R.Satheesh Kumar vs State Of Kerala, Represented By ...
2022 Latest Caselaw 1437 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

    WEDNESDAY, THE 2ND DAY OF FEBRUARY 2022 / 13TH MAGHA, 1943

                       WP(C) NO. 14690 OF 2021

PETITIONER:

          R.SATHEESH KUMAR,
          AGED 55 YEARS, S/O.LATE RAJAPPAN,
          PADMANIVAS, SANSKRIT COLLEGE LANE,
          VANDROSS JUNCTION, THIRUVANANTHAPURAM-695 001,
          NOW RESIDING AT VADAKKEMUKACHIRA VEEDU,
          T.C. NO.64/212, PACHALLOOR P.O.,
          THIRUVANANTHAPURAM, PIN-695 027.

          BY ADVS.
          K.B.PRADEEP
          HARISANKAR R.
          PRIYA MARY P.L.


RESPONDENTS:

    1     STATE OF KERALA,
          REPRESENTED BY SECRETARY,
          TAXES AND FINANCE, GOVERNMENT OF KERALA,
          THIRUVANANTHAPURAM-695 002.

    2     THIRUVANANTHAPURAM MUNICIPAL CORPORATION,
          REPRESENTED BY ITS SECRETARY,
          THIRUVANANTHAPURAM-695 001.

    3     THE DEPUTY COMMISSIONER OF EXCISE,
          OFFICE OF THE DEPUTY COMMISSIONER,
          GOVERNMENT OF KERALA, EAST FORT,
          THIRUVANANTHAPURAM-695 004.

    4     THE CIRCLE INSPECTOR OF EXCISE,
          THALIYAL ROAD, KALADY, KARAMANA,
          THIRUVANANTHAPURAM, KERALA-695 002.
 W.P.(C)No.14690 of 2021-S
                                  2


     5       THE KERALA STATE CO-OPERATIVE CONSUMER'S
             FEDERATION LIMITED (CONSUMER FED),
             REPRESENTED BY ITS MANAGING DIRECTOR,
             REGIONAL OFFICE, THRIVENI TOWER, STATUE
             JUNCTION, THIRUVANANTHAPURAM-695 001.

     6       SUGATHAN,
             THIRUVATHIRA, PULLOORKONAM, PANANGODU, VIZHINJAM
             P.O., THIRUVANANTHAPURAM-695 001.

             BY ADVS.
             N.NANDAKUMARA MENON (SR.)
             SRI. K.P.HARISH, SR GP
             M.SASINDRAN
             V.G.ARUN (K/795/2004)
             SHRI.P.K.MANOJKUMAR,SC,TVPM CORPORATION
             NEERAJ NARAYAN
             V.JAYA RAGI


      THIS    WRIT   PETITION    (CIVIL)   HAVING   COME    UP    FOR
ADMISSION     ON   02.02.2022,   THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 W.P.(C)No.14690 of 2021-S
                                    3


                              JUDGMENT

Dated this the 2nd day of February, 2022

S.Manikumar, C.J.

Considering the prayers sought for in the writ petition

and the subsequent amendments sought for, on 30.09.2021,

we passed the following order:

"The petitioner has sought for the following reliefs:

1. Call for from respondents 3 and 4 the records leading to grant of permission to operate FL-1 shop No. 1016 to the 5th respondent at the premises (TC No. 58/2808 and 58/2809) owned by the 6th respondent at Thiruvallom, Thiruvananthapuram and quash the same by a writ of certiorari.

2. Direct the respondent to take necessary action warranted under Section 401 of the Kerala Municipality Act, against the unauthorised construction of 6th respondent's building in Ward No.66 (TC No. 58/2808 and 58/2809) Thiruvallom Village.

3. Direct the 2nd respondent to ensure that all commercial activities/trades conducted by the 5th respondent in 6th respondent's building (in ward No. 66 of Thiruvallom Village, bearing No. TC No. 58/2808 and 58/2809) is stopped, if the same is conducted/carried on without a duly issued trade licence under the Municipality Act, 1994, in an unauthorised building.

