Muhammed Najeeb A vs Municipal Corporation Of ...
2021 Latest Caselaw 22850 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
            THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                   &
               THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
    TUESDAY, THE 23RD DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA, 1943
                          WA NO. 1734 OF 2020
   AGAINST THE JUDGMENT IN WP(C) 1732/2017 OF HIGH COURT OF KERALA
APPELLANT/PRTITIONER:

            MUHAMMED NAJEEB A.
            AGED 29 YEARS
            S/O.ABDUL MUTALIF,AGED 29 YEARS,REBOOT CAR
            CREATORS,TC.15/2325-1,2, GOLF LINKS ROAD,KOWDIAR,
            THIRUVANANTHAPURAM-695 003.
            BY ADVS.
            P.B.SAHASRANAMAN
            SRI.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
            BUILDINGS,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 ADVS.
            SRI.N.NANDAKUMARA MENON (SR.)FOR R1 & R2
            S.MANU FOR R3

     THIS   WRIT   APPEAL   HAVING     COME   UP   FOR    ADMISSION   ON
23.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.No.1734 of 2020                          2




                                       JUDGMENT

Dated this the 23rd day of November, 2021

SHAJI P.CHALY,J.

Above appeal is preferred by the petitioner in W.P.(C) No.1732/2017,

challenging the judgment dated 2nd November, 2020 and the order in Review Petition

No.904/2020 in the said writ petition, whereby the following reliefs sought for in the

writ petition were declined:

(i) To issue a writ of certiorari calling for the records leading to Exhibit P7 and quash the same.

(ii) To issue a writ, direction or order in the nature of mandamus or such other appropriate writ, direction or order commanding the respondent to issue necessary license which was sought for by Exhibit P2 forthwith.

(iii) Such other reliefs which this Hon'ble Court deems fit and necessary in the circumstances of the case and the costs of this case.

2. The subject issue relates to declining licence to the appellant by the

Thiruvananthapuram Municipal Corporation to run a workshop, on the ground that

the area in which the workshop conducted is situated in a residential zone, and has

also been included in a heritage scheme under the Town Planning Scheme in force.

Brief material facts for the disposal of the writ appeal are as follows;

3. Appellant has taken on lease two buildings bearing Nos.T.C.5/2325/1 & 2,

within the limits of the Thiruvananthapuram Corporation for conducting a motor

workshop in 2013 from the 3rd respondent. Appellant secured consent from the

Kerala State Pollution Control Board, and it appears that the State Government has

recognized the workshop for repairing Government vehicles. Appellant has

submitted an application seeking trade licence under section 447 of the Kerala

Municipality Act, 1994, hereinafter called, "Act, 1994", but no orders were passed by

the Secretary, rejecting the application in terms of section 447(3) of the Act, 1994.

4. It is also the case of the appellant that no order rejecting the application was

communicated to the appellant and therefore, a deemed licence is accrued in terms of

section 447(6) of Act, 1994. The case projected by the appellant is that the said

licence was renewed from time to time and the last application for renewal was made

on 12.10.2020.

5. While so, the Health Inspector of the Corporation issued Exhibit P5 notice to

the appellant stating that the workshop is conducted in a heritage zone and it is not

having the licence. Appellant filed an appeal challenging Exhibit P5 before the

Municipal Council. It is the case of the appellant that by virtue of the powers

conferred on the Mayor of the corporation as per Act1994, a stay of Exhibit P5 order

was granted and the said stay was subsequently ratified by the Council. But the

Health Officer mistakenly felt it as an order rejecting the appeal, and issued Exhibit

P7 notice, which was under challenge in the writ petition. According to the appellant,

the attitude of the Secretary of the Corporation that no licence can be granted in a

heritage zone to conduct any commercial activity is overlooking the statutory

provisions and the said finding is without any basis. It is further submitted that the

term heritage zone is analogous to law.

6. Contentions are also advanced by the appellant relying upon section 45 (1)

(h) of the Kerala Town and Country Planning Act, 2016. It is also submitted that the

Government of India has amended the Ancient Monuments and Archaeological Sites

Remains Act, 1958 in the year 2010, to include provisions for regulation, by Heritage

Bye-laws for prohibited and regulated areas for each centrally protected

monument/site. That apart it is contended that the provisions of the Town and

Country Planning Act in force cannot overlook the provisions of Kerala Municipality

Act, 1994. It is also the contention of the appellant that the restrictions, if any, are

imposed only under heritage site and not on zone and therefore, the finding of the

Secretary that the business of the appellant is located in the heritage zone is

incorrect and therefore, violative of Article 300A of the Constitution of India.

7. The learned Single Judge, after taking into account the contentions advanced

by the appellant and hearing the counsel for the Municipal Corporation and the

owner of the building viz., the 3rd respondent, has rejected the contentions by

holding that the writ petition was filed in the year 2017 and the appellant is not

having any licence as of now to conduct the workshop and further that Exhibit P7

proceedings, in fact, only approved the temporary stay granted by the Mayor and a

final decision has been taken by the Council by directing the Health Inspector to take

further steps to close down the workshop. It was also held that since the area where

the business is located is included in a heritage zone, no commercial activity is

permissible overlooking the statutory provisions and therefore, the appellant cannot

be granted licence.

