Kerala High Court
Shareef .K.K vs Kattappana Municipality on 19 July, 2022
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 19TH DAY OF JULY 2022 / 28TH ASHADHA, 1944
WP(C) NO. 7284 OF 2022
PETITIONER
SHAREEF .K.K
AGED 42 YEARS
S/O MOHAMMED KOYA, KOZHIYOD HOUSE, KALLURUTTY P
O, THOTTAPPURAM, IDUKKI-685562.
BY ADV S.SUJIN
RESPONDENTS
1 KATTAPPANA MUNICIPALITY
REPRESENTED BY ITS SECRETARY, KATTAPPANA,
IDUKKI-685515.
2 SECRETARY
KATTAPPANA MUNICIPALITY, KATTAPPANA, IDUKKI-
685515.
3 SHINTUMON
AGED 37 YEARS
S/O MATHEW, THENMANAL HOUSE, PERUMTHOTTY,
VATHIKUDY, IDUKKI-685515.
4 SOBIN KURIAN
AGED 34 YEARS
S/O KURIAN, KALAPPURAKKAL HOUSE,
THANKAMANI P O, NEELIVAYAL-685609.
BY ADV SHRI.UNNIKRISHNAN.V.ALAPATT, SC,
KATTAPPANA MUNICIPALITY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 19.07.2022, ALONG WITH WP(C).13482/2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(C) Nos. 7284 and 13482 of
2022 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 19TH DAY OF JULY 2022 / 28TH ASHADHA, 1944
WP(C) NO. 13482 OF 2022
PETITIONER
ROY MATHEW,
AGED 48 YEARS
S/O.MATHAI, RESIDING AT NARAMANGALATH,
THOPRAMKUDY P.O., THOPRAMKUDY, VATHIKUDY,
IDUKKI, KERALA, PIN-685 515.
BY ADV M.NARENDRA KUMAR
RESPONDENTS
1 KATTAPPANA MUNICIPALITY,
REPRESENTED BY ITS SECRETARY, KATTAPPANA P.O.,
IDUKKY DISTRICT, PIN-685 508.
2 SHINTOMON,
AGED 37 YEARS
S/O.MATHEW, THENMANAL HOUSE, PERUMTHOTTY,
VATHIKUDY, IDUKKI-685 515.
BY ADV UNNIKRISHNAN.V.ALAPATT
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 19.07.2022, ALONG WITH WP(C).7284/2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(C) Nos. 7284 and 13482 of
2022 3
JUDGMENT
Dated this the 19th day of July, 2022 (W.P(C) Nos. 7284 and 13482 of 2022) The petitioners in both these writ petitions are aggrieved by the extension of licence granted to the existing licencees of Kattappana Municipality who have been running slaughter house and meat stall.
2. The petitioner in W.P(C) No.7284 of 2022 submits that he is a resident of Ward No.1 of Kattappana Municipality, Idukki District. The petitioner in W.P(C) No.13482 of 2022 is a person engaged in the business of vending meat in various places including Kattappana in Idukki District. Both the petitioners challenged the Minutes of Kattapana Municipality in respect of the Municipal Council Meeting held on 18.02.2022.
3. For the purpose of convenience, Exhibits are referred to in this judgment as they are marked in W.P(C) Nos. 7284 and 13482 of 2022 4 W.P(C) No.7284 of 2022.
4. According to the petitioners, there is a slaughter house and a meat stall owned by the 1 st respondent- Municipality. Both the meat stall and the slaughter house were being auctioned from time to time. For the year 2021-2022, respondents 3 and 4 in W.P(C) No.7284 of 2022 were granted licence to run the meat stall and slaughter house. By the time the period of the said licence came to an end, a number of other persons who were interested in running meat stall and slaughter house, gave their offers to Kattappana Municipality.
5. The petitioners state that the Municipal authorities, in fact, wanted to auction the meat stall and slaughter house and therefore an Agenda was included in the Council Meeting scheduled to be held on 18.02.2022. The Agenda was confined to fixing of date of auction of licences for the year 2022-2023. However, the Municipal Council illegally went beyond the Agenda and decided to grant extension to W.P(C) Nos. 7284 and 13482 of 2022 5 the existing licensees of meat stall and slaughter house. The said Minutes is under challenge in these writ petitions.
