Kerala High Court
Kannur Ice Fish Merchant & Commission ... vs Kannur Municipality
Author: K.Surendra Mohan
Bench: K.Surendra Mohan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
FRIDAY, THE 8TH DAY OF NOVEMBER 2013/17TH KARTHIKA, 1935
WP(C).No. 24933 of 2013 (N)
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PETITIONERS:
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1. KANNUR ICE FISH MERCHANT & COMMISSION AGENTS ASSOCIATION
AYIKKARA FISH MARKET, AYIKKARA, KANNUR-670003
REPRESENTED BY ITS SECRETARY K.P.HASHIM.
2. B.FAROOQ,
BATINTAVIDA HOUSE, RETAIL FISH MERCHANT
NEAR NEERCHAL U.P.SCHOOL, KANNUR-670 003.
3. ANANTHA KRISHNAN,
RETAILS FISH MERCHANT,AYIKKARA FISH MARKET, AYIKKARA
KANNUR-670 003.
BY ADV. SRI.P.M.PAREETH
RESPONDENT(S):
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1. KANNUR MUNICIPALITY
REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE
KANNUR-2.
2. SECRETARY,
KANNUR MUNICIPALITY, MUNICIPAL OFFICE, KANNUR-2.
3. CIRCLE INSPECTOR OF POLICE,
KANNUR CITY POLICE STATION, KANNUR-670 003.
4. KERALA STATE COASTAL AREA DEVELOPMENT CORPORATION LTD.,
MAKAYIRAM, TC/16/1709, NEAR DPI
ULLOOR LANE, JAGATHY, THIRUVANANTHAPURAM-695 014
REPRESENTED BY ITS MANAGING DIRECTOR.
R1&2 BY ADV. SRI.K.K.CHANDRAN PILLAI (SR.)
R1&2 BY ADV. SRI.THOMAS JAMES MUNDACKAL
R4 BYADV. SRI.JIBU P THOMAS
R4 BYADV. SRI.S.JOSHI
R BY GOVERNMENT PLEADER SRI. P.V.ELIAS
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
08-11-2013, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING:
WP(C).No. 24933 of 2013 (N)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXT.P1: A TRUE PHOTOCOPY OF THE REGISTRATION CERTIFICATE
NO.KNR/CA/633/2012 DATED 14/11/12.
EXT.P2: A TRUE PHOTOCOPY OF THE PROCEEDINGS DATED 13/7/2009 ISSUED
BY THE 2ND RESPONDENT.
EXT.P3: A TRUE PHOTOCOPY OF THE RECEIPT DATED 26/02/13 ISSUED TO
SRI.MOHAMMED RAFEEQ.K.P. A MEMBER OF THE FIRST PETITIONER
ASSOCIATION FOR PAYMENT OF LICENSE FEE FOR 2013-14
EXT.P4: A TRUE PHOTOCOPY OF THE RECEIPT DATED 04/01/2012 ISSUED TO
THE 3RD PETITIONER FOR PAYMENT OF LICENSE FEE FOR 2012-2013.
EXT.P5: A TRUE PHOTOCOPY OF THE PROCEEDINGS DATED 23/04/2013
AWARDING CONTRACT FOR 01/04/2013 TO 31/03/2014.
EXT.P6: A TRUE PHOTOGRAPH SHOWING THE ACTIVITIES OF THE MARKET
AND THE TWO FLATS SNAPPED AT 6 AM ON 07/10/2013.
EXT.P7: A TRUE PHOTOCOPY OF THE PLAN OBTAINED FROM THE FIRST
RESPONDENT.
EXT.P8: A TRUE PHOTOCOPY OF THE REPRESENTATION DATED 18/09/2013
SUBMITTED BY THE FIRST PETITIONER BEFORE THE CHAIRPERSON
KANNUR, MUNICIPALITY.
RESPONDENT(S)' EXHIBITS
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EXT.R1(a) COPY OF COMMUNICATION DATED 1-10-2013 FROM THE
MUNICIPALITY TO THE 4TH RESPONDENT
EXT.R1(b) COPY OF REPLYFROM THE 4TH RESPONDENT TO THE
MUNICIPALITY DATED 4-10-2013 TO EXT.R1(a)
EXT.R1(c) COPY OF GOVERNMENT ORDER DATED 13-6-2012
EXT.R1(d) COMPANY OF LETTER DATED 13-12-2012 FROM THE 4TH
RESPONDENT TO THE MUNICIPALITY.
EXT.R1(e) COPY OF MINUTES OF THE MEETING WITH THE IST PETITIONER
DATED 27-7-2013
EXT.R1(f) COPY OF THE MINUTES OF THE MEETING WITH THE RETAILERS
DATED 27-7-2013
WP(C).No. 24933 of 2013 (N)
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EXT.R1(g) COPY OF THE NOTICE PUBLISHED IN CONNECTION WITH THE
INAUGURAL FUNCTION.
