Jabir P. K. , S/o. Hameed v. State of Kerala Represented By Its Secretary, Local Self Government Department, Kerala Government Secretariat, Thiruvananthapuram
2020-10-28
P.B.SURESH KUMAR
body2020
DigiLaw.ai
JUDGMENT : 1. Common issues arise for consideration in these matters and they are, therefore, disposed of by this common judgment. Documents are referred to in the judgment, as they appear in W.P.(C) No.20590 of 2020. 2. Petitioners are two among the allottees of bunk shops by Kannur Municipal Corporation (the Corporation) at a place called Peethambara Park. The allotment of bunk shops to the petitioners were on licence arrangement. The arrangement had to be renewed on completion of every three years. The term of the latest licences entered into between the petitioners and the Corporation expired on 31.03.2020. Though the petitioners preferred applications for renewal of the licences, the same were not considered by the Corporation. While so, on 24.07.2020, the petitioners were issued Ext.P2 notice by the Secretary of the Corporation informing them that the Corporation proposes to establish a multilevel car parking facility at the place where the bunk shops are erected and directing the petitioners to remove the movables in the bunk shops and return the keys of the bunk shops to the Corporation. The petitioners challenged Ext.P2 notice before this Court in two separate writ petitions and the said writ petitions were disposed of by this Court on 3.8.2020 in terms of Ext.P3 judgment with the following orders/directions: “(i) The petitioners will be permitted to submit the written submissions in the matter addressed to the respondent Kannur Municipal Corporation through its Secretary, which may be done by the petitioners within two days from the date of receipt of a copy of this judgment. (ii) The impugned decision of the 5th respondent taken on 26-06-2020 (referred to as item No.2 in Ext.P6 in W.P(C) No.15696/2020 and in Ext.P8 in W.P(C) No.15708/2020) as well as the abovesaid Exts.P6 & P8 proceedings will stand quashed and set aside and the matter in relation thereto, will stand remitted to the competent authority of the respondent Kannur Municipal Corporation for consideration and decision afresh, in accordance with law.
(iii) The 3rd respondent Secretary of the Kannur Municipal Corporation will conduct a detailed enquiry and collect the requisite information in respect of the abovesaid case of the petitioners as mandated in Sec.447 (3) of the Kerala Municipality Act and the 3rd respondent will also afford reasonable opportunity of being heard to the petitioners and then should furnish a detailed report in the matter to the Municipal Corporation Council of the respondent Kannur Municipal Corporation as well as to the 5th respondent Mayor. This process shall be duly completed by the 3rd respondent Municipal Corporation Secretary within two weeks from the date of receipt of a copy of this judgment. A copy of the abovesaid report of the respondent Secretary should also be given to the petitioners in advance. (iv) Thereafter the 5th respondent Mayor of the Kannur Municipal Corporation will afford opportunity of being heard to the petitioners and thereafter should convey the hearing notes of the matter as well as the abovesaid report of the 3rd respondent Secretary as well as the written submissions of the petitioners to the Municipal Corporation Council of the 2nd respondent Kannur Municipal Corporation without any further delay. Thereafter the Municipal Corporation Council of the 2nd respondent will take a decision on the issue as to whether the licence granted to the petitioners to occupy and run their bunks could be continued or is liable for any interference, having due regard to the written submissions of the petitioners and the report of the Secretary as well as the matters disclosed in the said hearing notes. This process shall be duly completed by the 5th respondent Mayor as well as the Municipal Corporation Council, within three weeks from the date of receipt of the report of the 3rd respondent Secretary of the Kannur Municipal Corporation and formal proceedings thereafter may be issued on behalf of the Kannur Municipal Corporation and the same may also be duly furnished to the petitioners." The petitioners did not submit the written submissions permitted to be submitted before the Corporation in terms of Ext.P3 judgment. On 19.8.2020, in terms of Ext.P4 notice, the Secretary of the Corporation called upon the petitioners to state their grievance before him so as to enable him to submit a report to that effect before the Council of the Corporation as directed in Ext.P3 judgment.