6. The Senior Counsel assisted by the counsel for the petitioner in W.P(C) No.7284 of 2022 urged that the conduct of the Municipal authorities in granting licence to the existing licensees without an open tender, is highly illegal and arbitrary. In fact, there were offers upto 50% above the existing rate of licence fee. The existing licensees offered an enhancement of 11% only. The Municipal authorities, however, proceeded to grant extension of licence to the existing licensees with an enhancement of 10%, which was less than the amount offered by them.
7. The Senior Counsel urged that though the Panchayat authorities may have a discretion in opting for extension of existing licence without floating new tenders, when an existing licence is extended, the offer of the existing licensee must be able to match the highest offer from other persons.
W.P(C) Nos. 7284 and 13482 of 2022 6
8. The counsel for the petitioner in W.P.(C) No.13482 of 2022 pointed out that the extension of the licence period was not included as an Agenda in the Municipal Council Meeting held on 18.02.2022. The conduct of the Municipal authorities in extending the licence of the existing licensees without there having an Agenda, offends the judgment of this Court in Manojkumar K.M and others v. Joint Registrar of Co- operative Societies (General), Kannur and another [2018 (1) KHC 717].
9. The counsel for the petitioners pointed out that others had offered a 15% enhancement from the existing licence fee for obtaining the licence of the Municipality. That was not considered and the licence was granted to the existing licensees, who offered only 10% enhancement. It was further urged on behalf of the petitioners that the public auction should be the rule in granting State largesse. Auction should be the rule and for grant of extension, there should be W.P(C) Nos. 7284 and 13482 of 2022 7 enabling provisions in the Municipalities Act or the Rules made thereunder.
10. The counsel for the petitioners pointed out that the Honourable Apex Court has considered the issue of distribution of State largesse in Elektron Lighting Systems Private Limited and another v. Shah Investments Financial Developments and Consultants Private Limited and others [(2015) 15 SCC 137] and held that award of contract without inviting tenders is unjustifiable. A statutory body and instrumentality of State should act fairly by making the State largesse open to all eligible citizens to submit their offers.
11. The counsel also relied on the judgment of the Apex Court in Indian Oil Corporation Limited and others v. Shashi Prabha Shukla and another [(2018) 12 SCC 85] to contend that the power of public authorities are essentially different from private persons. A man making his will may subject to any rights of his dependants, dispose of his W.P(C) Nos. 7284 and 13482 of 2022 8 property just as he may wish. But, a public authority can exercise its powers only reasonably and in good faith and upon lawful and relevant grounds of public interest. In the present case, when there were offers for obtaining licence with an enhancement of 15% of the existing fee, the Municipal authorities committed a grave error in extending the existing licensees for a far lesser fee. The action of the Municipal authorities is not in public interest.
12. The Standing Counsel entered appearance on behalf of the Municipal authorities and resisted the writ petition. The Standing Counsel pointed out that during the year 2020-2021, the then existing licencees did not make prompt payment of licence fees alleging Covid-19 pandemic. A large number of litigations were initiated before this Court and before other authorities, for waiver of licence fees and extension of licence period, on the ground of Covid-19 pandemic. As many as six writ petitions were pending in this Court. With great difficulties, the Municipal authorities could W.P(C) Nos. 7284 and 13482 of 2022 9 put the meat stall and slaughter house for auction. The existing licencees were paying the licence fees promptly.
13. The contractual relationship between the Municipal authorities and existing authorities were ordinal. Taking into consideration the circumstances of the case, the Municipal authorities decided that the existing licensees should be granted enlargement of licence period. It was in such circumstances that the licence period was extended with an enhancement of 10% licence fees. The said 10% enhancement is just and reasonable, contends the Standing Counsel for the respondents.
14. Relying on the judgment of this Court in Marykutty George v. State of Kerala [2005 (2) KLT 515], the Standing Counsel submitted that a public authority like the Panchayat is entitled to decide whether or not on the expiry of the lease, in the absence of any clause contained in the grant, extension should be given and if so, whether it should be subject to any enhancement of rate of rent or licence fee, in W.P(C) Nos. 7284 and 13482 of 2022 10 the best interest of the Panchayat.
15. The Standing Counsel urged that the Panchayat alone has to take a decision as the building belongs to them and what is best in the circumstances is not for the Court to decide.
