Jameela Usman vs Kunnamkulam Municipality
2021 Latest Caselaw 18680 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                        PRESENT
          THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 9TH DAY OF SEPTEMBER 2021/18TH BHADRA, 1943
                 WP(C) NO. 2639 OF 2021
PETITIONER:

         JAMEELA USMAN,
         AGED 50 YEARS,
         W/O. USMAN FOODIES EAT HUB,
         CAFTERIA HOTEL, KUNNAMKULAM,
         RESIDING AT THEKKINKTTIL HOUSE,
         AKKIKKAVU P.O.,
         THALAPPILLY, PIN - 680 519.
         BY ADVS.
         SRI.JOY GEORGE
         SMT.PRAICY JOSEPH
         SRI.RAJU JOSEPH
         SRI.VINO JOSE
         SMT.TANYA JOY


RESPONDENTS:

    1    KUNNAMKULAM MUNICIPALITY,
         REPRESENTED BY THE SECRETARY,
         KUNAMKULAM MUNICIPALITY,
         KUNNAMKULAM, PIN - 680 503.
    2    THE HEALTH INSPECTOR,
         KUNNAMKULAM MUNICIPALITY,
         KUNNAMKULAM, PIN - 680 503.
         BY ADVS.
         R1-2 BY SRI.I.V.PRAMOD
         R1-2 BY SRI.V.N.HARIDAS
         R1-2 BY SRI.SAIFUDEEN T.S


     THIS WRIT PETITION (CIVIL) HAVING COME UP        FOR
ADMISSION ON 09.09.2021, THE COURT ON THE SAME        DAY
DELIVERED THE FOLLOWING:
 WP(C) No.2639/2021
                                :2 :




                          JUDGMENT

Dated this the 9th day of September, 2021

The petitioner is before this Court seeking to direct

the respondents 1 and 2 not to implement Exts.P5 and P8

notices. .

2. The petitioner would submit that she has been

issued with Ext.P3 licence to run a cool bar, tea shop,

restaurant, catering, canteen, café and hotel business.

Ext.P3 has been issued under Section 447 of the Kerala

Municipality Act, 1994. The Food Safety and Standard

Authority of India has also issued Ext.P4 licence to the

petitioner under the Food Safety and Security Act, 2006.

3. It is the case of the petitioner that due to the rivalry

of a neighboring hotelier certain fictitious complaints were

filed before the Municipality alleging violation of Rules by the

petitioner and the Municipality issued Ext.P5 Stop Memo WP(C) No.2639/2021

dated 08.01.2021. On receipt of Ext.P1 Stop Memo, the

petitioner submitted Ext.P2 reply on 18.01.2021. However,

without adhering to the contentions raised in Ext.P7, the

Secretary to the Municipality issued Ext.P8 Stop Memo.

4. The counsel for the petitioner urged that the

petitioner has not violated any rules or the conditions of

licence. A complaint happened to be filed against the

petitioner at the instance of a rival hotelier. The counsel for

the petitioner could even submit that the names appearing in

the complaints are also fictitious. In such circumstances,

Ext.P8 notice is liable to be set aside for non-application of

mind and for denial of principles of natural justice .

5. The learned Standing Counsel for the Municipality

appeared in the writ petition. A statement was filed. The

Standing Counsel strongly opposed the prayers made in the

writ petition. The Standing Counsel submitted that 12

persons have submitted a joint petition to the Municipality

alleging that the petitioner is preparing and distributing food WP(C) No.2639/2021

outside the cafeteria violating the licence conditions. An

inspection was conducted in the cafeteria and it was found

that food items are being cooked and served outside the

shop, violating licence conditions. Hence, Ext.P5 notice was

issued to the petitioner directing the petitioner to stop the

functioning of the cafeteria. As Ext.P6 reply submitted by the

petitioner was not satisfactory, Ext.P7 was issued.

6. The learned Standing Counsel pointed out that the

nuisance due to the cooking of food items including non-

vegetarian food in the open space in the shop is unbearable

to the public and the annoyance caused by stray dogs and

cows due to dumping of food waste and the uncleaned

vessel, is intolerable. Moreover gas cylinder is used in the

open space, it was under the said circumstances, Ext.P8 Stop

Memo was issued.

7. I have heard the learned counsel for the petitioner

and the learned Standing Counsel for the respondents 1 and

2. WP(C) No.2639/2021

8. A perusal of Ext.P5 notice and Ext.P8 Stop Memo

would show that the 1st respondent has not considered the

issue in its proper perspective. Ext.P5 notice was issued to

the petitioner alleging that non-vegetarian food is being

cooked in violation of the Rules. The petitioner submitted

Ext.P7 reply. The submission of Ext.P7 reply is admitted by

the respondents. However, the final order passed directing

the petitioner to stop the functioning of her business would

show that the reply was not at all adverted to by the

respondents, while deciding the issue. Further more the

petitioner applied for a copy of the complaints received as per

Ext.P6 in order to put forth her defence. According to the

petitioner, a copy of the complaint was not given to the

petitioner.

9. When the petitioner had sought for a copy of the

complaint on the basis of which the proceedings were

initiated, had the petitioner was served with a copy, the

petitioner could have convinced the respondents that the WP(C) No.2639/2021

names mentioned there are fictitious. That was not done.

Further more Ext.P7 reply submitted by the petitioner was not

adverted to at all in Ext.P8. In such circumstances, this Court

is of the considered opinion that the impugned Ext.P8 Stop

Memo cannot stand the scrutiny of law.

In the circumstances, the writ petition is disposed

of setting aside Ext.P8 Stop Memo. It is made clear that the

respondents will be at liberty to make fresh inspection of the

premise of the petitioner to ascertain whether the alleged

violations still do exist. However, a final order in this regard, if

warranted, should be passed only after giving an opportunity

of personal hearing to the petitioner.

Sd/-

N. NAGARESH JUDGE SR WP(C) No.2639/2021

APPENDIX OF WP(C) 2639/2021

PETITIONER'S EXHIBITS:

EXHIBIT P1 THE PHOTOCOPY OF THE LICENSE AGREEMENT DATED 24.06.2020.

EXHIBIT P2 THE PHOTOCOPY OF THE CONSENT LETTER ISSUED BY THE BUILDING OWNER DATED 04.07.2020.

EXHIBIT P3              THE PHOTOCOPY OF THE LICENSE     DATED
                        07.11.2020   ISSUED BY   THE       1ST
                        RESPONDENT.
EXHIBIT P4              THE PHOTOCOPY OF THE FOOD       SAFETY
                        LICENSE DATED 31.05.2019.
EXHIBIT P5              THE PHOTOCOPY OF THE NOTICE NO.H1
                        180/2021 DATED 08.01.2021 ISSUED BY
                        THE 1ST RESPONDENT.
EXHIBIT P6              THE PHOTOCOPY OF THE REQUEST DATED

09.01.2021 ISSUED BY THE PETITIONER.

EXHIBIT P7              THE   PHOTOCOPY    OF    THE   DETAILED
                        EXPLANATION     SUBMITTED    BY     THE
                        PETITIONER DATED 18.01.2021.
EXHIBIT P8              THE PHOTOCOPY OF THE NOTICE NO.H1-
                        180/2021 DATED 25.01.2021 ISSUED BY
                        THE 1ST RESPONDENT.