Kerala High Court
Shameer.P.S vs Corporation Of Kochi on 27 May, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
THURSDAY, THE 27TH DAY OF MAY 2021 / 6TH JYAISHTA, 1943
WA NO. 736 OF 2021
AGAINST THE ORDER/JUDGEMENT IN WP(C) 11172/2021 OF HIGH COURT OF
KERALA, ERNAKULAM
APPELLANT:
THE CHAIRMAN
0
THYKKATTU DEVASWOM TRUST, VENNALA P.O., KOCHI,
REPRESENTED BY T.G.N. KUMAR, RESIDING AT 33/3004,
VENNALA P.O., KOCHI-682 028
BY ADV P.S.BIJU
RESPONDENTS:
1 SHAMEER.P.S
AGED 35 YEARS
S/O. SHABA, MADAPPATT HOUSE, EROOR, ERNAKULAM DISTRICT,
PIN-682 306.
2 CORPORATION OF KOCHI
PARK AVENUE ROAD, MARINE DRIVE, KOCHI, KERALA-682 011,
REPRESENTED BY ITS SECRETARY.
3 THE SECRETARY
KOCHI CORPORATION, PARK AVENUE ROAD, MARINE DRIVE,
KOCHI-682 011.
4 THE HEALTH OFFICER
CORPORATION OF KOCHI, PARK AVENUE ROAD, MARINE DRIVE,
KOCHI-682 011.
BY ADVS.
K.MOHANAKANNAN
P.S.BIJU
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
27.05.2021, ALONG WITH WP(C).9984/2020, 9783/2021 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A No.736/2021 and con. cases
- 2 -
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
THURSDAY, THE 27TH DAY OF MAY 2021 / 6TH JYAISHTA, 1943
WP(C) NO. 9984 OF 2020
PETITIONER:
SHAMEER.P.S.,AGED 35 YEARS
0
S/O.SHABA, MADAPPATT HOUSE, EROOR, ERNAKULAM DISTRICT.
BY ADV K.MOHANAKANNAN
RESPONDENTS:
1 CORPORATION OF KOCHI, PARK AVENUE ROAD, MARINE DRIVE,
KOCHI, KERALA-682011, REPRESENTED BY ITS SECRETARY.
2 THE SECRETARY,KOCHI CORPORATION, PARK AVENUE ROAD,
MARINE DRIVE, KOCHI-682011.
3 THE HEALTH OFFICER,CORPORATION OF KOCHI, PARK AVENUE
ROAD, MARINE DRIVE, KOCHI, KERALA-682011.
4 ADDL.R4.THE CHAIRMAN,THYKKATU DEVASWOM TRUST, VENNALA
P.O., KOCHI - 682 028. REPRESENTED BY T.G.N.KUMAR.
ADDITIONAL RESPONDENT IS IMPLEADED AS PER ORDER DATED
11.06.2020 IN I.A.NO.1/2020 IN WP(C).
BY ADVS.
SRI.K.ANAND, SC, COCHIN CORPN.
P.S.BIJU
SMT.N.N.GIRIJA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
27.05.2021, ALONG WITH WA.736/2021 AND CONNECTED CASES, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A No.736/2021 and con. cases
- 3 -
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
THURSDAY, THE 27TH DAY OF MAY 2021 / 6TH JYAISHTA, 1943
WP(C) NO. 9783 OF 2021
PETITIONER:
THE CHAIRMAN, THYKKATTU DEVASWOM TRUST
0
VENNALA P.O., KOCHI - 682 028.
BY ADV P.S.BIJU
RESPONDENTS:
1 THE SECRETARY, CORPORATION OF KOCHI
ERNAKULAM, KOCHI - 682 011.
2 THE HEALTH OFFICER
COOPERATION OF KOCHI, ERNAKULAM, KOCHI - 682 011.
3 THE HEALTH INSPECTOR
CORPORATION OF KOCHI, EDAPPALLY ZONE, KOCHI - 682 011.
4 THE STATION HOUSE OFFICER
PALARIVATTOM POLICE STATION, KOCHI - 682 025.
