IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 11TH JUNE 2008 / 21ST JYAISHTA 1930 WP(C).No. 29266 of 2007(H) -------------------------------------- PETITIONER: ------------------ 1. THE SECRETARY, KOZHIKODE CORPORATION, KOZHIKODE. 2. THE HEALTH OFFICER, KOZHIKODE CORPORATION, KOZHIKODE. BY ADV. SRI.P.V.KUNHIKRISHNAN,SC,KOZHIKODE CORP RESPONDENTS: ---------------------- 1. T.SASIDHARAN, PARAMBATHUPARAMBIL VEEDU, PEOPLES ROAD, WEST HILL, KOZHIKODE. 2. T.JAYARAJAN, JASNA, 1/3361-B, ALIYAR VAYAL, WEST HILL, KOZHIKODE. 3. OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS, REP.BY ITS SECRETARY, THIRUVANANTHAPURAM. 4. THE REGIONAL JOINT DIRECTOR OF URBAN AFFAIRS, KOZHIKODE. BY GOVERNMENT PLEADER SRI. K.V.MANOJKUMAR ADV. SRI.PHILIP ANTONY CHACKO - R1-2 SRI.M.R.MOUNEESH - R1-2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/06/2008, ALONG WITH WPC NO. 6265 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).29266/2007-H APPENDIX PETITIONER'S EXHIBITS: EXT.P1:- COPY LICENCE ENTERED BETWEEN CORPORATION AND THE 1ST RESPONDENT DATED 28/03/2001. EXT.P2:- COPY OF THE LICENCE AGREEMENT EXECUTED BETWEEN THE CORPORATION AND THE 2ND RESPONDENT DATED 28/03/2001. EXT.P3:- COPY OF THE DECISION NO.9 DATED 05/09/2001 OF THE PERMANENT SAMITHY OF HEALTH AND EDUCATION F8/88311/2001. EXT.P4:- COPY OF THE DECISION NO.30 DATED 10/10/2001 OF THE PERMANENT FINANCE SAMITHY. EXT.P5:- COPY OF THE DECISION NO.52 DATED 22/10/2001 KOZHIKODE CORPORATION. EXT.P6:- COPY OF THE NOTICE RECEIVED FROM HON'BLE OMBUDSMAN DATED 22/02/2005. EXT.P7:- COPY OF THE REPORT SUBMITTED BY THE CORPORATION TO THE HON'BLE OMBUDSMAN F8/25932/05 DATED 02/03/2005. EXT.P8:- COPY OF THE ORDER IN O.P.905/04 OF THE HON'BLE OMBUDSMAN DATED 26/05/2005. EXT.P9:- COPY OF THE NOTICE NO.F33-18966/98 DATED 06/06/2005 ISSUED TO THE 2ND RESPONDENT BY THE CORPORATION. EXT.P10:-COPY OF THE WRIT PETITION IN W.P.(C).NO.17508/2005 BEFORE THIS HON'BLE COURT FILED BY RESPONDENT 1 AND 2 DATED 09/06/2005 WITH EXTS. EXT.P11:-COPY OF THE JUDGMENT IN W.P.(C).NO.17508/2005 BEFORE THE HON'BLE HIGH COURT OF KERALA. EXT.P12:-COPY OF THE COMPLAINT FILED BY THE RESPONDENT NO.1 AND 2 DATED 28/06/2005 BEFORE THE HON'BLE OMBUDSMAN. EXT.P13:-COPY OF THE REPORT FILED BEFORE THE HON'BLE OMBUDSMAN DATED 07/10/2005. EXT.P14:-COPY OF THE ORDER DATED 30/10/2005 IN O.P.635/05 AND 649/05 OF THE HON'BLE OMBUDSMAN. EXT.P15:-COPY OF THE C.M.P.NO.20/2006 IN O.P.649/05 DATED 25/02/2006 FILED BY THE 1ST RESPONDENT. EXT.P16:-COPY OF THE C.M.P.NO.18/2006 IN O.P.635/2005 FILED BY THE 2ND RESPONDENT DATED 25/02/2006. W.P.