IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
WP(C) NO. 20072 OF 2020
PETITIONER:
VYAPARI VYAVASAI CO-OPERATIVE SOCIETY LTD. NO. A -
1091, KAYAMKULAM REPRESENTED BY ITS SECRETARY
SUJITHA GOPAKUMAR, VYAPARA BHAVAN,
MARKET ROAD, KAYAMKULAM.
BY ADV A.SHAFEEK (KAYAMKULAM)
RESPONDENTS:
1 THE KAYAMKULAM MUNICIPALITY
REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE,
KAYAMKULAM, ALAPPUZHA DISTRICT - 690 502.
2 THE SECRETARY, KAYAMKULAM MUNICIPALITY
MUNICIPAL OFFICE, KAYAMKULAM,
ALAPPUZHA DISTRICT - 690 502.
3 THE MUNICIPAL COUNCIL
KAYAMKULAM MUNICIPALITY REPRESENTED BY ITS
CHAIRMAN, MUNICIPAL OFFICE, KAYAMKULAM - 690 502.
4 SHAMILA ANIMON
W/O.ANIMON, THUNDAYATH HOUSE, CHERAVALLY,
KAYAMKULAM - 690 502.
BY ADV.T.R.RAJAN, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 03.06.2022, ALONG WITH WP(C).26477/2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C).Nos.20072/20 & 26477/21
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
WP(C) NO. 26477 OF 2021
PETITIONER:
VYAPARI VYAVASAYI CO-OPERATIVE SOCIETY LTD.
NO.A 1091, KAYAMKULAM REPRESENTED BY ITS
SECRETARY SUJITH GOPAKUMAR, VYAPARA BHAVAN,
MARKET ROAD, KAYAMKULAM.
BY ADV A.SHAFEEK (KAYAMKULAM)
RESPONDENTS:
1 THE KAYAMKULAM MUNICIPALITY
REPRESENTED BY ITS SECRETARY,
MUNICIPAL OFFICE, KAYAMKULAM,
ALAPPUZHA DISTRICT - 690 502.
2 THE SECRETARY
KAYAMKULAM MUNICIPALITY, MUNICIPAL OFFICE,
KAYAMKULAM, ALAPPUZHA DISTRICT - 690 502.
3 THE MUNICIPAL COUNCIL
KAYAMKULAM MUNICIPALITY REPRESENTED BY ITS
CHAIRMAN, MUNICIPAL OFFICE,
KAYAMKULAM - 690 502.
4 SHAMILA ANIMON
W/O.ANIMON, THUNDAYATH HOUSE,
CHERAVALLY, KAYAMKULAM - 690 502.
BY ADVS.
SHRI.T.R.RAJAN, SC, KAYAMKULAM MUNCIPALITY
SAJU J PANICKER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 03.06.2022, ALONG WITH WP(C).20072/2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C).Nos.20072/20 & 26477/21
3
P.V.KUNHIKRISHNAN, J.
--------------------------------
W.P.(C).Nos.20072 of 2020 & 26477 of 2021
----------------------------------------------
Dated this the 03rd day of June, 2022
JUDGMENT
These two writ petitions are connected and therefore, I am disposing these writ petitions by a common judgment.
2. I will narrate the facts in W.P.(C). No.26477 of 2021.
Ext.P11 is an order passed by the Secretary of Kayamkulam Municipality, by which the petitioner was directed to vacate 3 rooms belonging to the Municipality in the industrial estate.
Ext.P11 order was challenged by the petitioner before this Court by filing W.P.(C). No.16056 of 2018. This Court, as per Ext.P16 judgment, allowed the writ petition and directed the Secretary of Kayamkulam Municipality to take action in accordance to law, mainly for the reason that Ext.P11 is an order passed without hearing the parties. After Ext.P16 judgment, the Secretary of Kayamkulam Municipality placed the matter before the Municipal Council for the decision. At that stage, the petitioner filed W.P.(C). No.20072 of 2020. This Court passed an interim order in that writ petition on W.P.(C).Nos.20072/20 & 26477/21 4 28.09.2020 by which this Court observed that the Municipal Council shall not consider the matter, but clarified that the Secretary of Kayamkulam Municipality is entitled to take an appropriate decision, since the jurisdiction is conceded to by the petitioner. Thereafter Ext.P30 order is passed. The same is challenged in this case.