5 SHAMEER P.S. FAMILY FRUITS, FISH AND CHICKEN, THURUTHEL
ROAD, VENNALA P.O., KOCHI - 682 028.
BY ADV SHRI.K.JANARDHANA SHENOY, SC, KOCHI MUNICIPAL
CORPORATION
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
27.05.2021, ALONG WITH WA.736/2021 AND CONNECTED CASES, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A No.736/2021 and con. cases
- 4 -
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
THURSDAY, THE 27TH DAY OF MAY 2021 / 6TH JYAISHTA, 1943
WP(C) NO. 11172 OF 2021
PETITIONER:
SHAMEER P.S.AGED 35 YEARS
0
S/O. SHABA, MADAPPATT HOUSE, EROOR, ERNAKULAM DISTRICT.
BY ADVS.
K.MOHANAKANNAN
SMT.T.V.NEEMA
RESPONDENTS:
1 CORPORATION OF KOCHI, PARK AVENUE ROAD, MARINE DRIVE,
KOCHI, KERALA-682 011 REPRESENTED BY ITS SECRETARY.
2 THE SECRETARY, KOCHI CORPORATION, PARK AVENUE ROAD,
MARINE DRIVE, KOCHI-682 011.
3 THE HEALTH OFFICER, CORPORATION OF KOCHI, PARK AVENUE
ROAD, MARINE DRIVE, KOCHI, 682 011.
4 THE CHAIRMAN, THYKKATTU DEVASWOM TRUST, VENNALA PO,
KOCHI, REPRESENTED BY T.G.N. KUMAR, RESIDING AT
33/3004, VENNALA P.O., KOCHI-682 028.
BY ADV SRI.P.S.BIJU
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
27.05.2021, ALONG WITH WA.736/2021 AND CONNECTED CASES, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A No.736/2021 and con. cases
- 5 -
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
THURSDAY, THE 27TH DAY OF MAY 2021 / 6TH JYAISHTA, 1943
WP(C) NO. 23106 OF 2020
PETITIONER:
SHAMEER P.S, AGED 35 YEARS
0
S/O. SHABA, MADAPPATT HOUSE, EROOR, ERNAKULAM DISTRICT
BY ADVS.
K.MOHANAKANNAN
SRI.H.PRAVEEN (KOTTARAKARA)
RESPONDENTS:
1 CORPORATION OF KOCHI
PARK AVENUE ROAD, MARINE DRIVE, KOCHI, KERALA-682 011
2 THE SECRETARY,KOCHI CORPORATION, PARK AVENUE ROAD,
MARINE DRIVE, KOCHI-682 011
3 THE HEALTH OFFICER,CORPORATION OF KOCHI, PARK AVENUE
ROAD, MARINE DRIVE, KOCHI-682 011
4 THE CHAIRMAN,THYKKATTU, DEVASWOM TRUST, VENNALA P.O.,
KOCHI REPRESENTED BY T.G.N.KUMAR, RESIDING AT 33/3004,
VENNALA P.O., KOCHI-682 028
BY ADV SRI.P.S.BIJU
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
27.05.2021, ALONG WITH WA.736/2021 AND CONNECTED CASES, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A No.736/2021 and con. cases
- 6 -
K. Vinod Chandran & M.R. Anitha, JJ.
-------------------------------------
Writ Appeal No.736 of 2021, W.P(C) No.23106 of 2020,
W.P(C) No.9984 of 2020,
WP(C)9783 of 2021 and W.P(C) No.11172 of 2021
-------------------------------------
Dated, this the 27th day of May, 2021
JUDGMENT
Vinod Chandran, J.
The writ appeal is against an interim order passed
by the learned Single Judge in a writ petition. The learned
Counsel for the appellant submits that by the interim order,
the petitioner/1st respondent has been permitted to continue
his business in vegetables and fruits despite the Corporation
having revoked his D&O licence. The revocation has come into
effect and the consequential order of stoppage of business as
per Ext.P14 and P15 have been challenged in the writ petition
from which the appeal arise. The learned Counsel for the 1st
respondent submits that the revocation order produced as
Ext.P10, is challenged in W.P(C) No. 23016/2020. We also
notice from the order impugned in the W.P.(C) that there are
a number of writ petitions pending between the parties and
the litigation has a chequered past. We hence called for the
writ petitions also for hearing to have a quietus in the
matter.
