Kerala High Court
Dr.Sam P. Abraham vs The Changanacherry Municipality on 30 June, 2020
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY, THE 30TH DAY OF JUNE 2020 / 9TH ASHADHA, 1942
WP(C).No.12862 OF 2020(G)
PETITIONER/S:
DR.SAM P. ABRAHAM
AGED 58 YEARS
S/O.ABRAHAM, PROPRIETOR, ABRAHAM'S INFERTILITY
RESEARCH AND GYNAC CENTRE, RESIDING AT PUTHIYA VEEDU,
ARAMANAPPADY, CHANGANACHERRY.
BY ADV. SRI.LIJI.J.VADAKEDOM
RESPONDENT/S:
1 THE CHANGANACHERRY MUNICIPALITY
REPRESENTED BY ITS SECRETARY, OFFICE OF THE
MUNICIPALITY, CHANGANACHERRY P.O., KOTTAYAM-686 101.
2 THE SECRETARY, CHANGANACHERRY MUNICIPALITY,
OFFICE OF THE MUNICIPALITY, CHANGANACHERRY P.O.,
KOTTAYAM-686 101.
R1-2 BY ADV. SRI.M.P.MADHAVANKUTTY
OTHER PRESENT:
SRI.M.P.MADHAVANKUTTY,SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
30.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
WP(C).No.12862 OF 2020(G)
ALEXANDER THOMAS, J.
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W.P.(C) No.12862 of 2020
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Dated this the 30th day of June, 2020
JUDGMENT
The case set up in this writ petition (c) is as follows:-
Petitioner is a Doctor conducting an Infertility Clinic in the name 'Abraham's Infertility Research and Gynac Centre in Building No.XXVI/550, 551 and 552 of the Changanacherry, Municipality (1 st respondent) from the year 2000 onwards. The building is owned by the father of the petitioner. The hospital is registered with the 1 st respondent-Municipality as per Rule 3 of the Kerala Municipality (Registration of Private Hospitals and Private Paramedical Institutions) Rules, 1997. The said registration has been renewed from time to time till the year 2019-2020. Exhibit P1 is the copy of the registration showing registration for the year 2019-2020. Further the petitioner has also obtained the licence as per Section 447 of the Municipality Act for conducting the hospital in the above mentioned building. The said licence also is renewed till 31.03.2020. 3 WP(C).No.12862 OF 2020(G) Exhibit P2 is the copy of licence for the year 2019-2020. Matters being so the Municipality initiated proceedings under Section 406 of Kerala Municipality Act alleging that unauthorised constructions have been made to the existing hospital building (by joining another building constructed as staff quarters and commercial building). Under the said proceeding Exhibit P4 final order was passed by the 2nd respondent directing the father of the petitioner-owner of the building to demolish the unauthorised constructions. The petitioner's father (in whose name Exhibit P4 order was issued) submitted an application for regularisation of the unauthorised construction in accordance with the Kerala Municipality Building (Regularisation of Unauthorised Construction) Rules, 2018 framed as per G.O.(P) No.11/2018. It is learnt that Municipality after verification has forwarded the application of the District Town Planner and the same is pending consideration. As per Rule 6(8) and 6(9) of the above mentioned Rules the application will have to be ultimately considered by a committee constituted for sanctioning regularisation). It may take same time to complete the regularisation proceedings. Now the grievance of the petitioner is that he has submitted applications before the 2nd respondent-Secretary for the renewal of licence and the 4 WP(C).No.12862 OF 2020(G) registration of the hospital. But the 2nd respondent issued Exhibit P5 communication dated 19.03.2020 citing that the renewal applications can be renewed only after a final decision is passed on the regularisation application. But the 2nd respondent ought to have considered that;
i, Granting of renewal of licence and adjudication of regularisation application are independent proceedings.
ii, As per Section 443 of the Municipality Act renewal of a licence can be made if the payment of any tax or fee are not due. As per Exhibit P5 no pending due is there from the petitioner.
iii, Proceedings in pursuance of orders of unauthorised construction can still be made under Section 406 even if the licence/registration stands renewed. In other words the renewal is not bar for the Municipality to proceed under Section 406 to demolish the building.
iv, Now the difficulty being faced by the petitioner is that he cannot get the Accreditation renewed unless the licence and registration stands renewed.