3. Heard the learned counsel for the petitioner, learned Standing Counsel for the Municipality and also the learned counsel for the 4th respondent.
4. The learned counsel for the petitioner reiterated his contentions in these writ petitions. The learned counsel submitted that when this Court, as per Ext.P16 judgment, directed the Secretary of Kayamkulam Municipality to reconsider the matter after giving an opportunity of hearing to both sides, the Secretary passed Ext.P30 order in which there is no consideration of facts. It is not a speaking order.
Therefore the counsel submitted that Ext.P30 order will not stand. The counsel further submitted that the eviction order was originally passed by the Secretary of Kayamkulam Municipality based on an alleged complaint filed by the 4 th respondent. According to the petitioner, it is a forged W.P.(C).Nos.20072/20 & 26477/21 5 document and petitions are submitted before the Secretary pointing out the forgery. The learned Standing Counsel for the Municipality supported Ext.P30 order. He submitted that the room admittedly belongs to the Municipality and the Municipality is entitled to pass eviction order and there is nothing wrong in Ext.P30. The learned counsel for the 4 th respondent submitted that the allegation that the petition filed by the 4th respondent is a forged one is not correct and if the petitioner is aggrieved, he can approach the appropriate authority and the 4th respondent is ready to defend the case.
5. This Court considered the contentions of the petitioner and the respondents. First, I will consider Ext.P16 judgment passed by this Court. It will be better to extract the relevant portion of that judgment:
"3. Having heard the learned counsel for the parties and perused the paper book, Ext.P16 impugned notice commanding the petitioner to close down the industrial unit within 7 days is wholly fallacious and arbitrary. The authorities are expected to discharge the obligations in a proper and reasonable manner. If at all there was some kind of volition or non compliance of the statutory provisions, at least an opportunity of hearing ought to have been afforded to the petitioner society, W.P.(C).Nos.20072/20 & 26477/21 6 because closing of the business, which has been established on a no profit basis, would not only result into taking away the bread and butter of numerous employees, but would also affect the economic conditions of the society. For the above reason, the impugned Ext.P16 order is hereby set aside and the matter is remitted to the second respondent, Kayamkulam Municipality to take action, in accordance with law, after affording an opportunity of hearing to the petitioner.
Writ petition stands disposed of as above."
6. On a perusal of Ext.P16 judgment it is clear that the direction is issued to the Secretary of Kayamkulam Municipality. Thereafter the Secretary placed the matter before the Municipal Council. This cannot be justified. That is why the petitioner filed W.P.(C). No.20072 of 2020. This Court passed an interim order in that writ petition on 28.09.2020, which is extracted hereunder:
"The petitioner asserts that in view of the directions in Ext.P16 judgment, the 3 rd respondent Council of the Kayamkulam Municipality cannot take a decision as regards their eviction from the industrial estate situated in Ward No.24. They allege that in spite of this, the 2nd respondent-Secretary is placing the file before the 3rd respondent for orders and prays that further action be stayed.
Sri.T.R.Rajan, learned Standing Counsel for the W.P.(C).Nos.20072/20 & 26477/21 7 Municipality, however, submits that going by the applicable Rules, the jurisdiction in this matter is only with the 3rd respondent and not the 2 nd respondent.
I, therefore, adjourn this matter to be called on 08.10.2020, for the Kayamkulam Municipality to file an appropriate statement; until which time, all further action being pursued by the 3rd respondent will stand deferred; however, clarifying that the 2 nd respondent will be entitled to take an appropriate decision, since this jurisdiction is conceded to by the petitioner."
7. Based on the clarification issued by this Court in the interim order on 28.09.2020 in W.P.(C). No.20072 of 2020, the Secretary of Kayamkulam Municipality passed Ext.P30 order. I perused Ext.P30 order. It is not a speaking order.
