Kerala High Court
Vyapari Vyavasayi Co-Operative ... vs The Kayamkulam Municipality on 3 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
WP(C) NO. 20072 OF 2020
PETITIONER:
VYAPARI VYAVASAI CO-OPERATIVE SOCIETY LTD. NO. A -
1091, KAYAMKULAM REPRESENTED BY ITS SECRETARY
SUJITHA GOPAKUMAR, VYAPARA BHAVAN,
MARKET ROAD, KAYAMKULAM.
BY ADV A.SHAFEEK (KAYAMKULAM)
RESPONDENTS:
1 THE KAYAMKULAM MUNICIPALITY
REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE,
KAYAMKULAM, ALAPPUZHA DISTRICT - 690 502.
2 THE SECRETARY, KAYAMKULAM MUNICIPALITY
MUNICIPAL OFFICE, KAYAMKULAM,
ALAPPUZHA DISTRICT - 690 502.
3 THE MUNICIPAL COUNCIL
KAYAMKULAM MUNICIPALITY REPRESENTED BY ITS
CHAIRMAN, MUNICIPAL OFFICE, KAYAMKULAM - 690 502.
4 SHAMILA ANIMON
W/O.ANIMON, THUNDAYATH HOUSE, CHERAVALLY,
KAYAMKULAM - 690 502.
BY ADV.T.R.RAJAN, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 03.06.2022, ALONG WITH WP(C).26477/2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C).Nos.20072/20 & 26477/21
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
WP(C) NO. 26477 OF 2021
PETITIONER:
VYAPARI VYAVASAYI CO-OPERATIVE SOCIETY LTD.
NO.A 1091, KAYAMKULAM REPRESENTED BY ITS
SECRETARY SUJITH GOPAKUMAR, VYAPARA BHAVAN,
MARKET ROAD, KAYAMKULAM.
BY ADV A.SHAFEEK (KAYAMKULAM)
RESPONDENTS:
1 THE KAYAMKULAM MUNICIPALITY
REPRESENTED BY ITS SECRETARY,
MUNICIPAL OFFICE, KAYAMKULAM,
ALAPPUZHA DISTRICT - 690 502.
2 THE SECRETARY
KAYAMKULAM MUNICIPALITY, MUNICIPAL OFFICE,
KAYAMKULAM, ALAPPUZHA DISTRICT - 690 502.
3 THE MUNICIPAL COUNCIL
KAYAMKULAM MUNICIPALITY REPRESENTED BY ITS
CHAIRMAN, MUNICIPAL OFFICE,
KAYAMKULAM - 690 502.
4 SHAMILA ANIMON
W/O.ANIMON, THUNDAYATH HOUSE,
CHERAVALLY, KAYAMKULAM - 690 502.
BY ADVS.
SHRI.T.R.RAJAN, SC, KAYAMKULAM MUNCIPALITY
SAJU J PANICKER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 03.06.2022, ALONG WITH WP(C).20072/2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C).Nos.20072/20 & 26477/21
3
P.V.KUNHIKRISHNAN, J.
--------------------------------
W.P.(C).Nos.20072 of 2020 & 26477 of 2021
----------------------------------------------
Dated this the 03rd day of June, 2022
JUDGMENT
These two writ petitions are connected and therefore, I
am disposing these writ petitions by a common judgment.
2. I will narrate the facts in W.P.(C). No.26477 of 2021.
Ext.P11 is an order passed by the Secretary of Kayamkulam
Municipality, by which the petitioner was directed to vacate 3
rooms belonging to the Municipality in the industrial estate.
Ext.P11 order was challenged by the petitioner before this
Court by filing W.P.(C). No.16056 of 2018. This Court, as per
Ext.P16 judgment, allowed the writ petition and directed the
Secretary of Kayamkulam Municipality to take action in
accordance to law, mainly for the reason that Ext.P11 is an
order passed without hearing the parties. After Ext.P16
judgment, the Secretary of Kayamkulam Municipality placed
the matter before the Municipal Council for the decision. At
that stage, the petitioner filed W.P.(C). No.20072 of 2020. This
Court passed an interim order in that writ petition on
W.P.(C).Nos.20072/20 & 26477/21
28.09.2020 by which this Court observed that the Municipal
Council shall not consider the matter, but clarified that the
Secretary of Kayamkulam Municipality is entitled to take an
appropriate decision, since the jurisdiction is conceded to by
the petitioner. Thereafter Ext.P30 order is passed. The same
is challenged in this case.
