Kerala High Court
K.Sreekumar vs Corporation Of Kollam on 10 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE S.MANU
MONDAY, THE 10TH DAY OF JUNE 2024 / 20TH JYAISHTA, 1946
WP(C) NO. 13710 OF 2017
PETITIONERS:
1 K.SREEKUMAR
AGED 65 YEARS, S/O LATE KRISHNAN PROPRIETOR OF
MEENUS ELECTRICAL SUPER MARKET, CHINNAKADA,
KOLLAM.
2 RAJU
THAZHETHODIYIL, KANJAVELI P.O., KOLLAM.
BY ADVS.
SRI.K.B.PRADEEP
SMT.J.HARIPRIYA
RESPONDENTS:
1 KOLLAM MUNICIPAL CORPORATION
REPRESENTED BY ITS SECRETARY, KOLLAM, PIN:691001.
2 FINANCE STANDING COMMITTEE OF KOLLAM MUNICIPAL
CORPORATION
PIN:691001, REPRESENTED BY ITS CHAIRMAN.
BY ADVS.
SRI.M.K.CHANDRA MOHAN DAS,SC,KOLLAM MPT
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR HEARING
ON 10.06.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C).No.13710 of 2017
2
S. MANU, J.
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W.P.(C)No.13710 of 2017
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Dated this the 10th day of June, 2024
JUDGMENT
The petitioners are challenging Ext.P4 proceedings in this
writ petition. Ext.P4 is a notice issued to them by the Secretary
of Kollam Municipal Corporation demanding arrears of rent with
respect to shop rooms which were occupied by the petitioners.
2. The 1st respondent/Corporation constructed a
shopping complex at Andamukkam. Auction was conducted for
letting out rooms on 14.8.2002. The 1st petitioner obtained the
right to use shop rooms 9 to 15 in the auction. The 2nd petitioner
obtained room No.17. Both of them paid six months license fee
in advance and executed agreements with the Corporation and
received keys of the rooms.
3. After occupying the rooms, according to the
petitioners, they found themselves in great difficulties as no
electricity or water connection were available. Therefore, the
rooms could not be utilized for want of basic amenities. On
15.1.2004, the 2nd respondent issued a demand notice to the
petitioners for remitting the license fee along with penal interest
from April, 2003 onwards. The 1 st petitioner submitted a
detailed representation to the 2nd respondent pointing out that
the rooms were not used due to lack of basic amenties and
therefore the license fee was not liable to be paid. On
25.6.2004, another notice was issued by the 2 nd respondent
calling upon to pay the arrears within three days. The
petitioners approached this Court in W.P.(C)No.21099/2004. In
terms of the interim order dated 19.7.2004 issued by this Court
the 1st petitioner remitted Rs.1,00,000/- (Rupees One lakh only)
and later in order to avail statutory remedy under Section 509(1)
of the Municipalities Act, the writ petition was withdrawn.
4. Finding in difficult to use the rooms without basic
amenties, the petitioners claimed to have surrendered the rooms
in the year 2005. Ext.P1 is produced to show that they
surrendered the rooms. The petitioners are stating that the
officers refused to accept the keys from them.
5. After disposal of W.P.(C)No.21099/2004 appeal under
Section 509(1) was presented and the same was rejected by the
Finance Standing Committee of the 1st respondent. Order of the
committee was challenged in Revision Petition No.90/2012
before the Tribunal for Local Self Government Institutions
(hereinafter referred to as 'the Tribunal'). By Ext.P2 order the
Tribunal allowed the appeal and directed the Corporation Council
to consider the contentions of the petitioners. The Tribunal
specifically directed the Council to consider the contentions
independently without delegating or authorising any of the
standing committees to hear the same and to take an
independent decision. Time limit of two months was also fixed.
On 09.01.2014, the Council dismissed the appeal without
hearing the petitioners and the 2nd respondent issued a notice
demanding arrears upto January, 2014 to the tune of
Rs.39,91,089/-(Rupees Thirty nine lakhs ninety one thousand
and eighty nine only).
6. The petitioners again approached the Tribunal in
Revision Petition No.33/2014 aggrieved by the rejection of the
appeal by the Council. The Tribunal disposed the revision on
21.11.2016 by Ext.P3 order. The operative portion of Ext.P3 is
extracted for ready reference:-
"In the result, the revision petition is allowed. The
impugned decision and the consequential notice are
hereby set aside. The Secretary is directed to place
the matter before the very next meeting of the
Council for its consideration with a specific note
reminding them to dispose of the matter by
themselves, without delegating their statutory
function to any other Committee. The council has to
resolve the disputed question which is emphasized
above. It is further declared that any deviation of the
aforesaid direction would be viewed very seriously
and the persons responsible for such omission will be
personally dealt with accordingly. Considering the
extraordinary delay caused in disposing of the matter
and also the quantity of the amount involved in this
case, the Corporation Council is directed to take a
decision within a period of two months, alter
affording an opportunity of hearing to the
petitioners."