It is in the light of these averments and contentions, that the petitioner has filed this Writ Petition (c) seeking the following prayers: 5
WP(C).No.12862 OF 2020(G) "i., Issue a writ of mandamus, or any other appropriate Writ or Order or direction directing the 2 nd respondent to consider the applications for renewal of licence and registration of the hospital of the petitioner (which is mentioned in Exhibit P5) forthwith with notice to the petitioner.
ii, Grant such other reliefs which this Honourable Court may deem fit and proper in the interest of justice."
2. Heard Sri. Liji.J.Vadakkedam, learned counsel appearing for the petitioner and Sri. M.P.Madhavan Kutty, learned Standing Counsel for the Changanacherry Municipality appearing for the respondents.
3. Sri. M.P.Madhavan Kutty, learned Standing Counsel for the Changanacherry Municipality appearing for the respondents would submit on the basis of instructions that, no decision has been taken on the application for renewal of licence and registration of the petitioner's clinic for the year 2020-21 (referred to in Ext.P5) and that Ext.P5 refers to proceedings taken for the proposed demolition of the building in question on the ground of unauthorized construction thereto and it is intimated in Ext.P5 that in view of the said proposed proceedings in the matter of alleged unauthorized construction, the applications of the petitioner for renewal of the licence and registration to function the clinic in the said subject building cannot be considered now etc. 6 WP(C).No.12862 OF 2020(G)
4. Learned Standing Counsel for the respondent Changanacherry Municipality would submit on the basis of instruction from the respondents fairly that, the issue regarding the plea of the petitioner for renewal of the licence and the registration for the functioning of his clinic in the subject building owned by his father and the issue pointed out in Ext.P5 regarding alleged unauthorized construction in respect of the said building owned by the petitioner's father are two different aspects and that the request of the petitioner for renewal of the licence and registration for the functioning of his clinic could be considered and decided independently and without prejudice to the action that may be taken by the respondent Municipality in respect of the later issue of unauthorized construction, in accordance with law.
5. The said fair submissions made on behalf of the respondents are recorded. Accordingly it is ordered that the impugned Ext.P5 will stand set aside and the application submitted by the petitioner for renewal of the licence and registration to enable the functioning of his private clinic in the building in question will stand remitted to the 2nd respondent Secretary of the Cnhaganacherry Municipality for consideration and decision afresh. The 2 nd respondent 7 WP(C).No.12862 OF 2020(G) will afford reasonable opportunity of being heard to the petitioner and should pass orders on the said application for renewal of the licence and registration as aforesaid, in accordance with law, without much delay preferably within a period of three weeks from the date of production of a certified copy of this judgment, and should also be seriously considered that the said plea of the petitioner for renewal could be allowed, but without prejudice to any action that may be taken by the respondent Changanacherry municipal authorities on the issue of unauthorized construction in the subject building concerned.
6. The petitioner will produce a certified copy of this judgment along with the copy of the memorandum of this W.P. (C) with all the Exhibits before the 2nd respondent Secretary of the Changanacherry Municipality for necessary information and further action.
With these observations and directions the above Writ Petition (Civil) will stand disposed of.
Sd/-
ALEXANDER THOMAS JUDGE hmh 8 WP(C).No.12862 OF 2020(G) APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 THE COPY OF THE REGISTRATION CERTIFICATE NO.H1-11014/19 DATED 03.08.2019 ISSUED IN FAVOUR OF THE HOSPITAL OF THE PETITIONER FOR THE YEAR 2019-2020.
EXHIBIT P2 THE COPY OF THE LICENCE ISSUED TO THE PETITIONERS HOSPITAL BY THE 2ND RESPONDENT FOR THE YEAR 2019-2020.
EXHIBIT P3 THE COPY OF THE CERTIFICATE OF
ACCREDITATION AWARDED TO ABRAHAM'S
INFERTILITY RESEARCH AND GYNAC CENTRE,
CHANGANACHERRY.
EXHIBIT P4 THE COPY OF THE ORDER NO.E2BA/338/09-10
DATED 16.09.2019 (DEMOLITION ORDER)
ISSUED BY THE 2ND RESPONDENT TO THE
FATHER OF THE PETITIONER
(PROF.S.ABRAHAM).
EXHIBIT P5 THE COPY OF THE COMMUNICATION NO.H1-
5166/2020 DATED 19.03.2020 ISSUED BY THE
2ND RESPONDENT.
RESPONDENT'S/S EXHIBITS: NIL