Kerala High Court
Don Bosco vs The Kozhikode Municipal ... on 4 March, 2022
W.P.(C).No.2374/22
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
FRIDAY, THE 4TH DAY OF MARCH 2022 / 13TH PHALGUNA, 1943
WP(C) NO. 2374 OF 2022
PETITIONER:
DON BOSCO
AGED 56 YEARS
S/O HILARIYOS, PONNAMATTAM HOUSE, ULLAS NAGAR
HOUSING COLONY, KUTHIRAVATTAM P.O., KOZHIKODE -
673 016., PIN - 673016
BY ADVS.
NIRMAL.S
VEENA HARI
RIA ELIZABETH JOSEPH
IRENE ELZA SOJI
K. REMIYA RAMACHANDRAN
RESPONDENTS:
1 THE KOZHIKODE MUNICIPAL CORPORATION REP. BY ITS
SECRETARY
CORPORATION OFFICE, BEACH ROAD, NEAR AKASHVANI,
KOZHIKODE- 673 032., PIN - 673032
2 THE DEPUTY SECRETARY
KOZHIKODE MUNICIPAL CORPORATION OFFICE, BEACH
ROAD, NEAR AKASHVANI, KOZHIKODE- 673 032., PIN -
673032
3 FAZALU RAHIMAN
S/O MUHAMMED,PUNATHINGAL ﾝ, KUNNATHUPALAM,
GURUVAYOORAPPAN COLLEGE P.O., KOZHIKODE - 673014.,
BY ADV G.SANTHOSH KUMAR (P).
W.P.(C).No.2374/22
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OTHER PRESENT:
SMT VINEETHA B , SR GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 25.02.2022, THE COURT ON 04.03.2022 DELIVERED
THE FOLLOWING:
W.P.(C).No.2374/22
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ANU SIVARAMAN, J.
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W.P.(c).No.2374 of 2022
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Dated this the 4th day of March, 2022
JUDGMENT
1. This writ petition is filed seeking the following reliefs:-
"a) Issue a writ of certiorari calling for the records leading to Ext.P9
notice,and to quash the original of the same.
b) Issue a writ of mandamus directing the respondents 1 & 2 not to
terminate the license agreement entered between the petitioner and
the 1st respondent Corporation and to permit continued occupation of
the licensed premises.
c) Issue a writ of mandamus directing the respondents 1 & 2 to issue
a final calculation statement after giving credit to the payment made
by the petitioner.
d) Issue a writ of mandamus directing the respondents 1 & 2 to
consider and pass orders on Ext.P5 & Ext.P8 representations after
affording an opportunity of hearing the petitioner, in a time bound
manner.
e) Issue a writ of mandamus directing the respondent corporation to
permit the petitioner to repay the licence fee arrears in 20 equal
monthly installments."
2. Heard the learned counsel for the petitioner, the learned
Government Pleader and the learned Standing Counsel
appearing for the respondent Corporation.
W.P.(C).No.2374/22
3. It is submitted by the learned counsel for the petitioner that
the petitioner was conducting a computer service centre in
Room No.2/6 of Jayanthi Building owned by the respondent
Corporation for the past twenty five years. It is submitted
that due to the outbreak of Covid 19, the petitioner had to
close down his shop several times during the past two years. It
is submitted that he also had to undergo treatment for cancer
and that he was unable to pay off the licence fees in respect of
the property in full. It is submitted that substantial payments
were, however, made by the petitioner in spite of the difficult
situation. It is submitted that by Exhibit P3, the respondent
Corporation had given the petitioner notice stating that there
are some unauthorised constructions made in the premises
and that the same should be removed. Thereafter, by Exhibit
P6 proceedings dated 15.12.2021, the premises had been
locked and sealed by the Corporation and the petitioner has
not been able to conduct his shop thereafter.
4. The petitioner submitted Exhibit P8 representation before the
Secretary and Mayor of the Corporation pointing out the
W.P.(C).No.2374/22
reasons for his inability to pay the rent of the building in full
and sought some time for such payment. He had also sought
remission in the rent in view of the pandemic and had sought
some time to pay off the amounts due. Exhibit P9 demand
notice had thereafter been issued, requiring payment of an
amount of Rs.4,04,050/-.
