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2020 Supreme(Ker) 988
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.B.SURESH KUMAR, J.
Jabir P.K., S/o. Hameed and Ors - Appellant
Versus
The State of Kerala Represented By Its Secretary, Local Self Government Department, Kerala Government Secretariat, Thiruvananthapuram and Ors - Respondent
W.P.(C) Nos.20590 & 20634 of 2020
Decided On : 28-10-2020
Advocate Appeared:
For the Appellant : Sri.A.C.Venugopal Adv.
For the Respondent: Smt.M.Meena John Adv.
Point of Law: Allotment of bunk shops - Licences - At time of granting Bunk licence to petitioner, an agreement was also executed by petitioner in which there was a condition that, Corporation will have right to cancel licence of petitioner at any time after giving notice to petitioner, when said bunk is required for any public purpose or for purpose of corporation itself
Headnote:
Agreement – Allotment of bunk - Renewal of licences - Whether petitioners have made out a prima facie case for renewal of licences granted to them – At time of granting Bunk licence to petitioner, an agreement was also executed by petitioner in which there was a condition that, Corporation will have right to cancel licence of petitioner at any time after giving notice to petitioner, when said bunk is required for any public purpose or for purpose of corporation itself - Petitioners are two among the allottees of bunk shops by Kannur Municipal Corporation (Corporation) at a place called Peethambara Park. Allotment of bunk shops to petitioners were on licence arrangement. Arrangement had to be renewed on completion of every three years. Term of latest licences entered into between petitioners and Corporation expired. Though petitioners preferred applications for renewal of licences, the same were not considered by the Corporation. While so petitioners were issued notice by Secretary of Corporation informing them that Corporation proposes to establish a multilevel car parking facility at place where the bunk shops are erected and directing petitioners to remove the movables in the bunk shops and return the keys of the bunk shops to Corporation.
Finding of the court: 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 - 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
Result: Writ petitions dismissed
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 Corpora
