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2017 DIGILAW 851 (KER)

P. SASIDHARAN v. KOZHIKODE CORPORATION

2017-06-07

K.VINOD CHANDRAN

body2017
JUDGMENT : K. VINOD CHANDRAN, J. 1. The petitioner is aggrieved with the recovery initiated by Ext.P3 miscellaneous bill and Ext. P4 demand notice. The short contention raised is that no recovery can be made under Section 539 of the Kerala Municipality Act, 1994. 2. The petitioner was successful in an auction for a meat stall. A room for carrying on the vending of meat was allotted as per Ext.P1. The petitioner's contention is that a deed was also entered into. The petitioner's contention is that despite the allottment of the room and the possession being given to the petitioner no licence was issued to the petitioner for reason of pendency of W.P.(C)Nos.1205 & 1206/2003. The petitioner also relies on Ext.P2 to raise such a contention. However by looking at Ext.P2 no such contention can be sustained. Ext.P2 is only a notice requiring the petitioner to take a licence under the Kerala Municipality Act, 1994. 3. The Corporation has filed a detailed counter affidavit in which it is stated that the petitioner had not taken a licence and had continued business in the stall without paying rent to the Municipality. On repeated demands made for rent, eventually the petitioner surrendered the stall on 13.1.2005. Hence for the rent due to the Municipality Ext.P3 bill was issued and demand raised as per Ext.P4 is the contention. 4. To get over the limitation in Section 539 of the Kerala Municipality Act the learned Standing Counsel for the Corporation also refers to Exts.R1(a) to (d) being the various notices issued demanding the amounts due from the petitioner. The contention of notices issued is only to be rejected since mere issuance of notices of demand would not save limitation. 5. Section 539 of the Kerala Municipality Act is clear insofar as restraining the Local Authorities from taking any action of distrain or even institution of a suit or prosecution; in respect of any sum due to the Local Authority under the Act after the expiration of a period of three years. Section 538 of the Kerala Municipality Act is also relevant insofar as recover of all sums due to the Local Authority under the provisions of the Act, in the absence of any specific provision for recovery, is to be made by a demand through bill as provided in the Rules and be recovered in the manner provided therein. Section 538 of the Kerala Municipality Act is also relevant insofar as recover of all sums due to the Local Authority under the provisions of the Act, in the absence of any specific provision for recovery, is to be made by a demand through bill as provided in the Rules and be recovered in the manner provided therein. Hence the initiation of recovery proceedings has to be commenced by a demand by way of a bill and not by way of notices of demand alone. The bill as is seen from the documents produced at Ext.P3 is dated 9.9.2010. Even according to the Municipality the petitioner vacated the premises on 13.1.2005. The bill has been issued 5 years after that. In such circumstances, the writ petition has to be allowed setting aside the demand raised for recovery of the rent amount for reason of it being barred by limitation. 6. The writ petition is allowed. No costs.