There is no consideration of the facts. There is no resolution of the contentions raised by the parties. The relevant portion of the order is extracted hereunder:
"ടി തീരുമാന പ്രകാരം വ്യാപാരി വ്യവസായി സഹകരണ സംഘത്തിന്റെ ലൈസൻസ് റദ്ദ് ചെയ്യുന്നതിന് തീരുമാനിച്ചിട്ടുള്ളതാണ്. ആയതിനെതിരെ W.P.(C). No.16056/18 പ്രകാരം ബഹു. ഹൈക്കോടതിയിൽ കേസ് ഫയൽ ചെയ്തിട്ടുള്ളതും 21.01.2020 ൽ വിധി വന്നിട്ടുള്ളതുമാണ്. ആയതിൻ പ്രകാരം നടപടികൾ സ്വീകരിച്ചുവരികയാണ്. സംഘം വീണ്ടും W.P.(C).Nos.20072/20 & 26477/21 8 ഹൈക്കോടതിയെ സമീപിക്കുകയും, ബഹു.ഹൈക്കോടതിയുടെ 28.09.2020 ലെ W.P.(C). No.20072/20 നമ്പർ ഉത്തരവ് പ്രകാരം ഉചിതമായ തീരുമാനം എടുക്കുന്നതിന് നഗരസഭാ സെക്രട്ടറിയെ ചുമതലപ്പെടുത്തിയിട്ടുള്ളതാണ്. ടി നോട്ടീസ് കൈപ്പറ്റി 15 ദിവസത്തിനുള്ളിൽ ടി കെട്ടിടങ്ങൾ ഒഴിഞ്ഞു പൂട്ടി താക്കോൽ നഗരസഭയെ രേഖാമൂലം ഏല്പിക്കേണ്ടതാണ് എന്ന് അറിയിക്കുന്നു."
8. I am dissatisfied the way in which the Secretary of Kayamkulam Municipality passed Ext.P30 order. It will not stand. This order is to be set aside and the Secretary of Kayamkulam Municipality should pass orders as directed by this Court in Ext.P16 judgment and as clarified by this Court in the interim order dated 28.09.2020 in W.P.(C). No.20072 of 2020. The learned counsel for the petitioner submitted that the complaint filed by the 4th respondent is a forged one and a petition is pending before the Secretary of Kayamkulam Municipality. The Secretary of Kayamkulam Municipality is directed to consider that also and take appropriate steps in accordance to law. All the contention of the parties can be left open and the parties can be allowed to agitate the matter before the Secretary of Kayamkulam Municipality in accordance to law.
W.P.(C).Nos.20072/20 & 26477/21 9 Therefore, these two writ petitions are disposed of in the following manner:
1. Ext.P30 order is set aside.
2. The Secretary of Kayamkulam Municipality is directed to reconsider the matter in the light of the specific directions in Ext.P16 judgment and also in the interim order dated 28.09.2020 in W.P.(C). No.20072 of 2020.
3. Before passing final orders, the Secretary of Kayamkulam Municipality will hear the petitioner and all affected parties. The Secretary will pass appropriate orders in accordance to law, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment.
4. The Secretary of Kayamkulam Municipality will also take appropriate decision in the complaint which is submitted by the petitioner and the President of the Kudumbasree about the alleged forgery committed by the 4 th respondent and take appropriate steps, after W.P.(C).Nos.20072/20 & 26477/21 10 giving an opportunity of hearing to the petitioner and other affected parties including the 4th respondent, within the above period itself.
5. All the contention of the parties are left open and the parties are free to agitate the matter before the Secretary of Kayamkulam Municipality in accordance to law.
Sd/-
P.V.KUNHIKRISHNAN JV JUDGE
W.P.(C).Nos.20072/20 & 26477/21 11 APPENDIX OF WP(C) 20072/2020 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF REGISTRATION DATED 16/8/2004 ISSUED BY THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES.
EXHIBIT P2 TRUE COPY OF THE QUOTATION DATED 10/11/2008 INVITING APPLICATION BY THE 1ST RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE MINUTES DATED 29/1/2009 OF THE MUNICIPAL COUNCIL MEETING OF THE 1ST RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 9/3/2009 ISSUED BY THE 2ND RESPONDENT ON THE BASIS OF EXT.P4 DECISION.
