Kerala High Court
Muhammed Najeeb A vs Municipal Corporation Of ... on 8 July, 2021
WA No.1734/2020 1/8
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
Thursday, the 8th day of July 2021 / 17th Ashadha, 1943
WA NO. 1734 OF 2020
Against judgment dated 02.11.2020 in WP(C) 1732/2017 of this court.
APPELLANT/PETITIONER:
MUHAMMED NAJEEB A.,S/O.ABDUL MUTALIF,AGED 29 YEARS,REBOOT CAR
CREATORS,TC.15/2325-1,2, GOLF LINKS ROAD,KOWDIAR,
THIRUVANANTHAPURAM-695 003.
BY ADV.P.B SAHASRANAMAN & T.S.HARIKUMAR.
RESPONDENT/RESPONDENT:
1. MUNICIPAL CORPORATION OF THIRUVANANTHAPURAM, VIKAS BHAVAN P.O.,
THIRUVANANTHAPURAM-695 003. REPRESENTED BY ITS SECRETARY.
2. MUNICIPAL COUNCIL, CORPORATION OF THIRUVANANTHAPURAM,CORPORATION
BUILDING,PALAYAM,THIRUVANANTHAPURAM-695 033.
3. DR.MOHAMMED IPHTHIKAR, AGED 55 YEARS,S/O.B.OOMMER RAWTHER,RESIDING
AT 3E,NIKUNJAM,RHAPSODY,KAMMATTAM LANE,RISHIMANGALAM,VANCHIYOOR,
P.O. THIRUVANANTHAPURAM-695 035.
BY.ADV.N. NANADAKUMARA MENON (SR.) & P.K. MANAOJ KUMAR FOR R-1 AND R-2
Prayer for interim relief in the Writ Appeal stating that in the
circumstances in the appeal memorandum the High Court be pleasd to stay
the operation of the judgement in W.P(C).No.1737 of 2017,dated 2nd
November 2020, till the disposal of the above Writ Appeal.
This Writ Appel coming on for orders on 08.07.2021 upon perusing the
appeal memorandum , the court passed the following:
P.T.O
WA No.1734/2020 2/8
ANNEXURE A-1.True photostat copy of the internet
payment receipt of property tax of the building
5/2325/1 ,dated 25.06.2021.
Annexxure A-2
True photostat copy of the internet payment receipt
of property tax of the building 5/2325/2, dated
25.06.2021.
Exhibit p-5 True photostat copy of the notice dated
27.10.2016 issued by the health officer grade -1
WA No.1734/2020 3/8
S. MANIKUMAR, CJ
&
SHAJI P. CHALY, J
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W.A. No. 1734 of 2020
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Dated this the 8th day of July, 2021
ORDER
S. Manikumar, CJ.
Material on record discloses that a tenant of building bearing
No.T.C.5/2325/1 and 2, is running a workshop and being aggrieved by
Exhibit P5 proceedings of the Health Officer, to close down the workshop,
approached this Court to quash the same. Contentions have been made
that work shop has been constructed in a residential zone, which included
in heritage scheme and residential zone under the Town Planning
Scheme. After adverting to the rival contentions, writ court by judgment
dated 2.11.2020 in W.P(C). No.1732 of 2017, dismissed the writ petition.
2. Perusal of the said judgment shows that the learned counsel for
the writ petitioner has sought some time. Taking note of the
inconvenience, writ court has granted time up to 31.12.2020, to close
down the workshop.
3. Dissatisfied with the above said judgment, writ petitioner has
filed R.P. No.904 of 2020 to review the above said judgment. Again,
adverting to the submissions therein, writ court, while declining to
entertain the review petition No.904 of 2020, ordered thus:
WA No.1734/2020 4/8
W.A.1734/2020
"4. It is to be noted that the petitioner's application dated
25.11.2013 for trade licence for the period 2013-14 was
rejected. The petitioner has no case that the petitioner is
conducting the business with a valid licence. The petitioner
was also intimated about the rejection on 18.12.2013. The
impugned proceedings, in fact, relate to the closure of the
business on the ground that the area is included in a
heritage scheme and residential zone. There is no reason
for interfering with this order. As of now, the petitioner does
not have any licence to continue any business.
5. The petitioner, in fact, approached this Court not to
take any action pending appeal filed before the Municipal
Council and seeking a direction to issue licence. Anyway, I
do not find any reason to interfere with this matter, in as
much as, the petitioner does not have any licence now to
conduct any business. If any application for licence is
rejected he can very well challenge the same in accordance
with law. The Review petition is dismissed in limine."
4. Being aggrieved by the impugned judgment in Writ Petition
No.1732 of 2017 and R.P. No.904 of 2020, instant writ appeal No.1734
of 2020 is filed. Appellant has filed I.A. No.1 of 2020 with a prayer to
direct respondent No.1 Corporation to unlock the workshop of the
petitioner in building No. T.C.5/2325/2 and also permit the appellant to
run the workshop pending disposal of the writ appeal. Appellant has
also filed I.A. No.2 of 2021 to permit receipt of certain documents as
WA No.1734/2020 5/8
W.A.1734/2020
Annexure A1 and A2 respectively. Averments made in support of the
prayer for unlocking the workshop and to permit him to run the same are
as hereunder:
"5. The petitioner also submitted an application for the
issuance/renewal of the licence for the year 2019-2020
(Annexure A7). The same was not rejected by the 1 st
respondent. Therefore, it has to be presumed that the
petitioner was having valid license for conducting the
workshop.
