government, whichever occurs earlier;

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(ii) any appointment, rules, including rules in the Schedules to the repealed Acts, bye-laws, regulations or forms made, notifications, notice, order, scheme or direction issued, tax fee or fine or other penalty, imposed, licence, permission or exemption granted under the repealed enactments and in force at such commencement shall, in so far as they are not inconsistent with the provisions of this Act, continue to

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W.P(C) NO.3835 OF 2023

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be in force as if made, issued, imposed or granted as the case may be by the corresponding Municipalities under the provisions of this Act until superseded, amended or modified by any appointment, rules, byelaws or regulations, notifications, notice, order, scheme, direction, tax, fee, fine or other penalty, licence, permission or exemption, made, issued, imposed or granted as the case may be under this Act;”

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The repeal and saving provision would indicate that any Rules, by laws, regulations, notifications, notices etc. granted under the repealed enactments and in force at such commencement shall, in so far as they are not inconsistent with the provisions of the Act, 1994 continue to be in force as if made, issued, imposed of granted as the case may be under the respondent-Municipalities under the provisions of this Act until superseded, amended or modified by any appropriate Rules, bye-laws, regulations, notifications etc. It is an admitted position that Rule 10 of the Kerala Municipality (Acquisition and Disposal of Property) Rules, 2000, provide for reservation for Scheduled Caste/Scheduled Tribe candidates. Rule 10 provides that the Municipality shall

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reserve for persons belonging to Scheduled Caste/Scheduled Tribe categories, 10% of each item of the shop rooms, bunks, stalls etc, granted on rent/lease upon licence and the same shall be granted by inviting applications by notification from such categories alone.

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As the Rules, 2000 framed in exercise of the powers conferred under Section 488 of the Kerala Municipality Act provides for reservation of Scheduled Caste/Scheduled Tribe categories, I am of the view that Exts.P2 and P3 Circulars issued granting concessional rate of rental/licence fee to the members belonging to Scheduled Caste/Scheduled Tribe community should be treated as consistent with the provisions of the Kerala Municipality Act, 1994 and the Rules made there under. As long as there is no apparent inconsistency between Exts.P2 and P3 and the new Act and the Rules, it cannot be said that Exts.P2 and P3 ceased to have any defect.

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In the said circumstance, it is declared that the petitioner will be entitled to the benefits of Exts.P2 and P3 Circulars. The writ petition is allowed. Exts.P6 and P7 are set aside. The respondents are directed to levy fee at the concessional rates applicable to the members belonging to Scheduled Caste/Scheduled Tribe candidates under Exts.P2 and P3 Circulars. The respondents shall communicate to the petitioner, the arrears of rent at the concessional rates as on date payable by the petitioner within a period of two weeks. If the petitioner remits the entire amount, the possession of

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the shop room shall be given back to the petitioner, after adjusting the security deposit already made by the petitioner.

Sd/-

N.NAGARESH JUDGE

ded

W.P(C) NO.3835 OF 2023

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APPENDIX OF WP(C) 3835/2023

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PETITIONER EXHIBITS

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EXHIBIT P1A TRUE COPY OF THE RELEVANT PAGE OF
THE PETITIONER'S S.S.L.C CERTIFICATE
DATED 28.04.2011.
EXHIBIT P2A TRUE COPY OF THE GOVERNMENT CIRCULAR
BEARING NO.2378/B1/1990 DATED
01.08.1990.
EXHIBIT P3A TRUE COPY OF THE GOVERNMENT CIRCULAR
BEARING NO.19217/C2/1991 DATED
10.05.1991.
EXHIBIT P4A TRUE COPY OF THE ORDER DATED
06.11.2021 ISSUED BY THE SECOND
RESPONDENT.
EXHIBIT P5A TRUE COPY OF THE APPEAL MEMORANDUM
DATED 30.05.2022 SUBMITTED BY THE
PETITIONER BEFORE THIRD RESPONDENT.
EXHIBIT P6A TRUE COPY OF THE FINAL NOTICE DATED
05.11.2022 ISSUED BY THE SECOND
RESPONDENT.
EXHIBIT P7A TRUE COPY OF THE NOTICE DATED
22.06.2022 ISSUED BY THE SECOND
RESPONDENT.

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RESPONDENT EXHIBITS

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EXHIBIT R1 (A)TRUE COPY OF THE DECISION OF THE
COUNCIL OF THE PALAKKAD MUNICIPALITY
DATED 28.09.2021
EXHIBIT R1 (B)TRUE COPY OF THE INTIMATION NO.R8-
29221/18 DATED 22.6.2022 ISSUED BY THE
2ND RESPONDENT

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W.P(C) NO.3835 OF 2023

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RESPONDENT EXHIBITS

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EXHIBIT R1(A)TRUE COPY OF THE DECISION IN AGENDA
NO.40 DATED 28-09-2021 OF THE COUNCIL
OF THE PALAKKAD MUNICIPALITY

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EXHIBIT R1(B)TRUE COPY OF THE NOTICE ISSUED ON
06-11-2021 UNDER SECTION 215(7) AND
215(8) OF THE KERALA MUNICIPALITY ACT,
1994

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EXHIBIT R1(C)TRUE COPY OF THE NOTICES ISSUED ON
22-06-2022 UNDER SECTION 215(7) AND
215(8) OF THE KERALA MUNICIPALITY ACT,
1994

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EXHIBIT R1(D)TRUE COPY OF THE NOTICES ISSUED ON
05-11-2022 UNDER SECTION 215(7) AND
215(8) OF THE KERALA MUNICIPALITY ACT,
1994

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PETITIONER EXHIBITS

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EXHIBIT P8THE TRUE COPY OF THE NOTICE DATED 11
MAY 2023 ISSUED BY THE THRIPUNITHURA
MUNICIPALITY

Santhosh v., v. the Palakkad Municipality

Case brief

What is this about?

What did the court decide?

Santhosh v., v. the Palakkad Municipality

Case brief

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What did the court decide?

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