Kerala High Court
Shareef .K.K vs Kattappana Municipality on 17 August, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 17TH DAY OF AUGUST 2022 / 26TH SRAVANA, 1944
WA NO. 1050 OF 2022
AGAINST THE JUDGMENT IN WP(C) 13482/2022 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
ROY MATHEW,
AGED 48 YEARS, S/O. MATHAI,
RESIDING AT NARAMANGALATH,
THOPRAMKUDY P.O., THOPRAMKUDY,
VATHIKUDY, IDUKKI, KERALA, PIN 685 515.
BY ADVS.
SRI.M.NARENDRA KUMAR
SRI.HARSHADEV M.
RESPONDENTS/RESPONDENTS:
1 KATTAPPANA MUNICIPALITY
REP.BY ITS SECRETARY, KATTAPPANA.P.O.,
IDUKKY DISTRICT, PIN- 685 508.
2 SHINTOMON,
AGED 37 YEARS, S/O. MATHEW,
THENMANAL HOUSE, PERUMTHOTTY,
VATHIKUDY, IDUKKI -685 515.
BY ADV SHRI.UNNIKRISHNAN.V.ALAPATT, SC, KATTAPPANA
MUNICIPALITY
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17.08.2022,
ALONG WITH WA.1139/2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A.Nos.1050 & 1139 of 2022
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 17TH DAY OF AUGUST 2022 / 26TH SRAVANA, 1944
WA NO. 1139 OF 2022
AGAINST THE JUDGMENT IN WP(C) 7284/2022 OF HIGH COURT OF
KERALA
APPELLANT/PETITIONER:
SHAREEF K.K
AGED 42 YEARS,S/O MOHAMMED KOYA,
KOZHIYOD HOUSE, KALLURUTTY P O,
THOTTAPPURAM, IDUKKI-685 562.
BY ADVS.
SRI.N.N.SUGUNAPALAN (SR.)
SRI.S.SUJIN
RESPONDENTS/RESPONDENTS:
1 KATTAPPANA MUNICIPALITY
REPRESENTED BY ITS SECRETARY,
KATTAPPANA, IDUKKI-685 515.
2 SECRETARY,
KATTAPPANA MUNICIPALITY,
KATTAPPANA, IDUKKI - 685 515.
3 SHINTUMON,
AGED 37 YEARS, S/O MATHEW,
THENMANAL HOUSE, PERUMTHOTTY,
VATHIKUDY, IDUKKI-685 515.
W.A.Nos.1050 & 1139 of 2022
3
4 SOBIN KURIAN,
AGED 34 YEARS, S/O KURIAN,
KALAPPURAKKAL HOUSE,
THANKAMANI P O, NEELIVAYAL-685 609.
BY ADV SHRI.UNNIKRISHNAN.V.ALAPATT, SC, KATTAPPANA
MUNICIPALITY
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
17.08.2022, ALONG WITH WA.1050/2022, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
W.A.Nos.1050 & 1139 of 2022
4
JUDGMENT
Dated this the 17th day of August, 2022
Shaji P.Chaly, J.
Writ appeals are filed by the writ petitioners in W.P.
(C)Nos.13482 of 2022 and 7284 of 2022 challenging the
common judgment of the learned single Judge dated
19.07.2022, whereby, the learned single Judge dismissed the
writ petitions and declined the following reliefs sought for in
the writ petitions.
Prayers sought for in W.P.(C)No.13482 of 2022
"i) Issue a writ of certiorari or other appropriate writ,
order or direction directing the first respondent to
refrain from implementing the Decision No.8 taken
in the meeting held on 18.02.2022 and quash
Exhibit - P2."
Prayers sought for in W.P.(C)No.7284 of 2022
"i. To issue a writ of certiorari or any other appropriate
writ, order or direction to quash item No.8 of
Exhibit P7 minutes dated 18/02/2022;
ii. To issue a writ of mandamus or any other
appropriate writ, order or direction directing the 2nd
respondent to conduct public auction for letting
W.A.Nos.1050 & 1139 of 2022
out meat stall and slaughter house in Kattappana
Municipality for the year 2022-2023."
2. The contention put forth by the appellants is basically
relying upon the decision No.8 of the Municipal Council of the
Kattappana Municipality dated 18.02.2022 whereby the
Municipal Council has decided to renew the licences of the
existing licensees in regard to meat stalls, comfort station,
slaughter house, etc. instead of conducting public auction by
increasing the rental by 10%. The learned single Judge, after
taking into consideration the judgment of this court in
Marykutty George v. State of Kerala (2005 (2) KLT 515), has
held that the Municipal Council is vested with ample powers
under law to grant renewal to the existing licensees to carry
on business activities in the buildings owned by the
Municipality. Paragraphs 20 and 21 of the judgment of the
learned single Judge is relevant to the context and they read
thus:
"20. Ordinarily, when a meat stall, slaughter house or
any other licences under a Local Self Government authority
is to be given to parties, auction will be the best course.