On 19.8.2020, in terms of Ext.P4 notice, the Secretary of the Corporation called upon the petitioners to state their grievance before him so as to enable him to submit a report to that effect before the Council of the Corporation as directed in Ext.P3 judgment. In response to Ext.P4, the petitioners submitted representations before the Secretary of the Corporation stating that they intend to engage a lawyer to represent them in the proceedings and that they are unable to do so on account of COVID-19 pandemic. The prayer made by the petitioners, in the circumstances, before the Secretary of the Corporation was to grant them two months’ time to engage a lawyer to represent them in the proceedings before the Secretary. The Secretary of the Corporation did not heed to the request made by the petitioners and proceeded to submit the report to the Corporation as directed in Ext.P3 judgment. The petitioners were, thereupon, issued Ext.P6 notice for hearing before the Mayor of the Corporation as directed in Ext.P3 judgment. The petitioners appeared before the Mayor on 16.09.2020 for hearing. Thereafter, the matter was placed by the Mayor before the Council of the Corporation as directed in Ext.P3 judgment and the Council affirmed the decision of the Corporation in not renewing the licences granted to the petitioners. Ext.P9 is the notice issued by the Secretary of the Corporation to the petitioners in this regard. Thereafter, the Secretary of the Corporation issued Ext.P10 notice also, calling upon the petitioners to remove the bunk shops occupied by them. Exts.P9 and P10 are under challenge in the writ petition. 3. A statement has been filed on behalf of the Corporation in the matter. It is stated by the Corporation in the statement that the petitioners could not be afforded time sought for by them, in the light of the time limit fixed by this Court for completing the enquiry directed to be made by the Secretary. As regards the right of the Corporation to seek removal of the bunk shops, it is stated in the statement that in terms of the agreements entered into by the Corporation with the petitioners, the Corporation is entitled to terminate the licence arrangements, if the place where the bunk shops are erected is required for a public purpose. 4. Heard the learned counsel for the petitioners as also the learned Standing Counsel for the Corporation. 5.
4. Heard the learned counsel for the petitioners as also the learned Standing Counsel for the Corporation. 5. The learned counsel for the petitioners contended that having regard to the directions issued by this Court in Ext.P3 judgment, the request made by the petitioners for legal assistance should have been allowed by the Secretary of the Corporation and they should have been granted an opportunity to put forward their contentions effectively. It was also contended by the learned counsel that the petitioners were not issued a copy of the report of enquiry stated to have been submitted by the secretary before the Council of the Corporation as directed in Ext.P3 judgment. According to the learned counsel, the impugned notices, in the circumstances, are to be treated as notices issued violating the directions contained in Ext.P3 judgment and they are, therefore, liable to be set aside on that sole ground. As regards the merit of the matters, it was argued by the learned counsel that the right to life guaranteed to the petitioners under Article 21 of the Constitution includes right to livelihood also and the impugned notices which deprive the petitioners their right to livelihood violates the fundamental right guaranteed to them under Article 21 of the Constitution. It was also argued by the learned counsel that the impugned notices infringe the fundamental right guaranteed to the petitioners under Article 19(1)(g) of the Constitution as well. The learned counsel for the petitioners placed reliance on the decision of the Apex Court in Olga Tellis and Ors v. Bombay Municipal Corporation and Ors, (1985) 3 SCC 545 , in support of his argument. 6. Per contra, the learned Standing Counsel for the Corporation reiterated the stand taken by the Corporation in the statement. It was, however, conceded by the learned Standing Counsel that there was an omission on the part of the Secretary of the Corporation in providing a copy of the report directed to be placed before the Council in terms of Ext.P3 Judgment, to the petitioners. According to the learned Standing Counsel, it was an inadvertent omission on the part of the Secretary of the Corporation.
According to the learned Standing Counsel, it was an inadvertent omission on the part of the Secretary of the Corporation. It was pointed out by the learned Standing Counsel that as there was omission on the part of the Secretary of the Corporation in providing a copy of the report to the petitioners, the report is produced along with the statement filed in these matters. 7. I have considered the arguments advanced by the learned counsel for the parties on either side. It is seen that in terms of Ext.P3 judgment, this Court permitted the petitioners to make written submissions as regards their grievance before the Corporation within a time limit. The petitioners have admittedly not preferred the written submissions as permitted by this court. In terms of Ext.P3 judgment, this Court directed the Secretary of the Corporation to conclude the enquiry directed to be made, within two weeks from the date of receipt of a copy of the judgment, after affording the petitioners an opportunity of hearing. As noted, the petitioners have not raised their grievance before the Secretary in the enquiry conducted pursuant to Ext.P3 judgment. Instead, the petitioners only prayed for two months’ time to engage a lawyer in the enquiry before the Secretary. First of all, in a matter like this, one cannot claim that he should be represented through a lawyer, as a matter of right. Further, as contended by the Corporation, in terms of Ext.P3 judgment, the Secretary had to conclude the enquiry within two weeks from the date of receipt of a copy of the judgment. As such, the Secretary could not have heeded to the request made by the petitioners. Further, it is seen that in the hearing held by the Mayor thereupon also, the petitioners were stressing on their request to engage a lawyer and were not focussing on their grievance. In the said circumstances, the Corporation Council cannot be blamed for having affirmed the decision of the Secretary in not extending the licence issued to the petitioners. True, despite the specific direction issued by this Court, copy of the report directed to be placed before the Council by the Secretary has not been provided to the petitioners. Should the matter be remitted to the Corporation on that sole ground, is the point remains to be considered. 8.