2. According to the petitioner, Sugathan, Thiruvathira, Pulloorkonam, Panangodu, Vizhinjam P.O., Thiruvananthapuram -

695 001, 6th respondent, in the guise of reconstruction, W.P.(C)No.14690 of 2021-S

constructed a new three storied building without authorised plan and building permit. Grievance of the petitioner is the even though the trade licence was repeatedly declined by the Municipal Corporation, the 5th respondent, a foreign liquor outlet has been started in the 6th respondent's building, namely T.C. Nos. 58/2808 and TC /2809. To support the said contention, petitioner has also filed supporting documents.

3. Sri. K. P. Harish, learned Senior Government Pleader, takes notice for respondents 1, 3 and 4. Sri. M. Sasindran takes notice for respondent No.5. Sri. P. K. Manoj Kumar, learned Standing Counsel, takes notice for the 2nd respondent. Issue notice to the 6th respondent by speed post returnable in two weeks. I.A. No. 1 of 2021

4. This is a petition to produce the trade licence dated 01.06.2021 issued by Thiruvananthapuram Municipal Corporation represented by its Secretary, Thiruvananthapuram - 695 001, 2 nd respondent to the 5th respondent to run a foreign liquor shop in the premises owned by the 6th respondent as Ext. P17.

5. Heard. Satisfied with the reasons, this I.A is allowed.

I.A.No. 2 of 2021

6. This petition is filed for amending writ petition adding

certain grounds and relief as follows:

"After ground (f), add the following as:-

(G) The Ext. P-17 is issued without proper enquiry and by non-

application of mind. The same is issued to some individual when the trade licence is required by the legal entity by name, The Kerala State Co-Operative Consumer's Federation Limited W.P.(C)No.14690 of 2021-S

(H)The 2nd Respondent had no materials before it to conclude that the unauthorized building in which the trade license is sought for has become an authorized or 'regularized one.

(I) Exhibit P-17 is arbitrary, illegal and unconstitutional. (J) Exhibit P-17 is issued in violation of the governing Act and Rules, therefore, liable to be set aside. After Relief (d), add the following as (e):

e) Call for the records for the issuance of Exhibit P-17 and quash the same by issuing the Writ of Certiorari"

7. We are satisfied with reasons assigned for the same and accordingly, I.A is allowed. Learned counsel for the petitioner is permitted to file the amended writ petition. I.A.No. 3 of 2021

8. This is a petition seeking leave to produce the letter dated 11.08.2021 issued by the Health Supervisor, Thiruvananthapuram Corporation, to the petitioner as Ext. P18, which reads thus:

Thiruvananthapuram Corporation ZTH/21728/2021 Date:11-08-2021 NOTICE

Subiect-Thiruvananthapuram Corporation-Thiruvallam Zonal Office Health Dept.- TC 58/2808, 58/2809 license regarding liquor shops in the building regarding.

Ref- 1. Your complaint dt .25.6.2021

2. Report of health Inspector dt.3.8.2021

On consideration of the complaint under reference no.l above, regarding grant of License for conduct of Foreign Liquor Shop in T.C. 58/2508 and T.C 58/2809, in Poonkunnam Division, it is found that T.C.58/2808 and T.C 58/2809 is W.P.(C)No.14690 of 2021-S

assessed as commercial buildings as per assessment register as per report of Revenue Department and that License is so issued. On finding that the building is an unauthorized one, the Revenue Department has initiated proceedings for cancellation of building number and the License would be cancelled as and when it is so reported.

sd/-

Health supervisor

To-

SatheeshKumar. R, Padma Nivas, TC 14/2055, Vandross Jn. Thiruvananthapuram"

We are of the view that the said document is relevant for the purpose of adjudication of the issues raised. Hence, this I.A. is allowed. Ext.P18 is taken on record. "

2. Subsequently, on 03.12.2021, we passed the following

order:

"Even though notice was ordered as early as on 30th September, 2021, respondent Nos. 1 to 5 have not filed any counter affidavit. Notice to respondent No.6 has been served. 2. Even though it is alleged that building Nos. TC Nos. 58/2808 and 58/2809 owned by respondent No. 6 in Ward No. 66 of Thiruvallom Village and where FL-1 shop No. 1016 is running, is an unauthorised construction, respondent No. 6 has not chosen to file any statement of facts or counter affidavit to dispute the said averment. 3.