EXT.R1(h) COPY OF LETTER DATED 29-7-2013 ISSUED BY THE MUNICIPALITY TO
THE HARBOR AUTHORITY
EXT.R1(i) COPY OF COMMUNICATION DATED 29-7-2013 ISSUED BY THE
MUNICIPALITY TO PETITIONERS
EXT.R1(j) COPY OF COMMUNICATION DATED 29-7-2013 ISSUED BY THE
MUNICIPALITY TO PETITIONERS
TRUE COPY
P.A TO JUDGE
SMM
K.SURENDRA MOHAN, J.
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W.P.(C) No.24933 of 2013-N
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Dated this the 8th day of November, 2013
J U D G M E N T
The first petitioner a registered association of the whole sale fish merchants and commission agents, along with petitioners 2 and 3 who claim to be retail fish merchants, have filed this writ petition seeking the following reliefs:-
1). A writ of mandamus or other appropriate writ, direction or order commanding the respondents 1, 2 and 4 to modify the Ext. P7 plan deleting the provision for auction hall so as to retain the existing parking space for vehicles loaded with fish coming to the Ayikkara fish market from outside.
2). A writ of prohibition restraining the respondents 1, 2 and 4 from starting the work of construction of Ayikkara open fish market as per Ext.P7 plan before deleting the provision for auction hall. A declaration to the effect that the petitioners and other fish vendors are entitled to continue to get the existing facilities in the Ayikkara open fish market in view of the licence fee and other fees remitted by them and the action of the respondents in having taken steps to reduce the facilities thereby affecting the livelihood -:2:- W.P.(C) No.24933 of 2013-N of fish vendors is illegal and arbitrary.
3). To grant cost
4). To grant such other reliefs this Hon'ble Court deem fit and proper in the facts and circumstances of the case.
2. According to the petitioners, the respondents are taking steps to destroy the Ayikkara fish market by reducing its area and the facilities therein, in the name of beautification and modernization of the market. It is alleged that the entire action is tainted with malafides. The real object is to favour two multi storeyed apartment complexes that have now come up close to the market. The wholesale fish merchants shown in Exhibit P2 list are members of the first petitioner association, while petitioners 2 and 3 represent the retail merchants. According to them, they have paid licence fee for the entire year. They are paying various other charges also to the Municipality. A number of vehicles carrying fish reach the market every day. The property from which the market is now functioning is 72cents in extent. There are about 600 families engaged in fish vending in the market itself and the -:3:- W.P.(C) No.24933 of 2013-N market is the source of livelihood for as many as four thousand families, according to the petitioners.
3. The complaint of the petitioners is against the proposal to modernize the fish market in accordance with Exhibit P7 plan. Buildings are proposed to be constructed, providing for an auction hall, a chilling area and a host of other facilities. According to the petitioners, the proposed innovations would deprive the market of the space that is available for parking vehicles that come to the market with loads of fish. It would greatly reduce the facilities and amenities presently available, thereby depriving the petitioners of their means of livelihood. They have therefore sought for a modification of Exhibit P7 plan and for the issue of appropriate orders restraining the respondents from commencing any construction without deleting the proposal for an auction hall. Though Exhibit P8 representation was submitted setting out the objections of the petitioners, they complain that no orders have been passed thereon by the first respondent till date.
4. The contentions of the petitioners are opposed by -:4:- W.P.(C) No.24933 of 2013-N respondents 1 and 2 who have filed a counter affidavit producing Exhibits R1(a) to R1(s) documents. According to the second respondent, Exhibit P8 was considered immediately on receipt of the same and Exhibit R1(a) proceedings have been issued to the 4th respondent requesting for the construction of the wholesale section of the market to be dropped, confining the construction to only the retail market. Exhibit R1(a) has been acceded to by Exhibit R1(d) issued by the 4th respondent. Therefore, it is contended that the reliefs sought for by the petitioners have already been obtained, in view of Exhibits R1(a) and Exhibit R1(d).
5. Senior Counsel Sri. K. K. Chandran Pillai who appears for respondents 1 and 2 contends that the petitioners have filed this writ petition without disclosing the entire facts and circumstances of the case. According to the Senior Counsel, there is a water channel as well as a drainage extending along the boundary of the 72 cents of land in which the Ayikkara market is now functioning. Both the water channel as well as the drainage have become -:5:- W.P.(C) No.24933 of 2013-N contaminated by the functioning of the market and is a source of acute nuisance and pollution in the area. The Municipality wanted to work out a permanent solution for the problem by providing a safe, clean and hygienic facility for the vending of fish to the customers who frequent the market. However, they were not able to undertake any effective measures due to financial constrains. It was in the above circumstances that, the Government as per Exhibit R1(c) put forward a proposal to set up markets in different parts of the State. The present market was included as one of the markets to be upgraded and modernized by including the same in the said proposal. Upon the proposal being mooted, a meeting of all concerned was called, and various decisions were taken, with the participation of the fish vendors both retail and wholesale, the minutes of which is produced as Exhibit R1(e). It was decided at the said meeting that the fish vending that was being carried on in the present market would be shifted to the Harbour on 11.08.2013 and that an inspection of the site would be conducted by the Engineers before the said date. Exhibit -:6:- W.P.(C) No.24933 of 2013-N R1(f) is the minutes of a similar meeting exclusively with the Retailers. After the modalities were worked out, an inauguration was conducted on 21.05.2013, the invitation of which is Exhibit R1(g). The fish vendors were thereafter notified that they should shift on 11.08.2013. The proposal to shift the market to the Harbour was acceded to by the Engineer-in-Charge of the Harbour subject to the conditions stipulated in Exhibit R1(k). Accordingly, the market was shifted, the site was taken over and was given possession of to the 4th respondent, who was to undertake the work.
