Sadhiya vs Aluva Municipal Corporation
2023 Latest Caselaw 350 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 11TH DAY OF JANUARY 2023 / 21ST POUSHA, 1944
                     WP(C) NO. 160 OF 2023
PETITIONER:

         SADHIYA
         AGED 26 YEARS
         D/O.SAKEER HUSSAIN,, KARAYIKUDATH HOUSE,
         U.C.COLLEGE P.O., ALUVA WEST VILLAGE,
         ALUVA TALUK, ERNAKULAM DISTRICT, PIN - 683102

         BY ADVS.
         P.M.ZIRAJ
         IRFAN ZIRAJ


RESPONDENTS:

    1    ALUVA MUNICIPAL CORPORATION
         MUNICIPAL COMPLEX, ALUVA, ERNAKULAM DISTRICT,
         REPRESENTED BY ITS SECRETARY, PIN - 683101
    2    THE SECRETARY
         ALUVA MUNICIPAL CORPORATION, MUNICIPAL COMPLEX,
         ALUVA, ERNAKULAM DISTRICT, PIN - 683101

         BY ADVS.
         SRI.V.M.KURIAN, SC, ALUVA MUNICIPALITY
         K T THOMAS
         MATHEW BOB KURIAN(K/381/1991)


     THIS WRIT PETITION       (CIVIL) HAVING COME UP     FOR
ADMISSION ON 11.01.2023,      THE COURT ON THE SAME      DAY
DELIVERED THE FOLLOWING:
 WP(C) No.160 of 2023

                               2




                           JUDGMENT

Dated this the 11th day of January, 2023

The petitioner is before this Court aggrieved by Ext.P8

order terminating the contract given to her for collection of

parking fee.

2. The petitioner states that she is an unemployed

youth and she was granted right to collect parking fee from

the underground of the flyover and Metro Rail commencing

from Aluva Metro Station to Pulinchuvadu Junction, Aluva for

a period from 01.04.2022 to 31.03.2023. The petitioner

remitted ₹1,00,999/- along with GST towards the licence fee

to collect parking fee.

3. The petitioner states that she was issued with a

notice alleging that she has violated the auction conditions, by

permitting Lorry parking and collecting fee for the same in the

restricted area. The petitioner was directed to submit show-

cause, if any, in the subject matter.

WP(C) No.160 of 2023

4. The petitioner submits that the allegations are

entirely incorrect. The petitioner submitted a reply. The

petitioner points out that there was parking of Autorickshaws

and Vans authorised by the Municipality. When such

authorised parking is functioning there, the petitioner cannot

prevent them. In spite of that, the respondents issued Ext.P6

notice dated 27.09.2022. The petitioner submitted reply to

Ext.P6 as per Ext.P7. Contract with the petitioner stands

terminated as per Ext.P8 order dated 28.12.2022.

5. The petitioner would submit that Ext.P8 order is a

non-speaking order and it has been passed without giving an

opportunity of hearing to the petitioner. The respondents

ought to have considered that the area, which is allotted to the

petitioner, is in front of Aluva Market. It is impossible to

prevent the entry of Lorries inside the Market. So, usually

Lorries will park in the places which are available nearby. The

Trade Unions in the area are helping the Lorry drivers. The

petitioner has not collected any amount from such Lorries.

There are authorised street vendors also in the area. The WP(C) No.160 of 2023

respondents ought to have considered the existence of three

permitted Auto Stands in the space allotted to the petitioner.

Vast area is being occupied by the Autorickshaws. In the

circumstances, termination of the contract is illegal and

unsustainable, contended the petitioner.

6. Standing Counsel entered appearance on behalf of

the Municipality. The Standing Counsel submitted that it was

found that the petitioner is permitting Lorries and Vans to park

in the area. Repeated notices were given to the petitioner.

The petitioner, however, did not take any preventive steps.

The petitioner was required to provide the number of the

Lorries being unauthorisedly parked in the area. The petitioner

failed to do that also. It was in such circumstances that the

contract with the petitioner was terminated on 28.12.2022.

7. I have heard the learned counsel for the petitioner

and the learned Standing Counsel for the respondents.

