IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 8TH JUNE 2011 / 18TH JYAISHTA 1933 WP(C).No. 30238 of 2010(D) -------------------------- PETITIONER(S): --------------- K.A.SIYAD, JAFNA MANZIL, S.H.MOUNT P.O., KOTTAYAM. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SRI.SHUBHA ABRAHAM SMT.ASWATHY.N RESPONDENT(S): --------------- 1. KOTTAYAM MUNICIPALITY, MUNICIPAL OFFICE, KOTTAYAM-686001, REP. BY ITS SECRETARY. 2. THE SECRETARY, KOTTAYAM MUNICIPALITY, MUNICIPAL OFFICE, KOTTAYAM-686001. ADV. SRI.SIBY MATHEW FOR R1,2 SRI.PHILIP J.VETTICKATTU FOR R1,2 SRI.B.PREMNATH (E) FOR R1,2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 30238 of 2010(D) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE TENDER NOTICE PUBLISHED IN MALAYALA MANORAMA DATED 10.12.1990. EXT.P2: TRUE COPY OF DEED OF LICENCE EXECUTED BY THE PETITIONER AND RESPONDENTS DATED 1.1.1993. EXT.P3: TRUE COPY OF ORDER NO.R6-21015/90(1) ISSUED BY THE 2ND RESPONDENT DATED 28.11.1995. EXT.P4: TRUE COPY OF THE LETTER ISSUED BY THE PRINCIPAL SECRETARY TO GOVERNMENT TO THE 2ND RESPONDENT DATED 10.3.2010. EXT.P5: TRUE COPY OF THE REPORT NO.S.T.11/09/K.T.M. OF THE INSPECTOR, VIGILANCE AND ANTI-CORRUPTION BUREAU DATED 26.5.2009. EXT.P6: TRUE COPY OF THE NOTICE NO.R6-21015/90(1) ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DATED 2.6.2010. EXT.P7: TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 22.6.2010. EXT.P8: TRUE COPY OF THE WRITTEN HEARING NOTE SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED NIL. EXT.P9: TRUE COPY OF THE LETTER NO.G9-7191/10 ISSUED BY THE RESPONDENTS TO THE PETITIONER DATED 21.6.2010. EXT.P10: TRUE COPY OF THE ORDER NO.R6-21015/90(1) ISSUED BY THE 1ST RESPONDENT DATED 19.7.2010. EXT.P11: TRUE COPY OF THE LETTER NO.G9-11878/10 ISSUED BY THE RESPONDENT TO THE PETITIONER DATED 3.9.2010. TKS // TRUE COPY // P.S. TO JUDGE C.T.RAVIKUMAR, J. ---------------------------- W.P.(C)No.30238 of 2010 ---------------------------- Dated 8th June, 2011 JUDGMENT This writ petition has been filed mainly challenging Exts.P6 and P10. The further prayer of the petitioner is for issuance of a writ of mandamus commanding the respondents to renew the licence granted to him for use of the second floor of the building in the Municipal Vegetable Market at Kottayam originally given on licence as per Ext.P2 deed, on such enhanced licence fee as is found just and proper. 2. During the year 1990-91, as per Ext.P1, the respondent Municipality invited tenders for taking on licence a portion of the second floor of the building in Municipal Vegetable Market at Kottayam. The petitioner partook in the auction and being the highest bidder, on compliance with the requirements under law he was issued with Ext.P2 licence. Later, the petitioner submitted an application seeking permission for dividing the open area and making it into separate rooms. The said request of the petitioner was granted and accordingly, the petitioner divided the open space into 24 rooms, as is obvious from Ext.P3. Thereafter, the petitioner let out the said 24 rooms and all the said rooms are now occupied by some persons. Though such rooms were let out by the petitioner to such persons there is no pleading in this WP(C).No.30238/2010 2 writ petitin as to the purpose for which they were let out. At the same time, the learned counsel for the petitioner submits that, in fact, the occupants are not conducting any business in the said shop rooms. The learned counsel for the petitioner further submits that those rooms were let out to headload workers. Admittedly, the Sub Treasury was functioning in the first floor of the said building. The rate quoted by the petitioner was only Rs.7,121/- per month. Subsequently, taking into account the fact that the open space in question was divided into separate rooms and let out by the petitioner the respondents sought for enhancement of the licence fees. That was challenged by the petitioner in O.S.No.453 of 1994. The said suit was subsequently dismissed. While so, the Vigilance Department, received certain complaints against the petitioner and also regarding the low rate of rent fixed in respect of the said rooms and an enquiry made in the matter. After conducting the enquiry Ext.P5 report was submitted. Taking into account the recommendations in the said report that was forwarded to the respondents, the respondents decided to take appropriate action under the provisions of the Kerala Panchayat Raj (Acquisition and Disposal of Property) Rules, 2005 for enhancement of the licence fee. The period of licence originally granted to the petitioner and renewed from time to time WP(C).No.30238/2010 3 expired on 16.11.2008 and thereafter it was not renewed. The contention of the petitioner is that he has filed an application for renewal of the said licence. However, admittedly, the same was filed much after the expiry of the period. The respondents have already proposed to issue fresh tender notice for effecting auction of the said shop rooms. It was in the said circumstances that challenging Exts.P6 and P10 this writ petition has been filed. 