If the respondents do not file a statement/ counter affidavit as the case may be before the next posting date, W.P.(C)No.14690 of 2021-S

this Court would be constrained to pass appropriate orders. Post the matter on 21.12.2021. Respondents shall ensure the filing of the counter affidavits in time."

3. On this day, when the matter came up for further

hearing, on the basis of the averments made in the counter

affidavit and on instructions, Mr.N.Nandakumara Menon,

learned standing counsel appearing for the

Thiruvananthapuram Municipal Corporation (respondent

No.2) submitted that after considering the material on record,

proceedings under Section 242 of the Kerala Municipality Act,

1994 has been initiated. It is his further contention that action

under Section 406 will be taken for demolition of the building.

4. Learned standing counsel further submitted that the

D&O Licence granted to the Kerala State Co-operative

Consumers' Federation Limited, Thiruvananthapuram

(respondent No.5) has been cancelled.

5. Per contra, Mr.V.G.Arun, learned counsel appearing for

the 6th respondent submitted that being aggrieved by the

action taken under Section 242 of the Kerala Municipality Act, W.P.(C)No.14690 of 2021-S

1994, respondent No.6/building owner has approached the

Tribunal for Local Self-Government Institutions,

Thiruvananthapuram in Appeal No.664 of 2021 and in

I.A.No.1377 of 2021 and that the Tribunal was pleased to stay

the order dated 08.09.2021 passed under Section 242 of the

Kerala Municipality Act, 1994. For brevity, the order made by

the Tribunal is extracted:

"This appeal is filed against order bearing No.ZTR/50/38281/2021 dated 08.09.2021 of the Secretary, Thiruvananthapuram Corporation. Along with the appeal, the appellant filed the above petition to stay the implementation of the impugned order.

After having considered the nature of the impugned order from which the appeal is preferred and the grounds stated in the appeal memorandum and the averments in the affidavit in support of the petition, I am satisfied that the appellant has succeeded in establishing a prima facie case entitling him to get a stay as prayed for.

In the result, the impugned order is stayed until further orders."

6. As regards the contention of Mr.N.Nandakumara

Menon, learned standing counsel for the Corporation, that

D&O Licence has been cancelled, Mr.M.Sasindran, learned W.P.(C)No.14690 of 2021-S

counsel for the Kerala State Co-operative Consumers'

Federation Limited (respondent No.5) submitted that no

order cancelling the D&O Licence has been served on the

Federation.

7. On the above, Mr.N.Nandakumara Menon, learned

standing counsel for the Corporation, submitted that he has

been telephonically instructed by the officials of the

Corporation that the D&O Licence has been cancelled.

8. Submission of the learned standing counsel for the

Corporation is placed on record.

9. Section 242 of the Kerala Municipality Act, 1994 reads

thus:

"242. Assessment of building constructed unlawfully.-- (1) Notwithstanding anything contained in this Act or the rules made thereunder, where any person has unlawfully constructed or reconstructed any building, such building shall, without prejudice to any action that may be taken against that person, be liable to tax from the date of completion or occupation whichever is earlier till the date of demolition of that building.

(2) Nothing contained in sub-section(l) shall preclude the Secretary from proceeding against such person under section 406 of the Act and the owner shall not be entitled to any compensation or damages due to any action taken by the Secretary under this section."