5. The learned counsel for the petitioner submits that the
petitioner is ready and willing to make the payments less the
remissions that are liable to be granted on account of the
covid pandemic. However, he submits that he would be
completely unable to make the payments if he is not put back
in possession of the shop room. He contends that Section
215(9) and (10) of the Kerala Municipalities Act, 1994
specifically provide that when premises are locked for want of
payment of rent, once the overdue amounts are paid, licencee
is liable to put back in possession of the premises. It is
contended that the petitioner is ready and willing to make
some payments towards the admitted arrears of rent and that
he may be put back in possession of the premises so that he
W.P.(C).No.2374/22
can remit the further amounts in installments while continuing
to make the payments of the prospective rent.
6. A statement has been placed on record by the Corporation. It
is the specific case of the Corporation that the period of
licence of the petitioner expired on 31.3.2020 and that the
provisions of Section 215 (9) and (10) are therefore
inapplicable to the situation at hand. It is submitted that the
petitioner had remitted an amount of Rs.1,39,613/- as licence
fee along with penalty for the period May 2019 to January
2020. Thereafter, he had remitted only an amount of
Rs.61,500/- when huge arrears were pending. It is stated that
it is only because the petitioner had failed to remit any licence
fee, in spite of the expiry of the period of licence, that the
Corporation was forced to lock the premises. It is submitted
that the petitioner can seek to be put back in possession of the
premises, only if he pays the entire amounts due after
remissions, as granted to other licencees, and on making an
application for a fresh licence which would be duly considered
by the Council of the Corporation.
W.P.(C).No.2374/22
7. It is not disputed by the petitioner that the period of the
licence had expired in March, 2020. However, the learned
counsel for the petitioner submits that in case of other
similarly situated persons, the respondents had granted
remission of rent and had also permitted them to continue in
occupation on the basis of orders of this Court without placing
any pleading on record and without clearing the arrears.
8. I have considered the contentions advanced. It is an admitted
case that the petitioner is not in possession of the building in
question. It is also not in dispute that the period of licence has
expired. The learned counsel for the petitioner submits that
the petitioner had valid reasons for not paying the rent in
time, which is liable to be considered by the Corporation.
However, the demand of the petitioner that he is liable to be
put back in possession of the premises without clearing the
dues is not a matter to be considered by this Court, since the
Corporation contends that such relief cannot be granted in
view of the admitted dues.
W.P.(C).No.2374/22
9. In the above view of the matter, since the petitioner has
approached the respondents with Exhibit P8 representation,
the same is liable to be considered in accordance with law.
The respondent Corporation shall also consider whether any
remissions or installments are liable to be granted to the
petitioner on account of the reasons stated by the petitioner.
The contention of the petitioner that he is liable to be put back
in possession of the premises since similarly situated persons
are continuing in possession shall also be considered by the
Corporation. Orders shall be passed after hearing the
petitioner also and after considering his contentions, within a
period of one month from the date of receipt of a copy of this
judgment.
Sd/-
Anu Sivaraman, Judge
sj
W.P.(C).No.2374/22
APPENDIX OF WP(C) 2374/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE RECEIPT DATED
29/01/2020 EVIDENCING PAYMENT TOWARDS
LICENSE FEE AND ARREARS.
Exhibit P2 TRUE COPY OF THE NOTICE
NO.A32(A)/10578/89 DATED 27/10/2020
ISSUED BY THE 2ND RESPONDENT.
Exhibit P3 TRUE COPY OF THE LETTER
NO.A32(A)/10578/89 DATED 03.02.2021
ISSUED BY THE 2ND RESPONDENT.
Exhibit P4 TRUE COPY OF THE MEDICAL CERTIFICATE OF
THE PETITIONER DATED 30.08.2021 ISSUED
BY ASSOCIATE CONSULTANT, DEPT. OF
MEDICAL ONCOLOGY, MEITRA HOSPITAL.
Exhibit P5 TRUE COPY OF THE REPRESENTATION DATED
04/10/2021 PREFERRED TO THE RESPONDENT
CORPORATION.
Exhibit P6 TRUE COPY OF THE NOTICE DATED 15/12/2021
EVIDENCING INTERIM SEIZURE AND CLOSURE
OF THE ROOM ALLOTTED TO THE PETITIONER.
Exhibit P7 TRUE COPY. OF THE PHOTOGRAPH
Exhibit P8 TRUE COPY OF THE REPRESENTATION
PREFERRED BEFORE THE RESPONDENT
CORPORATION.
Exhibit P9 TRUE COPY OF THE NOTICE
NO.A.32(A)/10578/89 DATED 06/01/2022
ISSUED BY THE RESPONDENT CORPORATION
True copy
PS to Judge