3. Heard the learned counsel for the petitioner,
learned Standing Counsel for the Municipality and also the
learned counsel for the 4th respondent.
4. The learned counsel for the petitioner reiterated his
contentions in these writ petitions. The learned counsel
submitted that when this Court, as per Ext.P16 judgment,
directed the Secretary of Kayamkulam Municipality to
reconsider the matter after giving an opportunity of hearing to
both sides, the Secretary passed Ext.P30 order in which there
is no consideration of facts. It is not a speaking order.
Therefore the counsel submitted that Ext.P30 order will not
stand. The counsel further submitted that the eviction order
was originally passed by the Secretary of Kayamkulam
Municipality based on an alleged complaint filed by the 4 th
respondent. According to the petitioner, it is a forged
W.P.(C).Nos.20072/20 & 26477/21
document and petitions are submitted before the Secretary
pointing out the forgery. The learned Standing Counsel for
the Municipality supported Ext.P30 order. He submitted that
the room admittedly belongs to the Municipality and the
Municipality is entitled to pass eviction order and there is
nothing wrong in Ext.P30. The learned counsel for the 4 th
respondent submitted that the allegation that the petition filed
by the 4th respondent is a forged one is not correct and if the
petitioner is aggrieved, he can approach the appropriate
authority and the 4th respondent is ready to defend the case.
5. This Court considered the contentions of the
petitioner and the respondents. First, I will consider Ext.P16
judgment passed by this Court. It will be better to extract the
relevant portion of that judgment:
"3. Having heard the learned counsel for the
parties and perused the paper book, Ext.P16
impugned notice commanding the petitioner to close
down the industrial unit within 7 days is wholly
fallacious and arbitrary. The authorities are expected
to discharge the obligations in a proper and
reasonable manner. If at all there was some kind of
volition or non compliance of the statutory
provisions, at least an opportunity of hearing ought
to have been afforded to the petitioner society,
W.P.(C).Nos.20072/20 & 26477/21
because closing of the business, which has been
established on a no profit basis, would not only result
into taking away the bread and butter of numerous
employees, but would also affect the economic
conditions of the society. For the above reason, the
impugned Ext.P16 order is hereby set aside and the
matter is remitted to the second respondent,
Kayamkulam Municipality to take action, in
accordance with law, after affording an opportunity
of hearing to the petitioner.
Writ petition stands disposed of as above."
6. On a perusal of Ext.P16 judgment it is clear that
the direction is issued to the Secretary of Kayamkulam
Municipality. Thereafter the Secretary placed the matter
before the Municipal Council. This cannot be justified. That is
why the petitioner filed W.P.(C). No.20072 of 2020. This Court
passed an interim order in that writ petition on 28.09.2020,
which is extracted hereunder:
"The petitioner asserts that in view of the directions
in Ext.P16 judgment, the 3 rd respondent Council of
the Kayamkulam Municipality cannot take a decision
as regards their eviction from the industrial estate
situated in Ward No.24. They allege that in spite of
this, the 2nd respondent-Secretary is placing the file
before the 3rd respondent for orders and prays that
further action be stayed.
Sri.T.R.Rajan, learned Standing Counsel for the
W.P.(C).Nos.20072/20 & 26477/21
Municipality, however, submits that going by the
applicable Rules, the jurisdiction in this matter is
only with the 3rd respondent and not the 2 nd
respondent.
I, therefore, adjourn this matter to be called on
08.10.2020, for the Kayamkulam Municipality to file
an appropriate statement; until which time, all
further action being pursued by the 3rd respondent
will stand deferred; however, clarifying that the 2 nd
respondent will be entitled to take an appropriate
decision, since this jurisdiction is conceded to by the
petitioner."
7. Based on the clarification issued by this Court in
the interim order on 28.09.2020 in W.P.(C). No.20072 of 2020,
the Secretary of Kayamkulam Municipality passed Ext.P30
order. I perused Ext.P30 order. It is not a speaking order.
