Kerala High Court
Muhammed Najeeb A vs Municipal Corporation Of ... on 23 November, 2021
Author: Shaji P.Chaly
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 23RD DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA, 1943
WA NO. 1734 OF 2020
AGAINST THE JUDGMENT IN WP(C) 1732/2017 OF HIGH COURT OF KERALA
APPELLANT/PRTITIONER:
MUHAMMED NAJEEB A.
AGED 29 YEARS
S/O.ABDUL MUTALIF,AGED 29 YEARS,REBOOT CAR
CREATORS,TC.15/2325-1,2, GOLF LINKS ROAD,KOWDIAR,
THIRUVANANTHAPURAM-695 003.
BY ADVS.
P.B.SAHASRANAMAN
SRI.T.S.HARIKUMAR
RESPONDENT/RESPONDENT:
1 MUNICIPAL CORPORATION OF THIRUVANANTHAPURAM,
VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695 003.
REPRESENTED BY ITS SECRETARY.
2 MUNICIPAL COUNCIL,
CORPORATION OF THIRUVANANTHAPURAM,CORPORATION
BUILDINGS,PALAYAM,THIRUVANANTHAPURAM-695 033.
3 DR.MOHAMMED IPHTHIKAR,
AGED 55 YEARS,S/O.B.OOMMER RAWTHER,RESIDING AT
3E,NIKUNJAM,RHAPSODY,KAMMATTAM LANE,RISHIMANGALAM,
VANCHIYOOR P.O. THIRUVANANTHAPURAM-695 035.
BY ADVS.
SRI.N.NANDAKUMARA MENON (SR.)FOR R1 & R2
S.MANU FOR R3
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
23.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No.1734 of 2020 2
JUDGMENT
Dated this the 23rd day of November, 2021 SHAJI P.CHALY,J.
Above appeal is preferred by the petitioner in W.P.(C) No.1732/2017, challenging the judgment dated 2nd November, 2020 and the order in Review Petition No.904/2020 in the said writ petition, whereby the following reliefs sought for in the writ petition were declined:
(i) To issue a writ of certiorari calling for the records leading to Exhibit P7 and quash the same.
(ii) To issue a writ, direction or order in the nature of mandamus or such other appropriate writ, direction or order commanding the respondent to issue necessary license which was sought for by Exhibit P2 forthwith.
(iii) Such other reliefs which this Hon'ble Court deems fit and necessary in the circumstances of the case and the costs of this case.
2. The subject issue relates to declining licence to the appellant by the Thiruvananthapuram Municipal Corporation to run a workshop, on the ground that the area in which the workshop conducted is situated in a residential zone, and has also been included in a heritage scheme under the Town Planning Scheme in force. Brief material facts for the disposal of the writ appeal are as follows; W.A.No.1734 of 2020 3
3. Appellant has taken on lease two buildings bearing Nos.T.C.5/2325/1 & 2, within the limits of the Thiruvananthapuram Corporation for conducting a motor workshop in 2013 from the 3rd respondent. Appellant secured consent from the Kerala State Pollution Control Board, and it appears that the State Government has recognized the workshop for repairing Government vehicles. Appellant has submitted an application seeking trade licence under section 447 of the Kerala Municipality Act, 1994, hereinafter called, "Act, 1994", but no orders were passed by the Secretary, rejecting the application in terms of section 447(3) of the Act, 1994.
4. It is also the case of the appellant that no order rejecting the application was communicated to the appellant and therefore, a deemed licence is accrued in terms of section 447(6) of Act, 1994. The case projected by the appellant is that the said licence was renewed from time to time and the last application for renewal was made on 12.10.2020.
5. While so, the Health Inspector of the Corporation issued Exhibit P5 notice to the appellant stating that the workshop is conducted in a heritage zone and it is not having the licence. Appellant filed an appeal challenging Exhibit P5 before the Municipal Council. It is the case of the appellant that by virtue of the powers conferred on the Mayor of the corporation as per Act1994, a stay of Exhibit P5 order W.A.No.1734 of 2020 4 was granted and the said stay was subsequently ratified by the Council. But the Health Officer mistakenly felt it as an order rejecting the appeal, and issued Exhibit P7 notice, which was under challenge in the writ petition. According to the appellant, the attitude of the Secretary of the Corporation that no licence can be granted in a heritage zone to conduct any commercial activity is overlooking the statutory provisions and the said finding is without any basis. It is further submitted that the term heritage zone is analogous to law.
6. Contentions are also advanced by the appellant relying upon section 45 (1)
(h) of the Kerala Town and Country Planning Act, 2016. It is also submitted that the Government of India has amended the Ancient Monuments and Archaeological Sites Remains Act, 1958 in the year 2010, to include provisions for regulation, by Heritage Bye-laws for prohibited and regulated areas for each centrally protected monument/site. That apart it is contended that the provisions of the Town and Country Planning Act in force cannot overlook the provisions of Kerala Municipality Act, 1994. It is also the contention of the appellant that the restrictions, if any, are imposed only under heritage site and not on zone and therefore, the finding of the Secretary that the business of the appellant is located in the heritage zone is incorrect and therefore, violative of Article 300A of the Constitution of India.