W.A No.736/2021 and con. cases
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2. It is seen that the 1st respondent was carrying
on a business in vegetables and a cold storage as per Ext.P2
D&O licence. The appellant who was in management of a temple
was concerned with the desecration of the temple premises
with the waste generated from the business of cold storage
conducted by the 1st respondent. The appellant filed a writ
petition in which Ext.P4 judgment was passed. It was directed
that the competent authority of the Corporation would
consider the objections raised by the appellant and decide
upon the renewal of licence sought for and the complaint
raised of business being carried without a proper D&O licence
would also be looked into. Pursuant to Ext.P4 judgment Ext.P5
was passed directing stoppage of the business conducted by
the 1st respondent.
3. The said order of stoppage was challenged by the 1 st
respondent in W.P(C) No.9984 of 2020 which was heard along
with another writ petition, wherein a similar order was
challenged by yet another trader and Ext.P7 interim order was
passed. The undertaking of the petitioner therein, who is the
1st respondent in this appeal, that he would not conduct any
business other than in fruits and vegetables was recorded. As
a consequence the premises which was closed down and sealed
by the officials was directed to be resumed to the possession
W.A No.736/2021 and con. cases
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of the petitioner so as to enable him to conduct his
business. Noticing the objections raised against the
functioning of the business, it was also directed that the
Devaswom which is the appellant herein, who was not made a
party in the above writ petition, be impleaded. We see from
the records of W.P(C) No.9984/2020 that an impleading
petition was filed by the Devaswom itself immediately after
the interim order was passed. The matter is still pending,
which according to us is infructuous by reason of the
subsequent proceedings.
4. After Ext.P7 interim order, on 19.06.2020 it is
seen that the 1st respondent was issued with Ext.P8 D&O
licence for carrying on the business of vegetables and
fruits. Alleging non-consideration of the objections of the
appellant a contempt case was initiated, by the appellant as
against the non-compliance of the directions in Ext.P4
judgment. The contempt case was disposed off as per Ext.P11.
It was conceded in the contempt proceedings that the
Corporation had unilaterally granted renewal of the trade
licence and an opportunity was sought to remedy and rectify
the same. The learned Single Judge hence closed the contempt
case recording the submission of the Corporation and directed
consideration of the objections as had been stipulated in
W.A No.736/2021 and con. cases
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Ext.P4. The learned Single Judge was also cautious to observe
that there was no adjudication made by this court on the
merits of the controversy.
5. In compliance with Ext.P11 the parties were heard
and Ext.P10 order was passed by the Corporation revoking the
licence granted by Ext.P8. Ext.P10 was challenged in W.P(C)
No.23106/2020. The same was filed on 27.10.2020 and was
posted before Court on various dates. The matter was admitted
on 22.03.2021. However despite a prayer made for an interim
order, no stay of the order of revocation at Ext.P10 was
granted. Inspite of the 1st respondent having not obtained a
stay of the order of revocation, as is seen from the records
he continued with his business; which continuance was sans a
D&O licence. The Corporation authorities alertly took up the
matter and an inspection was conducted based on which a
report was filed by a team of employees of the Health
Department of the Corporation. It was categorically stated in
the report, Ext.P12, that the 1st respondent was carrying on a
vegetable and fruit stall in building No.42/856A (Old
No.33/147 C1). In addition, it was also reported that there
is an unauthorized construction extending to 110 sq.meters in
the premises. Notices were issued and eventually Ext.P15
order was passed. Ext.P15 directed removal of the
W.A No.736/2021 and con. cases
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unauthorised constructions and stoppage of the business.
