Kerala High Court
Ashraf A.H vs Kerala State Road Transport ... on 18 November, 2006
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY,THE 13TH DAY OF DECEMBER 2016/22ND AGRAHAYANA, 1938
WP(C).No. 25689 of 2009 (E)
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PETITIONER(S):
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ASHRAF A.H., ALANKARATHU HOUSE,
KUMBAZHA, PATHANAMTHITTA.
BY ADVS.SRI.V.K.SUNIL
SMT.NIMA JACOB
RESPONDENT(S):
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1. KERALA STATE ROAD TRANSPORT CORPORATION,
REPRESENTED BY ITS MANAGING DIRECTOR,
TRANSPORT BHAVAN, THIRUVANANTHAPURAM.
2. THE ESTATE OFFICE, K.S.R.T.C,
TRANSPORT BHAVAN, THIRUVANANTHAPURAM.
3. THE DISTRICT TRANSPORT OFFICER,
PATHANAMTHITTA.
4. THE ASSISTANT TRANSPORT OFFICER,
PATHNAMTHITTA.
R1,2 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR, SC
R3,4 BY GOVERNMENT PLEADER SRI.SANTHOSH PETER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-12-2016,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
PJ
WP(C).No. 25689 of 2009 (E)
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APPENDIX
PETITIONERS' EXHIBITS
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P1: COPY OF THE ORDER NO.ESI-033824/06/400 DATED 18/11/2006
P2: COPY OF THE RECEIPT FOR PAYMENT OF RS.66,660/- IN FAVOUR OF THE
RESPONDENTS
P3: COPY OF THE AGREEMENT (SPECIMEN) EXECUTED BY THE PETITIONER
WITH THE RESPONDENTS
P4: COPY OF THE APPLICATION DATED 12/2/2007 SUBMITTED BY THE R4 TO
REGULARISE THE CONSTRUCTION OF THE SHED
P5: COPY OF THE REPRESENTATION DATED 27/3/2008 SUBMITTED BY THE
PETITIONER BEFORE THE MECHANICAL ENGINEER KSRTC
P6: COPY OF THE LETTER NO.ESI-0033824/06 DATED 9/6/2008 ISSUED BY THE
MECHANICAL ENGINEER KSRTC TO THE R3
P7: COPY OF THE REPRESENTATION DATED 16/6/2008 SUBMITTED BY THE
PETITIONER BEFORE THE R4
P8: COPY OF THE REPRESENTATION DATED NIL SUBMITTED Y THE PETITIONER
BEFORE THE R4
P9: COPY OF THE REPRESENTATION DATED 12/8/2008 SUBMITTED BY THE
PETITIONER BEFORE THE R1
P10: COPY OF THE DEMAND NOTICE DATED 14/7/2009 ISSUED BY THE R4
P11: COPY OF THE REPRESENTATION DATED 21/7/2009 SUBMITTED BY THE
PETITIONER BEFORE THE R4
P12: COPY OF THE NOTICE NO.G.5576/09/PTA DATED 28/8/2009 ISSUED BY THE R
P13: COPY OF THE APPLICATION DATED 8/10/2009 BEFORE THE R4
RESPONDENTS' EXHIBITS
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R1(A): COPY OF THE LETTER RELATING TO THE MATTER FORWARDED BY THE
ASSISTANT TRANSPORT OFFICER DATED 23/7/2008.
/ TRUE COPY /
P.S. TO JUDGE
PJ
P.V.ASHA, J.
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W.P(C) No.25689 of 2009-E
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Dated this the 13th day of December, 2016
JUDGMENT
The petitioner challenges Exts.P10 and P12 notices by which he was directed to pay a sum of Rs.1,56,593/- towards the rent of stall no.1.