There is no consideration of the facts. There is no resolution
of the contentions raised by the parties. The relevant portion
of the order is extracted hereunder:
"ടി തീരുമാന പ്രകാരം വ്യാപാരി വ്യവസായി സഹകരണ
സംഘത്തിന്റെ ലൈസൻസ് റദ്ദ് ചെയ്യുന്നതിന്
തീരുമാനിച്ചിട്ടുള്ളതാണ്. ആയതിനെതിരെ W.P.(C). No.16056/18
പ്രകാരം ബഹു. ഹൈക്കോടതിയിൽ കേസ് ഫയൽ
ചെയ്തിട്ടുള്ളതും 21.01.2020 ൽ വിധി വന്നിട്ടുള്ളതുമാണ്. ആയതിൻ
പ്രകാരം നടപടികൾ സ്വീകരിച്ചുവരികയാണ്. സംഘം വീണ്ടും
W.P.(C).Nos.20072/20 & 26477/21
ഹൈക്കോടതിയെ സമീപിക്കുകയും, ബഹു.ഹൈക്കോടതിയുടെ
28.09.2020 ലെ W.P.(C). No.20072/20 നമ്പർ ഉത്തരവ് പ്രകാരം
ഉചിതമായ തീരുമാനം എടുക്കുന്നതിന് നഗരസഭാ സെക്രട്ടറിയെ
ചുമതലപ്പെടുത്തിയിട്ടുള്ളതാണ്. ടി നോട്ടീസ് കൈപ്പറ്റി 15
ദിവസത്തിനുള്ളിൽ ടി കെട്ടിടങ്ങൾ ഒഴിഞ്ഞു പൂട്ടി താക്കോൽ
നഗരസഭയെ രേഖാമൂലം ഏല്പിക്കേണ്ടതാണ് എന്ന്
അറിയിക്കുന്നു."
8. I am dissatisfied the way in which the Secretary of
Kayamkulam Municipality passed Ext.P30 order. It will not
stand. This order is to be set aside and the Secretary of
Kayamkulam Municipality should pass orders as directed by
this Court in Ext.P16 judgment and as clarified by this Court in
the interim order dated 28.09.2020 in W.P.(C). No.20072 of
2020. The learned counsel for the petitioner submitted that
the complaint filed by the 4th respondent is a forged one and a
petition is pending before the Secretary of Kayamkulam
Municipality. The Secretary of Kayamkulam Municipality is
directed to consider that also and take appropriate steps in
accordance to law. All the contention of the parties can be left
open and the parties can be allowed to agitate the matter
before the Secretary of Kayamkulam Municipality in
accordance to law.
W.P.(C).Nos.20072/20 & 26477/21
Therefore, these two writ petitions are disposed of in the
following manner:
1. Ext.P30 order is set aside.
2. The Secretary of Kayamkulam Municipality is
directed to reconsider the matter in the light
of the specific directions in Ext.P16 judgment
and also in the interim order dated 28.09.2020
in W.P.(C). No.20072 of 2020.
3. Before passing final orders, the Secretary of
Kayamkulam Municipality will hear the
petitioner and all affected parties. The
Secretary will pass appropriate orders in
accordance to law, as expeditiously as
possible, at any rate, within three months from
the date of receipt of a copy of this judgment.
4. The Secretary of Kayamkulam Municipality
will also take appropriate decision in the
complaint which is submitted by the petitioner
and the President of the Kudumbasree about
the alleged forgery committed by the 4 th
respondent and take appropriate steps, after
W.P.(C).Nos.20072/20 & 26477/21
giving an opportunity of hearing to the
petitioner and other affected parties including
the 4th respondent, within the above period
itself.
5. All the contention of the parties are left open
and the parties are free to agitate the matter
before the Secretary of Kayamkulam
Municipality in accordance to law.
Sd/-
P.V.KUNHIKRISHNAN
JV JUDGE
W.P.(C).Nos.20072/20 & 26477/21
APPENDIX OF WP(C) 20072/2020
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF
REGISTRATION DATED 16/8/2004 ISSUED BY
THE JOINT REGISTRAR OF CO-OPERATIVE
SOCIETIES.
EXHIBIT P2 TRUE COPY OF THE QUOTATION DATED
10/11/2008 INVITING APPLICATION BY THE
1ST RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE MINUTES DATED
29/1/2009 OF THE MUNICIPAL COUNCIL
MEETING OF THE 1ST RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 9/3/2009
ISSUED BY THE 2ND RESPONDENT ON THE
BASIS OF EXT.P4 DECISION.
EXHIBIT P5 TRUE COPY OF THE APPROVAL ORDER ALONG
WITH COVERING LETTER DATED 26/3/2010
ISSUED BY THE JOINT REGISTRAR CO-
OPERATIVE SOCIETIES, ALAPPUZHA.