Action under the above said section has been taken. W.P.(C)No.14690 of 2021-S

10. Section 406 of the Kerala Municipality Act, 1994 is

reproduced:

"406. Demolition or alteration of building work unlawfully commenced, carried on or completed.-- (1) Where the Secretary is satisfied-

(i) that the construction, reconstruction or alteration of any building or digging of any well-

(a) has been commenced without obtaining the permission of the Secretary or in contravention of the decision of the Council; or

(b) is being carried on, or has been completed otherwise than in accordance with the plans or specifications on which such permission or decision was based; or

(c) is being carried on, or has been completed in breach of any of the provisions of this Act or any rule or bye-law or order made or issued thereunder or any direction or requisition lawfully given or made under this Act, such rule, bye-law or order; or

(ii) that any alteration required by any notice issued under section 395 has not been duly made; or

(iii) that any alteration of or addition to any building or any other work made or done for any purpose in or upon any building has been commenced or is being carried on or has been completed in contravention of the provisions of section 405, he may make a provisional order requiring the owner or the person for whom the work is done to demolish the work done, or so much of it as, in the opinion of the Secretary, has been unlawfully executed or to make such alterations as may, in the opinion of the Secretary, be necessary to bring the work in conformity with the provisions of this Act, bye-laws, rules, direction, order or requisition as aforesaid, or with the plans and specifications on which such permission or decision was based, and may also direct that until the said order is complied with, the owner or such person shall refrain from proceeding with the work.

Provided that the Secretary may, on realisation of a W.P.(C)No.14690 of 2021-S

compounding fees as may be fixed by the Government, regularise any constructions, reconstruction or alteration of any building or digging of any well, commenced, carried on or completed without getting a plan approved by the Secretary or in deviation of the approved plan, if such construction, reconstruction or alteration of the building or digging of the well does not contravene any of the provisions and specifications mentioned in this Act or the Building Rules made thereunder.

(2) The Secretary shall serve a copy of the provisional order made under sub-section (1) on the owner or the person for whom such work is done together with a notice requiring him to show cause within a reasonable time, to be specified in such notice why the order should not be confirmed.

(3) Where the owner or the person for whom the work is done fails to show cause to the satisfaction of the Secretary, the Secretary may confirm the order or modify the same to such extent as he may think fit to make, and such order shall then be binding on the owner or the person for whom the work is done and on the failure to comply with the order, the Secretary may himself cause the building or part thereof, demolished or the well dismantled, as the case may be and the expenses therefor shall be recoverable from the owner or such person.

(4) Notwithstanding anything contained in sub- section (2) or sub-section (3), prosecution proceedings against the owner or the person for whom the work is done may be initiated.

(5) Where the Government is satisfied that the construction, reconstruction or alteration of any building has been carried out in breach of any of the provisions of this Actor any rules made thereunder or any direction lawfully given by the Government, or Secretary, the Government may direct the Secretary of the Municipality to cause demolition of such construction, reconstruction or alteration unlawfully carried out and if such direction is not complied within the time limit specified in such direction, the Government may arrange the demolition and cost thereof shall be recovered from the W.P.(C)No.14690 of 2021-S

Municipality."

11. As per the above said submission, steps are being

taken to enforce Section 406 of the Act.

12. Action has been taken against the owner of the

building and the licencee, owner of the building has taken

recourse before the appellate authority. So also, the licencee

has a right to approach the appellate authority.

13. Having regard to the action already taken, which we

have recorded in the foregoing paragraphs, there is no need

to retain the writ petition, as the prayers sought for are

answered.

Placing on record the above, the writ petition is closed.

Pending interlocutory applications, if any, shall stand

closed.

Sd/-

S.Manikumar Chief Justice

Sd/-

Shaji P.Chaly Judge vpv W.P.(C)No.14690 of 2021-S

APPENDIX OF WP(C) 14690/2021 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE JUDGMENT IN WPC NO.4452/2017 DATED 10.02.2017.