2. As per Ext.P1 order dated 18.11.2006, the petitioner was accorded sanction for conducting a pan shop in the KSRTC bus stand at Pathanamthitta in stall no.1. Ext.P1 order was passed on the basis of tenders invited by the respondent KSRTC. The petitioner had remitted a sum of Rs.25,000/- on 30.10.2006 towards security deposit apart from a sum of Rs.66,660/- towards licence fee for a period of 36 months. While according sanction to the petitioner to run the shop, by Ext.P1, the petitioner was directed to remit a sum of Rs.16,665/- on the first day of the licence period towards quarterly license fee for the first quarter, failing which 24% penal interest was to be levied from due date. The petitioner submits that even though the license was to run the pan shop in the KSRTC bus stand, there was no pan shop or W.P(C) No.25689 of 2009-E 2 stall and he was unable to conduct the shop till a new stall was constructed and the municipality assigned building number for the same. According to the petitioner, he could run the shop only from 21.8.2008. The petitioner has produced Ext.P4 letter dated 12.2.2007 of the Assistant Transport Officer, Pathanamthitta by which he had addressed the Secretary of the Municipal Council, Pathanamthitta requesting for regularising construction of the stall and to assign the building number. He has produced Ext.P5 letter dated 27.03.2008 by which he requested the Mechanical Engineer of the respondent to take necessary action to enable him to start the shop from 1.4.2008. In this representation he pointed out that the stall was constructed at his own expense and initially the Municipality had declined consent insisting to keep the distance prescribed under the Municipality Act. The petitioner has produced Exts.P7 and P8 representations, in which he requested the Corporation to provide electricity and further requested to allow him to run the shop from 18.6.2008 onwards. He had also produced a copy of the representation submitted on 12.8.2008 addressed to the M.D of the KSRTC, in which he requested for appropriate action explaining the inability in running the shop on account of the W.P(C) No.25689 of 2009-E 3 demolitions of the stall pointing out that he had paid the licence fee in advance as early as in 2006. It was thereafter that he could open the shop only on 21.8.2008. Immediately thereafter he received Ext.P10 notice dated 14.7.2009, by which he was directed to remit arrears of licence fee for the period from 22.11.2006 onwards, without considering the fact that he was unable to run the shop from 2006 onwards. On receipt of Ext.P10 notice the petitioner submitted Ext.P11 reply stating that in the absence of a stall or a shop to run, he was unable to run the business for a period of 21 months and therefore requested to withdraw the proceedings for recovery initiated against him. The writ petition was filed when Ext.P12 notice was issued threatening coercive proceedings.
3. The respondents have filed a counter affidavit stating that the petitioner was bound to run the shop from 21.11.2006 onwards, on the basis of the agreement and it was not the responsibility of the corporation to construct any shed or to obtain permit for the same. According to the respondents, they had not directed the petitioner to construct any shed and construction if any made, was without the knowledge of the unit officer. The respondents have also produced a letter Ext.R1(a) in W.P(C) No.25689 of 2009-E 4 which the Assistant Transport Officer, on 23.07.08 addressed the Chief Engineer informing that the stall no.1 was opened on 22.07.2008 without permission from the Chief office and information was received that fake C.Ds were kept in that stall. The Police seized those C.Ds and the petitioner was arrested. It is therefore stated that the Corporation had not given any instruction to the petitioner to shut down the shop or to construct the shop. Therefore, it is stated that he is liable to remit the entire licence fee in 7 equal monthly instalments. The Corporation disputed the contention of the petitioner that there was no stall or that it was demolished.
4. The petitioner has filed a reply affidavit pointing out the letter Ext.P4 of Asst. Transport Officer requesting the Municipality to assign number to the stall, in which he pointed out the delay occurred on his part, but only at the instance of the officers of respondents who were hostile to him. The petitioner stated that there was no proceedings against him by the Municipality as alleged by the 4th respondent and that after remitting a huge amount as licence fee in advance, there is no reason for him not to start the business except for want of stall and that delay in opening the stall was not caused at his W.P(C) No.25689 of 2009-E 5 instance. It was pointed out that as per the conditions in the agreement or in the tender, he was not supposed to construct any stall. Regarding Ext.R1(a) it is submitted that the petitioner was not booked by the Police for any offence and no incident of seizing of any fake C.Ds occurred in his stall.
5. I heard the learned counsel for the petitioner. It is seen that by Ext.P1 the respondents accorded sanction to the petitioner to conduct stall no.1 (pan shop). At the same time, the respondents in the counter affidavits say that it was the responsibility of the petitioner to construct the shop. Neither Ext.P1 nor Ext.P3 agreement provides for any construction of stall for the purpose of running the business. Moreover, Ext.P4 letter of the Assistant Transport Officer would show the delay caused by him in approaching the Municipality and the petitioner was unable to run the business on account of the inaction of the officers in the KSRTC till such numbering requested was done. Regarding the incident stated in Ext.R1(a) also, according to the petitioner, the respondents have not produced any materials relating to any crime if any registered. Therefore, the contention of the petitioner about the non co- operation of the officers of the respondents and their hostile W.P(C) No.25689 of 2009-E 6 attitude towards him merits consideration.
6. From the various representations produced by the petitioner, it is seen that the petitioner had to construct the stall and to get it numbered by the municipality for which the co- operation of the officers of the KSRTC was necessary. At any rate, it is seen that there was no facility for the petitioner to run the shop, which, according to the petitioner, was because the person who was conducting the stall prior to Ext.P1 had already demolished the stall and there was no stall for him to run.
7. Under the above circumstances, the respondents are not justified in initiating any proceedings for recovery of the licence fee for the period during which the petitioner was unable to run the shop for want of a stall. When license is granted to run a shop in a particular stall, the respondents ought to have ensured that there was a stall physically available for running the shop.
In the above circumstances, I set aside Exts.P10 and P12. It will be open for the respondents to consider his representations and to pass fresh orders after affording an opportunity to the petitioner and to consider the request made by him in the various representations produced in this writ W.P(C) No.25689 of 2009-E 7 petition and the factual circumstances under which he was unable to run the business in the pan shop.
The writ petition is disposed of accordingly.
Sd/-
(P.V.ASHA, JUDGE) rtr/