7. The petitioners submit that, in total disregard to the
directions issued by the Tribunal in Ext.P3, the appeal was not
properly considered and no decision taken by the Council has
been communicated yet to them. It is their specific case that the
Council was bound to provide opportunity of hearing to them and
to take a decision within a period of two months in compliance
with the direction contained in Ext.P3 order of the Tribunal. They
pointed out that Ext.P4 notice was issued without issuing them a
copy of the decision taken in the matter by the Council.
Referring to Ext.P4 they submitted that a hearing was conducted
by the Mayor and the said procedure is illegal as the specific
direction issued by the Tribunal was to the Council. Hence, they
contended that Ext.P4 is liable to be set aside for the reason that
it has been issued without a proper hearing and communicating
the decision of the Council to the petitioners. Learned counsel
for the petitioners referred to the provisions of Section 509 of
the Kerala Municipality Act and argued that the powers vested
with the Chairman under Section 509 is limited and specifically
mentioned. No provision in Section 509 authorises the Chairman
to hear the appeals preferred to the Council other than for the
purpose of granting stay. He, therefore, submits that, in view of
the direction issued by the Tribunal, the Corporation Council
should have provided the opportunity of hearing and the hearing
provided by the Chairman does not satisfy the specific direction
issued by the Tribunal.
8. The 1st respondent filed counter affidavit and
produced the agreement between the petitioners and the
Corporation. According to the Corporation, the case of the
petitioners that the rooms could not be occupied for want of
basic amenities is incorrect. Corporation had waived license fee
for a short period upto the installation of new power transformer
near the Corporation building. There was huge demand for the
rooms in the shopping complex and failure of the petitioners to
utilize the rooms let out to them need not prevent the
Corporation from demanding rent as per the terms of the
agreement. Corporation maintains that the demands raised by it
is strictly in accordance with the terms of the agreement and the
attempt of the petitioners is to evade payment. The contention
of the petitioners that the demand is barred by limitation is also
specifically denied by the Corporation. The Corporation also
submits that the petitioners are occupying the rooms breaching
the terms and conditions of the agreement.
9. I have heard the respective counsel for the parties
and perused the pleadings.
10. I don't find it necessary to enter into the factual
controversies involved in this case. There are disputes regarding
surrender of the room, etc. Apart from the factual disputes
involved, it is to be noted that the matter was considered by the
statutory Tribunal on two occasions. In the second occasion the
matter was remitted to the Corporation Council with a specific
direction to consider the matter afresh, afford an opportunity of
hearing to the petitioners and to take a decision within a period
of two months. The Tribunal, taking note of the improper
approach of the Municipal Council, in disregard to its earlier
order, warned in Ext.P3 that any deviation from the directions
issued by it will be viewed seriously and persons responsible for
such omission will be dealt with accordingly. In spite of such a
stern warning issued by the Tribunal, the Corporation Council did
not provide any opportunity of hearing to the petitioners. The
averment of the petitioners that no decision of the Corporation
Council was conveyed to them is not denied in the counter
affidavit. It appears that the Mayor provided an opportunity of
hearing. The fact remains that the specific direction of the
Tribunal was to the Corporation Council to conduct the hearing.
Hence, it is clear that even on the second occasion the
Corporation Council did not act in accordance with the directions
issued by the statutory Tribunal. Therefore, I am of the view
that Ext.P4 is liable to be set aside as the demand has been
raised without conducting a proper hearing as directed by the
Tribunal and without communicating outcome to the petitioners.
The practice adopted by the Corporation Council is liable to be
deprecated.
I, therefore, allow this writ petition. Ext.P4 demand shall
stand quashed. The Corporation Council shall consider the issue
afresh with notice to the petitioners. They shall be provided an
opportunity of hearing by the Corporation Council within a period
of two months. A fresh decision shall be taken by the Council
and the same shall be communicated to the petitioners within a
period of one month from the date of hearing. Till a fresh
decision is taken and is communicated to the petitioners the
interim stay granted by this Court in the above writ petition shall
remain in force.
Sd/-
S.MANU,
JUDGE
skj
APPENDIX OF WP(C) 13710/2017
PETITIONERS' EXHIBITS
EXHIBIT P1; TRUE COPY OF REQUEST LETTER DATED
23.5.2005 ISSUED BY THE PETITIONERS TO
THE IST RESPONDENT.
EXHIBIT P2: TRUE COPY OF THE ORDER DATED 20.2.2013
OF TRIBUNAL FOR LOCAL SELF GOVERNMENT
INSTITUION IN REVISION PETITION
NO.90/2012.
EXHIBIT P3: TRUE COPY OF THE ORDER DATED 21.11.2016
OF TRIBUNAL FOR LOCAL SELF GOVERNMENT
INSTITUTION IN REVISION PETITION
NO.33/2014.
EXHIBIT P4: TRUE COPY OF THE NOTICE
NO.R11/R10/14381/11 DATED 27.2.2017.
