The Ernakulam District Wholesale ... vs State Of Kerala
2021 Latest Caselaw 520 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

    THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942

                      WP(C).No.29097 OF 2020(J)


PETITIONER:

               THE ERNAKULAM DISTRICT WHOLESALE CO-OPERATIVE
               CONSUMERS' STORE LTD. NO.E-122, KAKKANAD,
               KOCHI - 682 030, REPRESENTED BY ITS MANAGING DIRECTOR
               IN-CHARGE, (PRADEEPKUMAR N.V.).

               BY ADVS.
               SRI.P.B.AJOY
               SMT.PARVATHY P. ROMY
               SMT.SWATHANDRA THIRUNILATH

RESPONDENTS:

      1        STATE OF KERALA,
               REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT,
               LOCAL SELF GOVERNMENT DEPARTMENT,
               GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM - 695 001.

      2        THE DIRECTOR URBAN AFFAIRS,
               PUBLIC OFFICE BUILDINGS,
               THIRUVANANTHAPURAM - 695 033.

      3        CORPORATION OF KOCHI,
               REPRESENTED BY ITS SECRETARY,
               PARK AVENUE ERNAKULAM - 682 011.

               BY ADVS. SRI.K J MANURAJ, GP
                        SRI.S.SUDHEESH KUMAR, SC

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.29097 OF 2020(J)

                                  -2-

                             JUDGMENT

Dated this the 7th day of January 2021

The petitioner, the Ernakulam District

Wholesale Co-operative Consumer's Store Ltd., is in

occupation of the building that belongs to the

Corporation of Kochi. The petitioner was served

with Ext.P2 notice on 03.06.2015. By this notice, the

petitioner was directed to vacate the building which

the petitioner is occupying, within seven days, for

the purpose of constructing a multi level car parking

cum commercial complex. The petitioner challenged

the notice in W.P.(C)No.19362 of 2015. This Court

disposed of the writ petition. The operative portion

of the judgment reads as follows:

9. In that view of the matter, Ext.P5 is treated as a show cause notice, and the petitioner is given a month's time for filing reply and if any such reply is received, it shall be considered by the Secretary of the WP(C).No.29097 OF 2020(J)

Municipal Corporation in accordance with law and attain finality at the earliest possible, and at any rate, within two months thereafter.

10. I also make it clear that, if the petitioner makes any application for renewal of the license, it shall be considered in accordance with law in the interregnum.

2. Thereafter, the petitioner submitted a reply

and the petitioner was heard. The Corporation

issued Ext.P7 notice, dated 26.07.2019, demanding

huge rent arrears of Rs.18,29,644/-. It appears that

the Corporation has given up the proceedings

initiated pursuant to original notice. The demand is

now raised for the rent at a revised rate based on the

plinth area from 01.04.2017. The petitioner moved

the Municipal Council in appeal along with the stay

application. In the meanwhile, the petitioner

received Ext.P10 notice on 30.11.2020, directing the

petitioner to vacate the building for non-payment of

rent arrears based on the revised rate. Challenging WP(C).No.29097 OF 2020(J)

this, the petitioner approached this Court.

3. It is submitted by the learned counsel for

the petitioner that this Court only directed the

Corporation to consider the challenge regarding

eviction and the Corporation, instead of considering

the same, passed an order demanding arrears of rent

on a revised rate. Therefore, the order is legally

unsustainable. Apart from that, the learned counsel

for the petitioner further submits that they had

pursued their remedy in an appeal for challenging

the revised arrears of rent. Therefore, no action can

be initiated.

4. The cause of action originally enured to the

petitioner challenging the eviction notice is now

appears to be different from the cause of action now

enured to the petitioner. The petitioner is now WP(C).No.29097 OF 2020(J)

attempting to mix up both cause of actions and

attempting to challenge the present eviction notice.

Present eviction notice is based on the cause of

action relates to the revised rate of arrears of rent.

The petitioner moved the Municipal Council

challenging the revised rate of arrears of rent. This

Court originally granted the interim order directing

the petitioner to pay Rs.3,00,000/- within two weeks

from the date of the order.

5. Since the present action challenged is

regarding the eviction that is based on the demand

of arrears of rent on revised rate, it is kept in

abeyance till conclusion of the appeal before the

Corporation. However, the court cannot ignore the

demand of Rs.18,29,644/- towards arrears of rent.

The petitioner cannot seek a blanket order as against WP(C).No.29097 OF 2020(J)

the eviction without payment of at least a portion of

the amount. I am of the view that the Municipal

Council shall dispose of the appeal within a period of

three months, after notice to the petitioner.

However, further proceedings shall be kept in

abeyance on condition that the petitioner shall pay

Rs.3,00,000/-(Rupees three lakhs only) as ordered by

this Court on 04.01.2021. This amount shall be paid

within two weeks from the date of receipt of a copy

of this judgment.

The writ petition is disposed of as above.

Sd/-

A.MUHAMED MUSTAQUE JUDGE akv WP(C).No.29097 OF 2020(J)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE RECEIPT ISSUED BY THE 3RD RESPONDENT FOR THE RENT PAID FOR THE MONTH OF NOVEMBER 2020.

EXHIBIT P2 TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT BEARING NO.MOR3/5390/15 AND DATED 03.06.2015.

EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 25.02.2019 OF THE HONORABLE HIGH COURT OF KERALA IN W.P.(C) NO.19362/2015.

EXHIBIT P4 TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER.

EXHIBIT P5 TRUE COPY OF THE NOTICE DATED 15.06.2019 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE STATEMENT OF THE MANAGING DIRECTOR OF THE PETITIONER.

EXHIBIT P7 TRUE COPY OF THE ORDER DATED 26.07.2019 ISSUED BY THE DEPUTY SECRETARY OF THE 3RD RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE APPEAL FILED THE PETITIONER ALONG WITH THE ACKNOWLEDGEMENT RECEIPT.

EXHIBIT P9 TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER ALONG WITH ACKNOWLEDGEMENT RECEIPT.

EXHIBIT P10 TRUE COPY OF THE ORDER BEARING NO.MOR/3044/90 DATED 30.11.2020 ISSUED BY THE REVENUE OFFICER OF THE 3RD RESPONDENT.

RESPONDENT'S/S EXHIBITS:NIL.

//TRUE COPY//

PA TO JUDGE