6. In the above circumstances, the fish vendors who had shifted to the Harbour came back, forced their way into the construction site and occupied the same unauthorizedly. They have been continuing at the said site ever since. According to the learned Senior Counsel the acts of the petitioners are high handed as well as unauthorized and therefore, respondents 1 and 2 have submitted complaints to the Disrict Collector requesting for necessary action to be initiated against them.
7. In the above circumstances, another meeting was -:7:- W.P.(C) No.24933 of 2013-N convened in the Chamber of the District Collector. After discussions, it was decided that they would vacate the construction site by 09.09.2013. Exhibit R1(n) is the minutes of the said meeting. However, they again went back on their assurance. In the above circumstances, the Municipal Council by Exhibit R1(q) decided to clear the Ayikkara market of the encroachments on 18.10.2013. Accordingly, with the help of the Police, the market area was cleared as evident from Exhibit R1(s) report. It was thereafter that the present writ petition was filed on 09.10.2013 without disclosing any of the previous incidents. Therefore, according to learned Senior Counsel, the petitioners have not come to this Court with clean hands. Consequently, on the strength of the interim order that was passed on 10.10.2013, the petitioners are continuing in occupation of the premises, effectively stalling the development project that was about to be implemented, after protracted efforts. It is contended that this writ petition is therefore liable to be dismissed with exemplary costs. The complaint of the petitioners also does not survive -:8:- W.P.(C) No.24933 of 2013-N in view of Exhibits R1(a) and R1(b).
8. Heard the counsel appearing for the petitioners, the Senior Counsel who represents respondents 1 and 2, the learned Government Pleader as well as Sri. Joshi S. who appears for the 4th respondent.
9. As rightly pointed out by the learned Senior Counsel who appears for respondents 1 and 2, it was imperative on part of the petitioners to have disclosed the sequence of events narrated in the counter affidavit, to all of which they were parties. The counter affidavit supported by the documents produced, which are not seriously disputed by the respondents, clearly show that the authorities had proceeded in the matter with all due care and caution at all stages, involving the persons who were likely to be affected in the decision making process and making provision for the redressal of their grievances. Though the initial proposal was to construct a full fledged auction hall, which would certainly have been a sophisticated facility for the conduct of the auction, the same was objected to and acceding to the objections, the -:9:- W.P.(C) No.24933 of 2013-N Municipality has scrapped the said proposal, by confining the construction only to the setting up of a retail market. The minutes of the said meeting produced along with the counter affidavit shows that after discussions, the representatives of the petitioners as well as the other fish vendors who were using the market had consented to the action that was proposed. They had also shifted their business to Harbour pursuant to the decision. According to Sri.P.M. Pareeth who appears for the petitioners, they could not carry on their business at the Harbour because of the objections of the boat owners as well as small fish vendors. Therefore, according to him, they were forced to return. It is further alleged that another person has offered his property free of cost for setting up a market during the interregnum period that is required for completing the construction. However, I do not want to make any observations regarding the private land that has been offered for the reason that it has no bearing on the issues that arise for consideration here. It is for the Municipality to consider the said request, if at all it requires such -:10:- W.P.(C) No.24933 of 2013-N consideration.
10. For the present purpose, the fact remains that the proposal that had emanated as per Exhibit R1(c) of the Government in the year 2012, still does not see any prospect of being implemented. The objections that were periodically raised were all duly addressed and consensus decisions had been arrived at, resolving them, as is clear from Exhibit R1(e) minutes. An inauguration was conducted and the market was also shifted. The objections of the fish vendors who had a rethinking on the issue has led to the present situation. The shifting stand adopted by the fish vendors cannot be countenanced and cannot be permitted to thwart development Projects, as in the present case. It was incumbent on the petitioners to have disclosed all the previous incidents while filing this writ petition. The omission to do so disentitles them from claiming the benefit of the discretionary jurisdiction of this Court under Article 226 of the Constitution. Apart from the above, the fact remains that, as per Exhibits R1(a) and R1(d), the first and second prayers sought for in the writ petition stand -:11:- W.P.(C) No.24933 of 2013-N redressed. This is in view of the fact that, the auction hall that was proposed to be constructed as per Exhibit P7 has been abandoned as evident from Exhibits R1(a) and R1(b).
Had the entire facts been placed before this Court while filing the writ petition, there cannot be any doubt that, no interim order as granted in the present case would have been granted. Therefore, the conduct of the petitioners in this case requires serious notice. Their conduct is nothing but but an abuse of the process of Court. For the above reasons, I do not find any grounds to grant any of the reliefs sought for in this writ petition. This writ petition is therefore dismissed with costs quantified at 25,000/- (Rupees Twenty five thousand only).
K.SURENDRA MOHAN, JUDGE kkj