6. Now on 26.6.2021, the 1 st respondent with the help of the
local police come to the workshop and locked the gate
preventing the entry to the workshop. It is respectfully
submitted that at this time the workshop was having 25
(twenty-five) vehicles which belongs to many persons in and
around the area. The details of the said vehicles are as
follows:
1. KL-01-BG-1182 (VW VENTO CAR)
2. KL-01-BB-1403 (FORD FIGO CAR)
3. KL-13-N-4000 (SKODA OCTAVIA CAR)
4. KL-024-R-6047 (HONDA CITY)
5. KL-02-AB-3132 (FORD FIESTA CAR)
6. KL-01AS 3999 (HONDA CITY CAR)
7. KL-01-BX-4554 (CRUZE CAR)
8. KL-01-U-0007 (LANCER CAR)
9. KL-01-R-7557 (BALENO CAR)
10. KL-01-BB-2018 (ACCORD CAR)
11. TN-51-Q-1458 (AMBASSADOR)
12. KL-02-AC-6227 (AMBASSADOR)
13. KL-01-AA-5304 (HONDA CITY CAR)
14. KL -01-BF-4003 (CHEVEROLET CAR)
15. KL -22-A-3332 (CHEVEROLET CAR)
16. KL -01-AU-3355 (TATA CAR)
17. KL -01-CM-0685 (BALENO CAR)
18. KL -01-BL-6395 (NISSAN CAR)
WA No.1734/2020 6/8
W.A.1734/2020
19. KEV 6778 (MARUTI CAR)
20. KL -47-9484 (CONTESSA CAR)
21. JEEP
7. There are 8 (eight) persons working in the
workshop. They have to be paid their wages in addition to
food and shelter provided. The landlord has to be paid rent.
Now due to closure of the same, this petitioner and others
who are eking out their livelihood, has been put to
irreparable loss and injury. In this pandemic situation all of
them have been put to difficulties in view of the locking of
the workshop.
8. The landlord of the petitioner has remitted the
entire arrears of property tax of both the buildings on
25.06.2021. A true copy of the internet payment receipt of
Property Tax of the building 5/2325/1, dated 25.6.2021 is
produced herewith and marked as Annexure A1. A true
copy of the internet payment receipt of Property Tax of the
building 5/2325/2, dated 25.6.2021 is produced herewith
and marked as Annexure A2."
5. Mr.P.B. Sahasranaman, learned counsel for the appellant
made submissions on the memorandum of grounds and the averments
extracted supra, for interim orders.
6. Per contra, by inviting attention of this Court to paragraph 8 of
the judgment in W.P(C). No.1732 of 2017 dated 2.11.2020, Mr. S.
Manu, learned counsel for the 3rd respondent herein/owner, at whose
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W.A.1734/2020
instance, Exhibit P5 has been passed, submitted that after hearing the
learned counsel for the parties, when the writ court declined to grant
prayers sought for, learned counsel for the writ petitioner/tenant sought
time for closing the workshop and hence writ court by exercising
discretion granted time upto 31.12.2020 to close down the workshop.
7. According to learned counsel for the 3 rd respondent, if there
was any inadvertence on the part of the writ petitioner by seeking time
and if the court had passed any order without considering the above
said fact, or undertaking given for closing down the workshop, specific
averments ought to have been made in the review petition, as regards
any mistake, committed by the court on the aspect of closure/extension
of time and in the case on hand, no such specific averments were made
in the review petition. Thus, at this stage, it is not open to the appellant
to contend that there is a mistake in seeking for extension of time before
the writ court.
8. Mr. N. Nandakumara Menon, learned Senior Counsel
appearing for the Municipal Corporation submitted that licence had
expired in 2013 itself. It is not extended further.
9. However, having regard to the contentions that many vehicles
are kept in the workshop and consequent to the closure of the same,
hardship would caused to the owners of the said vehicles, at this
WA No.1734/2020 8/8
W.A.1734/2020
juncture, we are not inclined to allow the petitioner to run the workshop
during the pendency of the writ appeal, but direct the
Thiruvananthapuram Corporation/1st respondent to unlock the workshop
at building No. T.C.5/2325/2, so as to facilitate removal of the vehicles
kept in the workshop. We make it clear that unlocking of the workshop
is only to facilitate removal of the vehicles and not for carrying on any
activities of the workshop and that not be violation.
10. Respondent shall cause notice of removal of locking to both
the tenant as well as the owner. Vehicles be removed within ten days
from the date of unlocking. Thereafter, Municipal Corporation
Thiruvananthapuram/1st respondent shall lock the premises till disposal
of the writ appeal.
Sd/-
S. Manikumar,
Chief Justice
Sd/-
Shaji P. Chaly,
Judge
sou.
08-07-2021 /True Copy/ Assistant Registrar