EXHIBIT P6 TRUE COPY OF THE BOUCHER SHOWING SOME
OF THE ITEMS PRODUCED AT THE UNIT.
EXHIBIT P7 TRUE COPY OF THE SANCTION LETTER DATED
11/11/2014 ISSUED BY THE DISTRICT
INDUSTRIES CENTRE, ALAPPUZHA.
EXHIBIT P8 TRUE COPY OF THE LICENSE ISSUED UNDER
FSS ACT, 2006 FOR A PERIOD FROM
15/9/2017 TO 14/9/2018.
EXHIBIT P9 TRUE COPY THE LICENSE ISSUED FOR SODA
MANUFACTURING THE UNIT DURING THE
PERIOD 2017-18.
EXHIBIT P9(A) TRUE COPY OF THE LICENSE ISSUED FOR
FLOUR MILL UNIT DURING THE PERIOD
2017-18.
EXHIBIT P10 TRUE COPY OF THE RECEIPT DATED
6/3/2018 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P11 TRUE COPY OF THE ORDER NO.R4/9215/18
DATED 2/5/2018 ISSUED BY THE 2ND
RESPONDENT AND SERVED ON THE
PETITIONER ON 10/5/2018.
EXHIBIT P12 TRUE COPY OF THE MINUTES OF THE
COUNCIL MEETING HELD ON 31/3/2018.
W.P.(C).Nos.20072/20 & 26477/21
EXHIBIT P13 TRUE COPY OF THE SO CALLED APPLICATION
SUBMITTED BY THE CHAIR PERSON OF ADS
SMT.AMINA ON 8/11/2017.
EXHIBIT P14 TRUE COPY OF THE PETITION DATED
14/5/2018 SUBMITTED BY SMT.AMINA TO
THE 2ND RESPONDENT.
EXHIBIT P15 TRUE COPY OF THE STATEMENT GIVEN BY
SMT.AMINA BEFORE THE 2ND RESPONDENT ON
28/5/2018.
EXHIBIT P16 TRUE COPY OF THE JUDGMENT DATED
28/1/2020 IN W.P.(C) NO.16056/2018 OF
THIS HON'BLE COURT.
EXHIBIT P17 TRUE COPY OF THE NOTICE DATED
13/2/2020 ISSUED BY THE 2ND
RESPONDENT.
EXHIBIT P18 TRUE COPY OF THE NOTICE DATED
18/5/2020 ISSUED BY THE 2ND
RESPONDENT.
EXHIBIT P19 TRUE COPY OF THE STATEMENT DATED
25/5/2020 SUBMITTED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT.
EXHIBIT P20 TRUE COPY OF THE PLAINT IN OS
NO.194/2020 FILED BY THE PETITIONERS
AGAINST THE RESPONDENTS.
EXHIBIT P21 TRUE COPY OF THE NOTICE DATED 7/9/2020
ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P22 TRUE COPY OF THE MINUTES DATED
27/8/2020 OF THE OF THE 3RD RESPONDENT
COUNCIL.
W.P.(C).Nos.20072/20 & 26477/21
APPENDIX OF WP(C) 26477/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE CERTIFICATE OF
REGISTRATION DATED 16/8/2004 ISSUED BY
THE JOINT REGISTRAR OF CO-OPERATIVE
SOCIETIES.
Exhibit P2 TRUE COPY OF THE QUOTATION DATED
10/11/2008 INVITING APPLICATION BY THE
1ST RESPONDENT.
Exhibit P3 TRUE COPY OF THE MINUTES DATED
29/1/2009 OF THE MUNICIPAL COUNCIL
MEETING OF THE 1ST RESPONDENT.
Exhibit P4 TRUE COPY OF THE NOTICE DATED 9/3/2009
ISSUED BY THE 2ND RESPONDENT ON THE
BASIS OF EXT.P4 DECISION.
Exhibit P5 TRUE COPY OF THE APPROVAL ORDER ALONG
WITH COVERING LETTER DATED 26/3/2010
ISSUED BY THE JOINT REGISTRAR CO-
OPERATIVE SOCIETIES, ALAPPUZHA.
Exhibit P6 TRUE COPY OF THE BOUCHER SHOWING SOME
OF THE ITEMS PRODUCED AT THE UNIT.
Exhibit P7 TRUE COPY OF THE SANCTION LETTER DATED
11/11/2014 ISSUED BY THE DISTRICT
INDUSTRIES CENTRE, ALAPPUZHA.