W.A.Nos.1050 & 1139 of 2022
Auctioning the stalls will be in the public interest also.
However, when the stalls are licensed and the Municipal
authorities find that the conduct of the business activity by
the existing licensees is acceptable to the Municipal
authorities and the general public, there is no embargo on
the Local Self Government Institutions in extending the
period of licence.
21. This Court considered the issue in Marykutty
George v. State of Kerala [2005 (2) KLT 505] and this Court
held that in the case of renewal of lease or licence, the rule
does not insist for any public auction or tender to be
conducted. That does not mean that there is a vested right
in the lessee or licensee conferring any automatic renewal
of lease or licence. In the case of new building, while the
rule insists for public auction or tender, in the case of
existing lease or licence, there is no such insistence and the
exclusion of the existing lease or licence is only from the
obligation to conduct public auction or tender. In other
words, in the case of existing lease or licence, it is only a
renewal of the grant and hence it is not compulsory to
reauction the same. This Court further held that a public
authority like the Panchayat is therefore entitled to decide
whether or not on the expiry of the lease, in the absence of
any clause contained in the grant, extension should be
given and if so, whether it should be subject to any
enhancement of rate of rent or licence fee, as the case may
be, in the best interest of the Panchayat. "
3. The paramount contention advanced by the
W.A.Nos.1050 & 1139 of 2022
appellants is that in the meeting of the Municipal Council held
on 18.02.2022, there is no agenda drawn up for considering as
to whether the licences of the existing licensees is to be
extended but, on the other hand, the agenda of the meeting
was to conduct auction of the buildings of the Municipality
and, therefore, the decision taken by the Municipal Council
without an agenda item for renewal of the licences of the
existing licensees is totally illegal and cannot be sustained
under law. That apart, it is submitted that the offer made by
third persons for the shops in question were far exceeding
10% and, therefore, the Municipality, consequent to the
decision taken to renew the licences, has suffered a loss,
which is against public interest. Various other contentions are
also raised.
4. The question emerges for consideration is whether
the Municipal Council has acted in accordance with law. The
issue is guided by section 215 of the Kerala Municipality Act,
1994 dealing with the power of the Municipality to acquire
and dispose of property belonging to the Municipality. Sub-
W.A.Nos.1050 & 1139 of 2022
section (2)(a) of section 215 makes it clear that the
Municipality may construct commercial or other buildings and
let them out to the public who need them on licence and may
charge such fees as it may fix for the use and occupation of
the same in the manner prescribed. Proviso thereto makes it
clear that after the period of licence, a licence may be
renewed subject to such terms and conditions as may be fixed
at that time. Clause (c) of sub-section (2) of section 215
emphasises that in all cases except renewal of licence or
rehabilitation of a licensee, licence shall be granted only by
public auction or tender. Therefore, it can be seen that the
Municipality is vested with ample powers to renew the
existing lease.
5. In order to implement the provisions of section 215,
the State Government has introduced the Kerala Municipality
(Acquisition and Disposal of Property) Rules, 2000. Rule 7(1)
of the Rules 2000 makes it clear that the Municipality may,
subject to the conditions mentioned in section 215 of the Act,
on licence basis for periods as fixed by the Council, give on
W.A.Nos.1050 & 1139 of 2022
rent or lease, its own buildings. That apart, rule 11 dealing
with transfer to be either in public auction or through tenders
states that the transfer of the property of the Municipality,
through sale, except renewal of licences, rehabilitation of
licensees, granting of lease, letting out on rent, shall be either
in public auction or by inviting tenders.
6. Therefore on a reading of the provisions of the Act
1994 and the Rules 2000, it is clear that having vested with
sufficient powers to renew the existing licences, merely
because the Municipal Council has decided to renew the
licences on receiving 10% hike in the licence fees, overlooking
the offers made by third persons, cannot be sustained under
law. That apart, having gone through the agenda No.8
produced by the appellants what we could gather is that even
though in the heading it is shown as meeting convened for
deciding on the auction to be conducted of the municipal
shop rooms, applications submitted by the existing licensees
were also considered along with the same and it was
accordingly that the decision was taken by the Municipal
W.A.Nos.1050 & 1139 of 2022
Council to renew the existing licences insofar as the shops in
question are concerned, by enhancing 10% fees of the
existing licence fees.
7. Taking into account the factual and legal
circumstances, we have no hesitation to hold that the learned
single Judge was right in declining the reliefs sought for by
the appellants. We also find that the appellants have not
established any case of jurisdictional error or other legal
infirmities justifying interference of this court in the appeals,
exercising the power conferred under section 5 of the Kerala
High Court Act.
Upshot of the above discussion is that the appeals fail.
Accordingly, they are dismissed.
Pending interlocutory applications, if any, shall stand
closed.
Sd/-
S.Manikumar
Chief Justice
Sd/-
Shaji P.Chaly
Judge
vpv //true copy//
P.A. to Judge