Exhibit P2 TRUE COPY OF THE JUDGMENT IN WPC NO.10009/2017 DATED 05.04.2017.

Exhibit P3 TRUE COPY OF THE JUDGMENT DATED 13.09.2018.

Exhibit P4 TRUE COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT DATED 23.04.2020 ALONG WITH ITS ENGLISH TRANSLATION.

Exhibit P5 TRUE COPY OF THE PROPERTY TAX RECEIPT FOR DOOR NO.58/2808 DATED 16.09.2020 ALONG WITH ITS ENGLISH TRANSLATION.

Exhibit P6 TRUE COPY OF THE PROPERTY TAX RECEIPT FOR DOOR NO.58/2809 DATED 16.09.2020 ALONG WITH ITS ENGLISH TRANSLATION.

Exhibit P7 TRUE COPY OF THE LETTER BY THE 4TH RESPONDENT DATED 08.04.2021 ALONG WITH ITS ENGLISH TRANSLATION.

Exhibit P8 TRUE COPY OF THE LETTER ISSUED BY THE 4TH RESPONDENT TO THE 2ND RESPONDENT DATED 20.04.2021 ALONG WITH ITS ENGLISH TRANSLATION.

Exhibit P9 TRUE COPY OF THE COMPLAINT DATED 21.04.2021 FILED BY SRI.DINESH FORWARDED TO THE 4TH RESPONDENT BY THE 3RD RESPONDENT FOR HIS COMMENTS DATED 21.04.2021 ALONG WITH ITS ENGLISH TRANSLATION.

Exhibit P10 TRUE COPY OF THE LETTER BY THE 3RD RESPONDENT TO THE EXCISE COMMISSIONER DATED 29.04.2021 ALONG WITH ITS ENGLISH TRANSLATION.

Exhibit P11 TRUE COPY OF THE LETTER DATED 27.05.2021 ALONG WITH ITS ENGLISH TRANSLATION. W.P.(C)No.14690 of 2021-S

Exhibit P12 TRUE COPY OF THE PROCEEDING DATED 30.01.2019 BY THE 2ND RESPONDENT ALONG WITH ITS ENGLISH TRANSLATION.

Exhibit P13 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER TO THE 1ST RESPONDENT, ALONG WITH ITS ENGLISH TRANSLATION.

Exhibit P14 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER TO THE 2ND RESPONDENT ALONG WITH ITS ENGLISH TRANSLATION.

Exhibit P15 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER TO THE 3RD RESPONDENT ALONG WITH ITS ENGLISH TRANSLATION.

Exhibit P16 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER TO THE 5TH RESPONDENT ALONG WITH ITS ENGLISH TRANSLATION.

Exhibit P17 TRUE COPY OF THE LICENSE DT.1/6/2021 ISSUED BY THE 2ND RESPONDENT TO SINDHU T.S. ALONG WITH ITS ENGLISH TRANSLATION.

Exhibit P18 TRUE COPY OF THE NOTICE DT.11/8/2021 ISSUED BY THE 2ND RESPONDENT, ALONG WITH ITS ENGLISH TRANSLATION.

RESPONDENTS' EXHIBITS ANNEXURE R3(A) TRUE COPY OF LICENSE NO.140167071900264 DATED 29.9.2019 ISSUED BY THE CORPORATION OF THIRUVANANTHAPURAM AND ENGLISH TRANSLATION.

ANNEXURE R3(B) TRUE COPY OF LICENSE NO.140167072100339 DATED 1.6.2021 AND ENGLISH TRANSLATION.

ANNEXURE R3(C) TRUE COPY OF THE LETTER NO.ZTR 50/1945/2021 DATED 23.04.2020 AND ENGLISH TRANSLATION.

ANNEXURE R3(D) TRUE COPY OF THE LETTER NO.ZTR 50/1945/2021 DATED 21.06.2021 AND ENGLISH TRANSLATION.

//TRUE COPY//

P.A. TO JUDGE