Exhibit P8 TRUE COPY OF THE LICENSE ISSUED UNDER
FSS ACT, 2006 FOR A PERIOD FROM
15/9/2017 TO 14/9/2018.
Exhibit P9 TRUE COPY OF THE LICENSE ISSUED FOR
SODA MANUFACTURING THE UNIT DURING THE
PERIOD 2017-18.
Exhibit P9A TRUE COPY OF THE LICENSE ISSUED FOR
FLOUR MILL UNIT DURING THE PERIOD
2017-18.
Exhibit P10 TRUE COPY OF THE RECEIPT DATED
6/3/2018 ISSUED BY THE 1ST RESPONDENT.
Exhibit P11 TRUE COPY OF THE ORDER NO.R4/9215/2018
DATED 2/5/2018 ISSUED BY THE 2ND
RESPONDENT AND SERVED ON THE
PETITIONER ON 10/5/2018.
Exhibit P12 TRUE COPY OF THE MINUTES OF THE
COUNCIL MEETING HELD ON 31/3/2018.
W.P.(C).Nos.20072/20 & 26477/21
Exhibit P13 TRUE COPY OF THE SO CALLED APPLICATION
SUBMITTED BY THE CHAIR PERSON OF ADS
SMT.AMINA ON 8/11/2017.
Exhibit P14 TRUE COPY OF THE PETITION DATED
14/5/2018 SUBMITTED BY SMT.AMINA TO
THE 2ND RESPONDENT.
Exhibit P15 TRUE COPY OF THE STATEMENT GIVEN BY
SMT.AMINA BEFORE THE 2ND RESPONDENT ON
28/5/2018.
Exhibit P16 TRUE COPY OF THE JUDGMENT DATED
28/1/2020 IN WP(C) NO.16056/2018 OF
THIS HON'BLE COURT.
Exhibit P17 TRUE COPY OF THE NOTICE DATED
13/3/2020 ISSUED BY THE 2ND
RESPONDENT.
Exhibit P18 TRUE COPY OF THE NOTICE DATED
18/5/2020 ISSUED BY THE 2ND
RESPONDENT.
Exhibit P19 TRUE COPY OF THE STATEMENT DATED
25/5/2020 SUBMITTED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT.
Exhibit P20 TRUE COPY OF THE PLAINT IN OS
NO.194/2020 FILED BY THE PETITIONERS
AGAINST THE RESPONDENTS.
Exhibit P21 TRUE COPY OF THE NOTICE DATED 7/9/2020
ISSUED BY THE 2ND RESPONDENT.
Exhibit P22 TRUE COPY OF THE MINUTES DATED
27/8/2020 OF THE 3RD RESPONDENT
COUNCIL.
Exhibit P23 TRUE COPY OF THE INTERIM ORDER DATED
28/9/2020 IN WRIT PETITION BEARING
NO.20072/2020 OF THIS HON'BLE COURT.
Exhibit P24 TRUE COPY OF THE REPRESENTATION DATED
2/8/2021 SENT BY THE PETITIONER TO THE
HON'BLE CHIEF MINISTER.
Exhibit P25 TRUE COPY OF THE ACKNOWLEDGMENT CARD
DATED 3/8/2021 SHOWING THE RECEIPT OF
EXT.P24 AT THE OFFICE OF THE HON'BLE
CHIEF MINISTER.
Exhibit P26 TRUE COPY OF THE NOTICE DATED 3/9/2021
ISSUED BY THE DISTRICT INDUSTRIES
CENTRE INVITING THE PETITIONER FOR THE
ADALATH HELD ON 9/9/2021.
W.P.(C).Nos.20072/20 & 26477/21
Exhibit P27 TRUE COPY OF THE REPRESENTATION
SUBMITTED BY THE PRESIDENT OF THE
PETITIONER BEFORE THE HON'BLE MINISTER
ON 9/9/2021.
Exhibit P28 TRUE COPY OF THE LETTER DATED 14/9/201
SENT BY THE DISTRICT INDUSTRIES
OFFICER, ALAPPUZHA TO THE PETITIONER.
Exhibit P29 TRUE COPY OF THE STATEMENT GIVEN BY
THE PRESIDENT AND SECRETARY OF THE
PETITIONER ON 1/9/2021 BEFORE THE 2ND
RESPONDENT.
Exhibit P30 TRUE COPY OF THE NOTICE DATED
11/10/2021 ISSUED BY THE 2ND
RESPONDENT.