6. As we observed, while Ext.P15 was challenged in
the present writ petition Ext.P10 was challenged in an
earlier writ petition. Ext.P15 is a consequence of Ext.P10
order. The revocation of the D&O licence as per Ext.P10 was
not stayed in the earlier proceedings. The 1st respondent
ought not to have continued his business even confined to
vegetables and fruits. This is for the simple reason that he
had no D&O licence to carry on the business for reason of the
revocation order having not been stayed. In the subsequent
writ petition challenging the consequential order the learned
Single Judge according to us, inadvertently directed
continuance of the business. We also see that as of now even
if the revocation order was interfered with, the licence at
Ext.P8 does not revive, as it has expired as early as on
31.03.2021.
7. The learned Counsel for the petitioner/1st
respondent fervently argued before us that he had continued
the business only by virtue of Ext.P7 order. We are unable to
countenance the said contention especially since Ext.P8
issuance of licence and Ext.P10 revocation were subsequent to
Ext.P7 order of this Court. We also do not approve of the
said contention as one bona fide made, especially since the
W.A No.736/2021 and con. cases
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1st respondent quite aware of this position had challenged the
revocation in a separate writ petition. In the above context
the learned Counsel for the 1st respondent submitted that he
has now made a fresh application as per Ext.P16 for D&O
licence, which could be directed to be considered. It is also
prayed that till such consideration the 1st respondent may be
allowed to continue the business.
8. We are of the opinion that there could be a
consideration made of Ext.P16, but after hearing the Devaswom
also. However we are not inclined to permit the continuance
of the business especially noticing the fact that despite a
revocation of trade licence and the same having not been
stayed by this Court in a challenge made, the 1st respondent
has been continuing the business. To bring a quietus to the
matter we are of the opinion that the following orders shall
be passed settling the dispute as of now.
9. W.P(C) No.9984 of 2020 filed by the 1st respondent
in the appeal is against the earlier stop memo issued.
W.P.(C) No.9783 of 2021 filed by the appellant herein sought
further proceedings on Ext.P12 report. Both these writ
petitions do not survive and are closed as infructuous. In
W.P.(C) No. 185/2021 we see that the appellant has
contentions with respect to other traders also. In such
W.A No.736/2021 and con. cases
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circumstance the same shall be considered by the Bench having
roster.
10. We issue the following directions, disposing of
WA 736/20 W.P(C) No.11172/2021 and 23106/2020.
Considering the fact that the petitioner is carrying on
the business of perishable items, we permit the continuance
of the business till 1.00 pm on 01.06.2021. We direct the 1st
respondent to then stop the business carried on in the
premises. The Corporation shall inspect the premises and
ensure the stoppage. If the petitioner has complied with our
directions as also removed the unauthorised constructions,
then and only then the Corporation shall take up
consideration of renewal of licence, within two weeks from
that date. The appellant and the 1 st respondent shall be
issued with notice and a hearing shall be conducted within
the said period. An order shall be passed within one week
from the date of hearing. The rival contentions of the
parties are left open to be agitated before the Corporation.
Ordered accordingly.
Sd/-
K. Vinod Chandran,Judge
Sd/-
M.R Anitha, Judge
jma
W.A No.736/2021 and con. cases
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APPENDIX OF WP(C) 9783/2021
ANNEXURE/EXHIBITS
EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN WP(C)
NO.3414/2020 DATED 26/02/2020.
EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN COC NO.1112/2020
IN WP(C) NO.3414/2020 DATED 24/09/2020.
EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS
NO.MOH13/004584/2020 DATED 18/12/2020.
EXHIBIT P4 TRUE COPY OF THE NOTICE
NO.ISO/MOH13/004585/2020 DATED 19/03/2020 OF
THE 1ST RESPONDENT ISSUED TO THE 5TH
RESPONDENT.
W.A No.736/2021 and con. cases
- 14 -
APPENDIX OF WP(C) 11172/2021
ANNEXURE/EXHIBITS
EXHIBIT P1 TRUE COPY OF THE RECEIPT ISSUED BY THE
CORPORATION DATED 9.3.2020.