7. The learned Single Judge, after taking into account the contentions advanced W.A.No.1734 of 2020 5 by the appellant and hearing the counsel for the Municipal Corporation and the owner of the building viz., the 3rd respondent, has rejected the contentions by holding that the writ petition was filed in the year 2017 and the appellant is not having any licence as of now to conduct the workshop and further that Exhibit P7 proceedings, in fact, only approved the temporary stay granted by the Mayor and a final decision has been taken by the Council by directing the Health Inspector to take further steps to close down the workshop. It was also held that since the area where the business is located is included in a heritage zone, no commercial activity is permissible overlooking the statutory provisions and therefore, the appellant cannot be granted licence.
8 It is quite clear from the Judgement that, when the writ petition was dismissed, learned counsel appearing for the appellant sought time to vacate the premises and accordingly, time was granted up to 21.12.2020 to close down the workshop. Even though a Review Petition was filed to review the judgment, that was also dismissed as per an order dated 25.11.2020. It was thus challenging the legality and correctness of the judgment of the learned Single Judge, this appeal is preferred. To complete the facts ,it is pointed out that though the interim order passed by this court granting time to remove the vehicles from the premises in question sealed by the Corporation and grating extension of time for removal of the W.A.No.1734 of 2020 6 vehicles in I.A 3/ 2021, Special Leave to Appeal was preferred before the honourable Supreme Court, it was dismissed on 19.08. 2021, however with a request to dispose of the appeal as early as possible.
9. We have heard learned counsel for the appellant Sri.P.B.Sahasranaman, learned Senior Counsel appearing for Municipal Corporation Sri. N.Nanadakumara Menon, assisted by Adv.Manoj Kumar, Sri.S.Manu for the 3rd respondent - building owner, and perused the pleadings and materials on record.
10. It is an admitted fact that Exhibit P7 is pertaining to an appeal proceeding initiated by the appellant in respect of Exhibit P5 order passed by the Health Officer of the Municipal Corporation dated 27.10.2015 directing the appellant to close down the workshop since it is conducted without any licence; that no commercial activity is possible in the area since it is included in the heritage zone as per the Town Planning Scheme in force; and is in a residential area.
11. Therefore, it can be seen that the issue raised by the appellant was in respect of the action taken by the Health Officer of the Municipal Corporation for conducting the workshop during the year 2015 and therefore, the appeal preferred before the Municipal Council relating to the said year, can never be sustained under law, at this distance of time especially due to the fact that the license had to be W.A.No.1734 of 2020 7 issued on an year to year basis. It is also clear from the proceedings that Exhibit P7 is only an order passed pertaining to the interim order passed by the Mayor of the Corporation. It is also clear from the judgment of the learned Single Judge that the appeal itself was later dismissed and it is accordingly that action was initiated by the Municipal Secretary to close down the workshop conducted by the appellant.
12. Anyhow, it is an admitted fact that subsequently appellant submitted an application before the Municipality seeking licence, which was rejected and against which, appellant has preferred an appeal before the Tribunal as Appeal No.538/2020 and secured a stay in I.A.No.1103/2020. Later, the 3rd respondent herein filed I.A.No.847/2021 in Appeal No.538/2020 before the Tribunal, challenging the maintainability of the appeal and after considering the rival submissions made, the appeal itself was dismissed by the Tribunal holding that when the licence application was rejected by the Secretary of the Municipal Corporation, the remedy available to the appellant was to approach the Municipal Council, in terms of section 509 of the Kerala Municipality Act, 1994. We also had the advantage of perusing the afore proceedings and orders since they are produced by the 3rd respondent along with a memo dated 09.11.2021.
13. Therefore, it can be seen that the subject issue raised in the writ petition and this appeal in regard to the entitlement of the appellant for securing licence W.A.No.1734 of 2020 8 during the year 2015, is no longer surviving to be adjudicated in this appeal. Moreover, it is categoric and clear that the reason for rejection made by the Secretary of the Corporation is that since the building in question is situated in a heritage zone/area, no licence can be granted for conducting any commercial activity. Against such a finding made by the Secretary of the Corporation, there is no averment made in the writ petition that it is not situated in a heritage zone or heritage area. The contention advanced by the Municipal Corporation was that the building is situated in a heritage area as per the Scheme in force and therefore, no commercial activity is permissible and further that it is a residential area as per the Scheme. Even though learned counsel for the appellant has advanced a contention that in Exhibit P6 appeal preferred by the appellant before the Municipal Council in the year 2015, it is stated that the finding of the Secretary that the workshop is situated in the heritage zone is totally illegal, unjust and unfair, for more reasons than one, the said statement cannot be accepted. Firstly, that statement before some other authority is not proved in accordance with law and therefore it has no probative value as a conclusive proof to be accepted in a writ or appeal proceeding, and secondly, there is no pleading at all in the writ petition or in the appeal that the building in question is not included in a heritage zone/area as per the Town Planning Scheme in force.
W.A.No.1734 of 2020 9
14. The discussion made above would make it clear that the judgment of the learned Single Judge is perfectly in order and there are no established circumstances made out by the appellant so as to interfere with the judgment of the learned Single Judge in an intra court appeal, there being no jurisdictional error or other legal infirmities justifying us to do so.
Upshot of the above discussion is that, the writ appeal fails, accordingly it is dismissed.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY
smv JUDGE