Kerala High Court
K.M.Gafoor vs State Of Kerala on 15 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 15TH DAY OF JULY 2021 / 24TH ASHADHA, 1943
WP(C) NO. 32811 OF 2011
PETITIONER:
K.M.GAFOOR
S/O.MOHAMMED, RESIDING AT 2/704, KUNNUMMEL HOUSE,
FORTKOCHI P.O., KOCHI-1, NOW RESIDING AT 4/552 G,
MATTANCHERY, KOCHI-2.
BY ADVS.
SRI.A.X.VARGHESE
SRI.A.V.JOJO
RESPONDENTS:
1 STATE OF KERALA, REP.BY SECRETARY,
LOCAL ADMINISTRATION, SECRETARIAT, THIRUVANANTHAPURAM-
695001.
2 CORPORATION OF KOCHI, REP.BY SECRETARY
KOCHI-682016.
3 THE ASSISTANT EXECUTIVE ENGINEER
KOCHI CORPORATION, FORT KOCHI-682001.
R1 - SRI.SURIN GEORGE IPE,SENIOR GOVERNMENT PLEADER
R2 AND R3 - SRI.K.JANARDHANA SHENOY,STANDING COUNSEL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 15.07.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.32811/2011 2
JUDGMENT
This writ petition is filed by the petitioner seeking the following reliefs:
i) Call for the records pertaining to Exhibit P-7 and quash the same by
Issuing a Writ of Certiorari;
ii) Issue a Writ of Mandamus or any appropriate writ, order or direction,
directing the respondents not to demolish or remove the bunk shop of the
petitioner, situated on the south eastern corner of the Nehru Park at
Fortkochi.
Iii) Issue a Writ of Mandamus or any appropriate writ, order or direction,
directing the respondents not to interfere with the business of ice cream
and cool bar conducted by the petitioner on south eastern corner of the
Nehru Park at Fortkochi.
iv) Issue such other reliefs that this Hon'ble Court deems fit and proper in
the facts and circumstances of the case.
2. The contention put forth by the petitioner is that petitioner is conducting
a cool Bar at the south-eastern corner of Nehru Park, Fort Kochi beach area.
According to the petitioner, the bunk shop was purchased by the petitioner from
a third person in the year 1994. In the year 2001, certain officers from the Kochi
Corporation went to the shop and informed that the bunk shop will be demolished
and removed immediately. At that point of time, petitioner has filed
O.P.No.4592/2001 before this Court, which was disposed of as per Exhibit P6
judgment, recording the submission of the Kochi Corporation that possession of
the petitioner will not be disturbed without taking recourse to due process of law.
It is the case of the petitioner that 3 rd respondent i.e., the Assistant Executive
Engineer, Kochi Corporation, Fort Kochi, has issued Exhibit P7 notice dated
6.12.2011 directing the petitioner to remove the bunk shop on or before
7.12.2011, failing which it was threatened to be demolished by the Corporation on
8.12.2011.
3. When the writ petition was admitted to the files of this Court, an interim
order was granted by this Court staying the operation of Exhibit P7 for a period of
two weeks, which was being extended periodically and finally it was extended
until further orders on 12.6.2012, which continues to be in force now.
4. It is well established that consequent to the introduction of Street
Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014,
(hereinafter called, "the Act"), the persons who are conducting bunk shops are
entitled to get protection and they cannot be removed unless and until they are
rehabilitated in accordance with the provisions of the Act, 2014. The provisions of
Act show that the Kochi Corporation is liable to prepare a list of eligible persons to
continue with the bunk shop or to be rehabilitated.
5. Learned counsel for Kochi Corporation Sri.Janardhana Shenoy also
submitted that if the petitioner is included in the list, he is eligible to be
rehabilitated and therefore, appropriate orders may be passed by this Court,
leaving open the liberty of the Corporation to consider the matter taking into
account the list prepared by the Corporation as per the provisions of the Act,
2014.
6. After having heard learned counsel for petitioner Sri.Jojo A.V., learned
Senior Government Pleader Sri.Surin Geoge Ipe, and learned Standing Counsel for
Kochi Corporation Sri.K.Janardhana Shenoy, and perusing the pleadings and
materials on record, this writ petition is allowed in the background of the
provisions of the Act, 2014. But at the same time the liberty of the Kochi
Corporation is left open to consider the case of the petitioner taking into account
the provisions of the Act, 2014, and the list prepared by the Kochi Corporation in
order to rehabilitate the bunk shops owners in terms of the provisions of the Act,
2014. Accordingly, the interim order passed by this Court as is specified above is
made absolute till such time a decision is taken as directed above. Petitioner will
be guided by the decision taken by the Kochi Corporation as directed above.
Sd/-
SHAJI P.CHALY
smv JUDGE
APPENDIX OF WP(C) 32811/2011
PETITIONER'S ANNEXURES
P1: A TRUE COPY OF THE PURCHASE DEED EXECUTED
BETWEEN THE PETITIONER AND ONE SAINABA,
W/O.M.ABU
P2: A TRUE COPY OFPLAN SUBMITTED BY THE
PETITIONER
P3: A TRUE COPY OF THELETTER DATED 4.12.1987
ISSUED BY HE CORPORATION OF KOCHI
P4: A TRUE COPY OF THE PAYMENT RECEIPT DATED
12.11.1997 ISSUED BY THE CORPORATION
P5: PHOTOGRAPHS SHOWS THE NATURE AND LIE OF
THE BUNK OF THE PETITIONER.
P6: TRUE COPY OF THE JUDGMENT DATED 28.7.2008
IN O.P 4592/2001 OF THE HON'BLE HIGH COURT.
P7: TRUE COPY OF THE NOTICE DATED 6.12.2011.