EXHIBIT P2 TRUE COY OF THE LICENCE ISSUED BY THE
CORPORATION OF KOCHI DATED 09.11.2018.
EXHIBIT P3 TRUE COPY OF THE RECEIPT ISSUED BY THE
RESPONDNET CORPORATION DATED 28.2.2019.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 26.2.2020 IN
WRIT PETITION (C) 3414/2020.
EXHIBIT P5 TRUE COPY OF THE NOTICE BEARING NO. MOH
13/004584/20 DATED 30.4.2020, ISSUED BY THE
CORPORATION OF KOCHI.
EXHIBIT P6 TRUE COPY OF THE GOVERNMENT ORDER GO(RT)
NO.820/2020/LSGD DATED 4.5.2020.
EXHIBIT P7 TRUE COPY OF THE INTERIM ORDER PASSD IN WRIT
PETITION NO.9984/2010 DATED 15.5.2020.
EXHIBIT P8 TRUE COPY OF THE LICENCE ISSUED BY THE
CORPORATION DATED 19.6.2020.
EXHIBIT P9 TRUE COPY OF THE NOTICE ISSUED BY THE 3RD
RESPONDENT DATED 21.10.2020.
EXHIBIT P10 TRUE COPY OF THE ORDER PASSED BY THE 3RD
RESPONDENT, DATED 22.10.2020.
EXHIBIT P11 TRUE COPY OF THE ORDER IN CCC NO.1112/2020 IN
WRIT PETITION NO.3414/2020 DATED 24.9.2020.
EXHIBIT P12 TRUE COPY OF THE PROCEEDINGS DATED 18.12.2020
OF THE CORPORATION WITH INSPECTION REPORT.
EXHIBIT P13 TRUE COPY OF THE COMMUNICATION SENT BY THE
PETITIONER TO THE CORPORATION DATED 6.1.2021.
EXHIBIT P14 TRUE COPY OF THE COMMUNICATION DATED
19.3.2021 ISSUED BY THE CORPORATION.
EXHIBIT P15 TRUE COPY OF THE NOTICE ISSUED BY THE IST
RESPONDENT DATED 21.4.2021.
EXHIBIT P16 TRUE COPY OF THE APPLICATION FOR RENEWAL OF
LICENCE WITH POSTAL RECEIPT DATED 4.5.2021
SENT BY THE PETITIONER.
W.A No.736/2021 and con. cases
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APPENDIX OF WP(C) 23106/2020
ANNEXURE/EXHIBITS
EXHIBIT P1 TRUE COPY OF THE RECEIPT ISSUED BY THE
CORPORATION DATED 9.3.2020
EXHIBIT P2 TRUE COPY OF THE LICENCE ISSUED BY THE
CORPORATION OF KOCHI DATED 15.10.2018
EXHIBIT P3 TRUE COPY OF THE RECEIPT ISSUED BY THE
CORPORATION CORPORATION DATED 28.2.2020
EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 26.2.2020 IN
WRIT PETITION (C) 3414/2020
EXHIBIT P5 TRUE COPY OF THE NOTICE BEARING NO.MOH
13/004584/20 DATED 30.4.2020 ISSUED BY THE
CORPORATION OF KOCHI
EXHIBIT P6 TRUE COPY OF THE GOVERNMENT ORDER GO (RT)
NO.820/2020/LSGD DATED 4.5.2020
EXHIBIT P7 TRUE COPY OF THE INTERIM ORDER PASSED IN WRIT
PETITION NO.9984/2020 DATED 15.5.2020
EXHIBIT P8 TRUE COPY OF THE LICENCE ISSUED BY THE
CORPORATION DATED 19.6.2020
EXHIBIT P9 TRUE COPY OF THE NOTICE ISSUED BY THE 3RD
RESPONDENT DATED 21.10.2020
EXHIBIT P10 TRUE COPY OF THE ORDER PASSED BY THE 3RD
RESPONDENT, DATED 22.10.2020
EXHIBIT P11 TRUE COPY OF THE ORDER IN CC NO.112/2020 IN
WRIT PETITION NO.3414/2020 DATED 24.9.2020