EXHIBIT P5 TRUE COPY OF THE APPROVAL ORDER ALONG WITH COVERING LETTER DATED 26/3/2010 ISSUED BY THE JOINT REGISTRAR CO- OPERATIVE SOCIETIES, ALAPPUZHA. EXHIBIT P6 TRUE COPY OF THE BOUCHER SHOWING SOME OF THE ITEMS PRODUCED AT THE UNIT. EXHIBIT P7 TRUE COPY OF THE SANCTION LETTER DATED 11/11/2014 ISSUED BY THE DISTRICT INDUSTRIES CENTRE, ALAPPUZHA.
EXHIBIT P8 TRUE COPY OF THE LICENSE ISSUED UNDER FSS ACT, 2006 FOR A PERIOD FROM 15/9/2017 TO 14/9/2018.
EXHIBIT P9 TRUE COPY THE LICENSE ISSUED FOR SODA MANUFACTURING THE UNIT DURING THE PERIOD 2017-18.
EXHIBIT P9(A) TRUE COPY OF THE LICENSE ISSUED FOR FLOUR MILL UNIT DURING THE PERIOD 2017-18.
EXHIBIT P10 TRUE COPY OF THE RECEIPT DATED 6/3/2018 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P11 TRUE COPY OF THE ORDER NO.R4/9215/18 DATED 2/5/2018 ISSUED BY THE 2ND RESPONDENT AND SERVED ON THE PETITIONER ON 10/5/2018.
EXHIBIT P12 TRUE COPY OF THE MINUTES OF THE COUNCIL MEETING HELD ON 31/3/2018. W.P.(C).Nos.20072/20 & 26477/21 12 EXHIBIT P13 TRUE COPY OF THE SO CALLED APPLICATION SUBMITTED BY THE CHAIR PERSON OF ADS SMT.AMINA ON 8/11/2017.
EXHIBIT P14 TRUE COPY OF THE PETITION DATED 14/5/2018 SUBMITTED BY SMT.AMINA TO THE 2ND RESPONDENT.
EXHIBIT P15 TRUE COPY OF THE STATEMENT GIVEN BY SMT.AMINA BEFORE THE 2ND RESPONDENT ON 28/5/2018.
EXHIBIT P16 TRUE COPY OF THE JUDGMENT DATED 28/1/2020 IN W.P.(C) NO.16056/2018 OF THIS HON'BLE COURT.
EXHIBIT P17 TRUE COPY OF THE NOTICE DATED 13/2/2020 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P18 TRUE COPY OF THE NOTICE DATED 18/5/2020 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P19 TRUE COPY OF THE STATEMENT DATED 25/5/2020 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
EXHIBIT P20 TRUE COPY OF THE PLAINT IN OS NO.194/2020 FILED BY THE PETITIONERS AGAINST THE RESPONDENTS.
EXHIBIT P21 TRUE COPY OF THE NOTICE DATED 7/9/2020 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P22 TRUE COPY OF THE MINUTES DATED 27/8/2020 OF THE OF THE 3RD RESPONDENT COUNCIL.
W.P.(C).Nos.20072/20 & 26477/21 13 APPENDIX OF WP(C) 26477/2021 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE CERTIFICATE OF REGISTRATION DATED 16/8/2004 ISSUED BY THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES.
Exhibit P2 TRUE COPY OF THE QUOTATION DATED 10/11/2008 INVITING APPLICATION BY THE 1ST RESPONDENT.
Exhibit P3 TRUE COPY OF THE MINUTES DATED 29/1/2009 OF THE MUNICIPAL COUNCIL MEETING OF THE 1ST RESPONDENT.
Exhibit P4 TRUE COPY OF THE NOTICE DATED 9/3/2009 ISSUED BY THE 2ND RESPONDENT ON THE BASIS OF EXT.P4 DECISION.
Exhibit P5 TRUE COPY OF THE APPROVAL ORDER ALONG WITH COVERING LETTER DATED 26/3/2010 ISSUED BY THE JOINT REGISTRAR CO- OPERATIVE SOCIETIES, ALAPPUZHA. Exhibit P6 TRUE COPY OF THE BOUCHER SHOWING SOME OF THE ITEMS PRODUCED AT THE UNIT. Exhibit P7 TRUE COPY OF THE SANCTION LETTER DATED 11/11/2014 ISSUED BY THE DISTRICT INDUSTRIES CENTRE, ALAPPUZHA.