8 It is quite clear from the Judgement that, when the writ petition was

dismissed, learned counsel appearing for the appellant sought time to vacate the

premises and accordingly, time was granted up to 21.12.2020 to close down the

workshop. Even though a Review Petition was filed to review the judgment, that was

also dismissed as per an order dated 25.11.2020. It was thus challenging the legality

and correctness of the judgment of the learned Single Judge, this appeal is

preferred. To complete the facts ,it is pointed out that though the interim order

passed by this court granting time to remove the vehicles from the premises in

question sealed by the Corporation and grating extension of time for removal of the

vehicles in I.A 3/ 2021, Special Leave to Appeal was preferred before the honourable

Supreme Court, it was dismissed on 19.08. 2021, however with a request to dispose

of the appeal as early as possible.

9. We have heard learned counsel for the appellant Sri.P.B.Sahasranaman,

learned Senior Counsel appearing for Municipal Corporation Sri. N.Nanadakumara

Menon, assisted by Adv.Manoj Kumar, Sri.S.Manu for the 3rd respondent - building

owner, and perused the pleadings and materials on record.

10. It is an admitted fact that Exhibit P7 is pertaining to an appeal proceeding

initiated by the appellant in respect of Exhibit P5 order passed by the Health Officer

of the Municipal Corporation dated 27.10.2015 directing the appellant to close down

the workshop since it is conducted without any licence; that no commercial activity is

possible in the area since it is included in the heritage zone as per the Town

Planning Scheme in force; and is in a residential area.

11. Therefore, it can be seen that the issue raised by the appellant was in

respect of the action taken by the Health Officer of the Municipal Corporation for

conducting the workshop during the year 2015 and therefore, the appeal preferred

before the Municipal Council relating to the said year, can never be sustained under

law, at this distance of time especially due to the fact that the license had to be

issued on an year to year basis. It is also clear from the proceedings that Exhibit P7

is only an order passed pertaining to the interim order passed by the Mayor of the

Corporation. It is also clear from the judgment of the learned Single Judge that the

appeal itself was later dismissed and it is accordingly that action was initiated by the

Municipal Secretary to close down the workshop conducted by the appellant.

12. Anyhow, it is an admitted fact that subsequently appellant submitted an

application before the Municipality seeking licence, which was rejected and against

which, appellant has preferred an appeal before the Tribunal as Appeal No.538/2020

and secured a stay in I.A.No.1103/2020. Later, the 3rd respondent herein filed

I.A.No.847/2021 in Appeal No.538/2020 before the Tribunal, challenging the

maintainability of the appeal and after considering the rival submissions made, the

appeal itself was dismissed by the Tribunal holding that when the licence application

was rejected by the Secretary of the Municipal Corporation, the remedy available to

the appellant was to approach the Municipal Council, in terms of section 509 of the

Kerala Municipality Act, 1994. We also had the advantage of perusing the afore

proceedings and orders since they are produced by the 3rd respondent along with a

memo dated 09.11.2021.

13. Therefore, it can be seen that the subject issue raised in the writ petition

and this appeal in regard to the entitlement of the appellant for securing licence

during the year 2015, is no longer surviving to be adjudicated in this appeal.

Moreover, it is categoric and clear that the reason for rejection made by the

Secretary of the Corporation is that since the building in question is situated in a

heritage zone/area, no licence can be granted for conducting any commercial

activity. Against such a finding made by the Secretary of the Corporation, there is no

averment made in the writ petition that it is not situated in a heritage zone or

heritage area. The contention advanced by the Municipal Corporation was that the

building is situated in a heritage area as per the Scheme in force and therefore, no

commercial activity is permissible and further that it is a residential area as per the

Scheme. Even though learned counsel for the appellant has advanced a contention

that in Exhibit P6 appeal preferred by the appellant before the Municipal Council in

the year 2015, it is stated that the finding of the Secretary that the workshop is

situated in the heritage zone is totally illegal, unjust and unfair, for more reasons

than one, the said statement cannot be accepted. Firstly, that statement before

some other authority is not proved in accordance with law and therefore it has no

probative value as a conclusive proof to be accepted in a writ or appeal proceeding,

and secondly, there is no pleading at all in the writ petition or in the appeal that the

building in question is not included in a heritage zone/area as per the Town Planning

Scheme in force.

14. The discussion made above would make it clear that the judgment of the

learned Single Judge is perfectly in order and there are no established circumstances

made out by the appellant so as to interfere with the judgment of the learned Single

Judge in an intra court appeal, there being no jurisdictional error or other legal

infirmities justifying us to do so.

Upshot of the above discussion is that, the writ appeal fails, accordingly it is

dismissed.

Sd/-

S.MANIKUMAR CHIEF JUSTICE

Sd/-

                                                    SHAJI P.CHALY
smv                                                    JUDGE