True, despite the specific direction issued by this Court, copy of the report directed to be placed before the Council by the Secretary has not been provided to the petitioners. Should the matter be remitted to the Corporation on that sole ground, is the point remains to be considered. 8. It seen from the statement filed in these matters on behalf of the Corporation that the place where the bunk shops occupied by the petitioners are erected is required for the Corporation to establish a multilevel car parking facility for the general public in a busy road within the Corporation. The petitioners do not dispute the said fact. It is specifically stated by the Corporation in the statement that the Corporation has already entered into an agreement with a third party for establishing the multilevel car parking facility, and in terms of the agreement entered into by the Corporation with the third party, the work of the multilevel car parking needs to be completed on or before 31.03.2021. In the said circumstances, according to me, since the petitioners do not have a prima facie case to claim renewal of the licence granted to them, remitting the matter to the Corporation for reconsideration of the claim of the petitioners would affect public interest adversely. 9. I shall now examine the question as to whether the petitioners have made out a prima facie case for renewal of the licences granted to them. The fact that the petitioners were permitted to run the bunk shops on a licence arrangement is not in dispute. Admittedly, the term of the licences granted to the petitioners expired on 31.03.2020 and consequently, the licences granted to the petitioners stand terminated by efflux of time. If licensees do not vacate the licensed premises after the termination of the licence, they are, in law, trespassers in the licensed premises and the licensor is entitled to remove them from the licensed premises. Further, in the statement filed by the Corporation, it was asserted that in terms of the licence arrangement entered into by the petitioners with the Corporation, the Corporation had, in fact, reserved the right to revoke the licenses granted to them if the place where the bunk shops are erected is required for a public purpose.
Further, in the statement filed by the Corporation, it was asserted that in terms of the licence arrangement entered into by the petitioners with the Corporation, the Corporation had, in fact, reserved the right to revoke the licenses granted to them if the place where the bunk shops are erected is required for a public purpose. Paragraph 7 of the statement filed by the Corporation dealing with the said stand reads thus: “At the time of granting Bunk licence to the petitioner, an agreement was also executed by the petitioner in which there was a condition that, the Corporation will have the right to cancel the licence of the petitioner at any time after giving notice to the petitioner, when the said bunk is required for any public purpose or for the purpose of the corporation itself.” The petitioners have not controverted the aforesaid statement. If so, the licences could have been terminated and the petitioners could have been removed from the place even during the currency of the licences. 10. There is no substance in the argument advanced by the learned counsel for the petitioners relying on Article 19(l)(g) of the Constitution, for the said right is subject to the provisions of clause (b) of that Article, which provides that nothing in sub-clause (g) of Article 19(1) shall affect the operation of any existing law insofar as it imposes, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause. In Sodan Singh and Ors v. New Delhi Municipal Committee and Ors, (1989) 4 SCC 155 , distinguishing the decision in Olga Tellis, the Apex Court held that Article 21 is not attracted in a case of trade or business, either big or small. The relevant passage of the judgment of the Apex Court in that case reads thus: "We do not find any merit in the argument founded on Article 21 of the Constitution. In our opinion Article 21 is not attracted in a case of trade or business — either big or small. The right to carry on any trade or business and the concept of life and personal liberty within Article 21 are too remote to be connected together. The case of Olga Tellis v. Bombay Municipal Corporation heavily relied upon on behalf of the petitioners, is clearly distinguishable.
The right to carry on any trade or business and the concept of life and personal liberty within Article 21 are too remote to be connected together. The case of Olga Tellis v. Bombay Municipal Corporation heavily relied upon on behalf of the petitioners, is clearly distinguishable. The petitioners in that case were very poor persons who had made pavements their homes existing in the midst of filth and squalor, which had to be seen to be believed. Rabid dogs in search of stinking meat and cats in search of hungry rats kept them company. They cooked and slept where they eased, for no conveniences were available to them. Their daughters, coming of age, bathed under the nosy gaze of passers-by, unmindful of the feminine sense of bashfulness. They had to stay on the pavements, so that they could get odd jobs in the city. It was not a case of a business of selling articles after investing some capital, howsoever meagre". In the context of the arguments advanced by the learned counsel for the petitioners that the impugned notices are vitiated by non-compliance of the principles of natural justice as the petitioners were not provided a copy of the report submitted by the secretary of the Corporation to the Council of the Corporation, it is worth referring to the decision of the Apex Court in Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan and Others, (1997) 11 SCC 121 , the relevant passage of which reads thus: “The Constitution does not put an absolute embargo on the deprivation of life or personal liberty but such a deprivation must be according to the procedure, in the given circumstances, fair and reasonable. To become fair, just and reasonable, it would not be enough that the procedure prescribed in law is a formality. It must be pragmatic and realistic to meet the given fact-situation. No inflexible rule of hearing and due application of mind can be insisted upon in every or all cases. Each case depends upon its own backdrop.” In the aforesaid circumstances, the writ petitions are devoid of merits and the same are, accordingly, dismissed.