Exhibit P8 TRUE COPY OF THE LICENSE ISSUED UNDER FSS ACT, 2006 FOR A PERIOD FROM 15/9/2017 TO 14/9/2018.
Exhibit P9 TRUE COPY OF THE LICENSE ISSUED FOR SODA MANUFACTURING THE UNIT DURING THE PERIOD 2017-18.
Exhibit P9A TRUE COPY OF THE LICENSE ISSUED FOR FLOUR MILL UNIT DURING THE PERIOD 2017-18.
Exhibit P10 TRUE COPY OF THE RECEIPT DATED 6/3/2018 ISSUED BY THE 1ST RESPONDENT. Exhibit P11 TRUE COPY OF THE ORDER NO.R4/9215/2018 DATED 2/5/2018 ISSUED BY THE 2ND RESPONDENT AND SERVED ON THE PETITIONER ON 10/5/2018.
Exhibit P12 TRUE COPY OF THE MINUTES OF THE COUNCIL MEETING HELD ON 31/3/2018. W.P.(C).Nos.20072/20 & 26477/21 14 Exhibit P13 TRUE COPY OF THE SO CALLED APPLICATION SUBMITTED BY THE CHAIR PERSON OF ADS SMT.AMINA ON 8/11/2017.
Exhibit P14 TRUE COPY OF THE PETITION DATED 14/5/2018 SUBMITTED BY SMT.AMINA TO THE 2ND RESPONDENT.
Exhibit P15 TRUE COPY OF THE STATEMENT GIVEN BY SMT.AMINA BEFORE THE 2ND RESPONDENT ON 28/5/2018.
Exhibit P16 TRUE COPY OF THE JUDGMENT DATED 28/1/2020 IN WP(C) NO.16056/2018 OF THIS HON'BLE COURT.
Exhibit P17 TRUE COPY OF THE NOTICE DATED 13/3/2020 ISSUED BY THE 2ND RESPONDENT.
Exhibit P18 TRUE COPY OF THE NOTICE DATED 18/5/2020 ISSUED BY THE 2ND RESPONDENT.
Exhibit P19 TRUE COPY OF THE STATEMENT DATED 25/5/2020 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
Exhibit P20 TRUE COPY OF THE PLAINT IN OS NO.194/2020 FILED BY THE PETITIONERS AGAINST THE RESPONDENTS.
Exhibit P21 TRUE COPY OF THE NOTICE DATED 7/9/2020 ISSUED BY THE 2ND RESPONDENT.
Exhibit P22 TRUE COPY OF THE MINUTES DATED 27/8/2020 OF THE 3RD RESPONDENT COUNCIL.
Exhibit P23 TRUE COPY OF THE INTERIM ORDER DATED 28/9/2020 IN WRIT PETITION BEARING NO.20072/2020 OF THIS HON'BLE COURT. Exhibit P24 TRUE COPY OF THE REPRESENTATION DATED 2/8/2021 SENT BY THE PETITIONER TO THE HON'BLE CHIEF MINISTER.
Exhibit P25 TRUE COPY OF THE ACKNOWLEDGMENT CARD DATED 3/8/2021 SHOWING THE RECEIPT OF EXT.P24 AT THE OFFICE OF THE HON'BLE CHIEF MINISTER.
Exhibit P26 TRUE COPY OF THE NOTICE DATED 3/9/2021 ISSUED BY THE DISTRICT INDUSTRIES CENTRE INVITING THE PETITIONER FOR THE ADALATH HELD ON 9/9/2021.
W.P.(C).Nos.20072/20 & 26477/21 15 Exhibit P27 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PRESIDENT OF THE PETITIONER BEFORE THE HON'BLE MINISTER ON 9/9/2021.
Exhibit P28 TRUE COPY OF THE LETTER DATED 14/9/201 SENT BY THE DISTRICT INDUSTRIES OFFICER, ALAPPUZHA TO THE PETITIONER. Exhibit P29 TRUE COPY OF THE STATEMENT GIVEN BY THE PRESIDENT AND SECRETARY OF THE PETITIONER ON 1/9/2021 BEFORE THE 2ND RESPONDENT.
Exhibit P30 TRUE COPY OF THE NOTICE DATED 11/10/2021 ISSUED BY THE 2ND RESPONDENT.