16. I have heard the learned counsel for the petitioners and the learned Standing Counsel representing the respondents.
17. The grievance of the petitioners is against the extension of licence period granted to the existing licensees of a meat stall and slaughter house under the respondent- Municipal Council. Ext.P7 Minutes of the Municipal Council Meeting held on 18.02.2022 would indicate that the Municipal Council has considered offers made by persons, for getting the licences for running the meat stall, slaughter house, comfort station, etc. of the Municipal Council. Ext.P7 Minutes would show that there were persons who have offered upto 16% enhancement than the licence fee of the previous year. W.P(C) Nos. 7284 and 13482 of 2022 11 Ext.P7 Minutes would further show that the Municipal Council considered the eligibility, qualification and experience of all such persons who made their offers.
18. The Municipal Council was of the opinion that the existing licensees in respect of meat stall and slaughter house have been running the business without damaging the Municipal buildings and without giving right to any complaints from any quarters.
19. Taking into consideration the entire facts of the case, the Municipal Council decided to extend the period of existing licences issued to the licensees of the meat stall and slaughter house for a further period of one year with an enhancement of 10% in the licence fee.
20. Ordinarily, when a meat stall, slaughter house or any other licences under a Local Self Government authority is to be given to parties, auction will be the best course. Auctioning the stalls will be in the public interest also. However, when the stalls are licensed and the Municipal W.P(C) Nos. 7284 and 13482 of 2022 12 authorities find that the conduct of the business activity by the existing licensees is acceptable to the Municipal authorities and the general public, there is no embargo on the Local Self Government Institutions in extending the period of licence.
21. This Court considered the issue in Marykutty George v. State of Kerala [2005 (2) KLT 505] and this Court held that in the case of renewal of lease or licence, the rule does not insist for any public auction or tender to be conducted. That does not mean that there is a vested right in the lessee or licensee conferring any automatic renewal of lease or licence. In the case of new building, while the rule insists for public auction or tender, in the case of existing lease or licence, there is no such insistence and the exclusion of the existing lease or licence is only from the obligation to conduct public auction or tender. In other words, in the case of existing lease or licence, it is only a renewal of the grant and hence it is not compulsory to reauction the W.P(C) Nos. 7284 and 13482 of 2022 13 same. This Court further held that a public authority like the Panchayat is therefore entitled to decide whether or not on the expiry of the lease, in the absence of any clause contained in the grant, extension should be given and if so, whether it should be subject to any enhancement of rate of rent or licence fee, as the case may be, in the best interest of the Panchayat.
22. Taking into account the legal position so laid down by this Court in Marykutty George (supra) and taking into consideration the facts and reasons based on which the Municipal authorities have taken a decision to extend the licence of meat stall and slaughter house, of the existing licensees, this Court is not inclined to interfere with the extension granted by the Municipal authorities.
The writ petitions fail and are dismissed.
Sd/-
N. NAGARESH, JUDGE smm/19.07.2022 W.P(C) Nos. 7284 and 13482 of 2022 14 APPENDIX OF WP(C) 7284/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE JUDGMENT IN WPC NO.3159/2022 DATED 03.02.2022.
Exhibit P2 TRUE COPY OF THE APPLICATION MADE BY MR.LUKKA JOSEPH DATED 27.01.2022 BEFORE THE 2ND RESPONDENT.
Exhibit P3 TRUE COPY OF THE APPLICATION DATED 04.02.2022 PREFERRED BY MR.RAJESH T. H BEFORE THE 2ND RESPONDENT.
Exhibit P4 TRUE COPY OF THE APPLICATION/ REPRESENTATION DATED 25.01.2022 PREFERRED BY MR.SINI MON BEFORE THE 2ND RESPONDENT.
Exhibit P5 TRUE COPY OF THE APPLICATION DATED 25.01.2022 PREFERRED BY ONE MR.SUBHASH K K BEFORE THE 2ND RESPONDENT.
Exhibit P6 TRUE COPY OF THE PETITION DATED 25.01.2022 AGAINST 3RD AND 4TH RESPONDENT.
Exhibit P7 TRUE COPY OF MINUTES DATED 18.02.2022. W.P(C) Nos. 7284 and 13482 of 2022 15 APPENDIX OF WP(C) 13482/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE AUCTION NOTICE NO.R3- 6481/17 DATED 16.01.2021 FOR THE PERIOD 2021-2022 PUBLISHED BY THE SECRETARY, KATTAPPANA MUNICIPALITY.
Exhibit P2 THE TRUE COPY OF THE MINUTES
CONTAINING DECISION NO.8 TAKEN IN THE
MEETING HELD ON 18.02.2022 OF THE
FIRST RESPONDENT/MUNICIPALITY.