3. A counter affidavit has been filed in this writ petition by the respondents. I have heard the learned counsel appearing for the petitioner and also the learned standing counsel for the respondents. 4. On the strength of Ext.P2 the petitioner got possession of 7000 sq.ft. in the second floor of the building in the Municipal Vegetable Market at Kottayam. Admittedly, the monthly rent fixed for the same was only Rs.7,121/-. Later, the open space was divided into 24 shop rooms and the petitioner let out the said rooms. According to the petitioner, the said rooms were let out to headload workers and coolie workers. Certain complaints received mainly regarding the low rate of rent fixed by the respondents led to Ext.P5 report by the Vigilance Department. Taking into account the recommendations therein the respondents initiated action under the provisions of the Kerala Panchayat WP(C).No.30238/2010 4 Raj (Acquisition and Disposal of Property) Rules, 2005 and it was also proposed to invite fresh tenders for the purpose of conducting auction of the 24 rooms. According to the petitioner, the said action on the part of the respondents is illegal and arbitrary and that if they want to have rent at enhanced rate, it will be open to them to make such demands. Further, according to the petitioner, the respondents have no authority to take a decision to disallow the petitioner to continue to occupy the said 24 rooms or to invite fresh tenders. I am at a loss to understand what exactly is the basis for such a contention. Admittedly, the 24 rooms which were in the possession of the petitioner belong to the Municipality. True that, on the strength of Ext.P2 the petitioner occupied the aforesaid space. The open space was let out after dividing it into 24 shop rooms and the said 24 rooms were let out by the petitioner. The Panchayat is getting only a monthly rent of Rs.7,121/- which was subsequently enhanced to Rs.8245/-. In other words, evidently, the petitioner continued to possess the said 24 rooms having an extent of 7000 sq.ft. on payment of a meagre amount of Rs.8,245/-. That was the situation that led to the lodging of certain complaints which ultimately culminated in Ext.P5 report. It was based on the recommendations in Ext.P5 report that the decision as is obvious from Ext.P10 has been WP(C).No.30238/2010 5 taken by the respondents. True that, as per the same, they have decided to dispossess the petitioner, in accordance with law, and to invite fresh tenders. Such an action on the part of the respondents cannot be said to be illegal or arbitrary. A third party cannot be permitted to illegally enrich utilising the property belonging to a Local Self Government Institution. The facts revealed from Ext.P5 report are disturbing. As already noticed, an extent of 7000 sq.ft. in the building belonging to the Municipality is being occupied by the petitioner by effecting a meagre payment of an amount of Rs.8,245/-. Ext.P10 would reveal that the respondents are proposing only to invite fresh tenders. In case they invite such fresh tenders, it will also be open to the petitioner to respond to the same. Necessarily, the rooms in question could be allotted only to the highest bidders. The action on the part of the respondents to effect such auction cannot be said to be illegal and in fact, they are bound to take such action in terms of Ext.P5 and in accordance with law. Admittedly, all the 24 rooms were now let out and the petitioner now receiving the rent from the occupants despite the expiry of the period and without renewal of the licence. It is taking note of the said circumstances this Court by order dated 1.10.2010 restrained the respondents from letting out or entrusting the disputed rooms to WP(C).No.30238/2010 6 any other persons. Taking into consideration of the aforesaid circumstances, I am of the view that the respondents shall be permitted to go with their decision to invite fresh tenders and to take further action, in accordance with law. It is made clear that it will be open to the petitioner to respond to the same and take part in the auction. I do not find any reason to interfere with Ext.P6 or P10 in view of the facts and circumstances obtained in this case and also revealed from Ext.P5 report. This writ petition is devoid of any merit and accordingly, it is dismissed subject to the above observations. Sd/- C.T.RAVIKUMAR Judge TKS