8. The specific reason for terminating the contract

entered into by the Municipality with the petitioner is that the

petitioner has been permitting Lorries and Vans and other big WP(C) No.160 of 2023

vehicles to be parked in the area, where the parking was

confined to smaller vehicles. The petitioner has been levying

fees from such bigger vehicles like lorries and vans. Apart

from that, the petitioner has been permitting unauthorised

street vending in the areas for monetary gain.

9. It is seen from the pleadings in the writ petition that

the petitioner was initially issued with Ext.P2 notice as early

on 30.04.2022. It was pointed out that the petitioner's action

in permitting Lorries and Mini Lorries to be parked in the area

cannot be permitted. That is a violation of contract conditions.

The petitioner submitted Ext.P4 reply. It is to be noted that in

Ext.P4 reply, the petitioner has specifically stated that she

does not have enough staff to levy fees from those vehicles

being parked from 8.00 p.m. to 4.00 a.m.

10. Thereafter, Annexure R1(a) Notice was issued by

the Municipality. The petitioner was cautioned about the

unauthorised parking permitted in the area. Again, the

petitioner was issued with Ext.P6 notice. The petitioner was

required to give explanation as regards the unauthorised WP(C) No.160 of 2023

street vending being carried out in the area. Ext.P7 is the

reply given by the petitioner. Ext.P7 is not a satisfactory reply

to Ext.P6 notice. It was in such circumstances that the

Municipal authorities were forced to terminate the contract

with the petitioner as per Ext.P8. I do not find any reason to

interfere with Ext.P8 order.

11. The petitioner would submit that an opportunity of

personal hearing was not extended to the petitioner. But, the

pleadings would show that repeated notices were given to the

petitioner and the petitioner had submitted reply to such

notices.

12. Counsel for the petitioner would submit that in one

of the replies, the petitioner had given the numbers of the

Lorries, which were unauthorisedly parked in the area.

However, the fact remains that the petitioner was not in a

position to prevent unauthorised parking of larger vehicles in

the areas allotted to her. Unauthorised street vending also

was rampant in the area. It is an admitted position that the

petitioner was not in a position to deploy sufficient staff during WP(C) No.160 of 2023

night hours.

For all the above reasons, I do not find any illegality in

Ext.P8. Consequently, Ext.P9 Notification cannot be interfered

with. The writ petition is accordingly dismissed. This will be

without prejudice to the right, if any, of the petitioner to

negotiate for refund of any amount, if the petitioner is

otherwise eligible.

Sd/-

N.NAGARESH JUDGE spk WP(C) No.160 of 2023

APPENDIX OF WP(C) 160/2023

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE AGREEMENT SIGNED BY THE PETITIONER AND HANDOVER TO THE SECOND RESPONDENT WITHOUT DATE Exhibit P2 TRUE COPY OF THE NOTICE DATED 30.04.2022 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER Exhibit P3 TRUE PHOTOGRAPHS OF THE LORRIES AND AUTORIKSHAW PARKING IN THE PARKING AREA ALLOTTED TO THE PETITIONER UNDER THE LEADERSHIP OF CITU AND BMS UNION ALONG WITH PHOTOGRAPHS OF NO PARKING BOARD FIXED BY THE PETITIONER Exhibit P4 TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER DATED 12.05.2022 BEFORE THE FIRST RESPONDENT Exhibit P5 TRUE COPY OF THE RECEIPT ISSUED FROM THE OFFICE OF FIRST RESPONDENT DATED 12.05.2022 REGARDING RECEIPT OF REPLY Exhibit P6 TRUE COPY OF THE NOTICE DATED 27.09.2022 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER Exhibit P7 TRUE COPY OF THE REPLY DATED 11.10.2022 ISSUED BY THE PETITIONER TO THE SECOND RESPONDENT Exhibit P8 TRUE COPY OF THE ORDER DATED 28.12.2022 ISSUED BY THE SECOND RESPONDENT Exhibit P9 TRUE COPY OF THE RE-TENDER NOTICE DATED 29.12.2022 ISSUED BY THE SECOND RESPONDENT RESPONDENT ANNEXURES ANNEXURE-R1(A): TRUE COPY OF THE NOTICE DATED 23.05.2022 ISSUED BY THE MUNICIPALITY