(C).29266/2007-H EXT.P17:-COPY OF THE REPORT SUBMITTED BY THE CORPORATION BEFORE THE HON'BLE OMBUDSMAN DATED 28/08/2006. EXT.P18:-COPY OF THE ORDER NO.A33-18965/92 DATED 22/09/2006 OF THE CORPORATION. EXT.P19:-COPY OF THE STATEMENT FILED BY CORPORATION F33-18966/92 DATED 23/09/2006. EXT.P20:-COPY OF THE STATEMENT FILED ON 02/01/2007. EXT.P21:-COPY OF THE REPRESENTATIONS RECEIVED FROM THE 1ST RESPONDENT DATED 09/03/2007. EXT.P22:-COPY OF THE REPRESENTATIONS RECEIVED FROM THE 2ND RESPONDENT DATED 09/03/2007. EXT.P23:-COPY OF THE LETTER DATED 13/11/2006 FROM THE REVENUE OFFICER TO THE CORPORATION. EXT.P24:-COPY OF THE AFFIDAVIT FILED BY THE CORPORATION BEFORE THE HON'BLE OMBUDSMAN DATED 22/03/2007 IN O.P.635/05, 649/05. EXT.P25:-COPY OF THE REPORT DATED 10/04/2007 OF THE REGIONAL JOINT DIRECTOR OF URBAN AFFAIRS KOZHIKODE. EXT.P26:-COPY OF THE COMMON ORDER DATED 17/05/2007 OF THE HON'BLE OMBUDSMAN IN C.M.P.NO.18/2006 IN O.P.NO.635/2005 & C.M.P.NO.20/2006 IN O.P.NO.649/2005. RESPONDENT'S EXHIBITS: EXT.R1-1:- COPY OF THE PHOTOGRAPH DATED NIL OF THE VEGETABLE SHOP ROOM OF THE 1ST RESPONDENT AND STATIONARY SHOP OF THE 2ND RESPONDENT SHOWING THE MULTISTORIED BUILDING AND ROYAL CLINIC BEHIND IT. EXT.R1-2:- COPY OF THE PHOTOGRAPH DATED NIL SHOWING THE DEMOLISHING OF RESPONDENTS SHOP ROOMS WITH JCB DONE BY THE OFFICERS BELOW THE 1ST AND 2ND RESPONDENTS. EXT.R1-3:- COPY OF THE COUNTER AFFIDAVIT DATED 20/06/2005 IN W.P.(C). NO.17508/2005 OM BEHALF OF THE 10TH RESPONDENT THEREIN (THE 1ST PETITIONER HEREIN). EXT.R1-4:- COPY OF THE PETITION IN ANNEXURE FORM NO.A, DATED 28/06/2005 WITH THE ENDORSEMENT FOR RECEIVING NOTICE ON 29/06/2005 THE AFFIDAVIT AND PETITION FOR STAY DATED 28/06/2005 FILED ALONG WITH IT FOR STAY TILL THE DISPOSAL OF THE PETITION. W.P.(C).29266/2007-H EXT.R1-5:- COPY OF THAT ORDER DATED 28/07/2005 IN O.P.NO.630/2005 AND 635/2005 PASSED BY THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. EXT.R1-6:- COPY OF THE NOTICE DATED 02/01/2007 REGARDING THE ALLOTMENT OF TWO ROOMS FROM 1B/G12 TO 1B/G15, TO BE 1ST AND 2ND RESPONDENTS BY THE 1ST PETITIONER. EXT.R1-7(a), 7(b), 7(c), 7(d), 7(e) & 7(f):-COPY OF THE PHOTOGRAPH OF ENTRANCE TO THE INNER BLOCK OF MEAT MARKET IN CENTRAL MARKET AND ROOMS BEARING NUMBER 1B/G12, ITS INSIDE, 1B/G15, ITS INSIDE AND THE ADJACENT SHOP. EXT.R1-8:- COPY OF THE OBJECTION DATED NIL FILED BY THE 1ST AND 2ND RESPONDENTS BEFORE THE DEPUTY DIRECTOR OF PANCHAYATH'S, KOZHIKODE. EXT.R1-9:- COPY OF THE PROCEEDING DATED 12/03/2001 BY THE KOZHIKODE CORPORATION GIVING LICENSE TO THE 1ST RESPONDENT FROM 1998 TO 2001. EXT.R1-10:-COPY OF THE PROCEEDING DATED 12/03/2001 BY THE KOZHIKODE CORPORATION GIVING LICENSE TO THE 2ND RESPONDENT FROM 1998 TO 2001. EXT.R1-11:-COPY OF THE ORDER DATED 04/04/1987 ON BEHALF OF THE COMMISSIONER CORPORATION OF KOZHIKODE ISSUED TO THE 1ST RESPONDENT, PERMITTING HIM TO PUT UP A SHUTTER TO THE ROOM ON THE NORTHERN SIDE IN WEST HILL MARKET. EXT.R1-12(a), 12(b), 12(c) & 12(d):- COPY OF THE RECEIPTS ISSUED BY THE CORPORATION OF CALICUT FOR RECEIVING LICENSE FEES IN 1979 DATED 06/10/1979, IN 1980 DATED 09/09/1980, 1981 DATED 07/09/1981 AND 1982 DATED 06/02/1982. EXT.R1-13(a), & 13(b):- COPY OF THE RECEIPTS ISSUED BY THE CORPORATION OF CALICUT FOR RECEIVING LICENSE FEES IN 1982 DATED 10/08/1982 AND IN 1983 DATED 19/05/1983. EXT.R1-14:- COPY OF THE DEMAND NOTICE DATED 26/07/2007 FOR Rs.25,000/- AND ITS INTEREST ISSUED BY STATE BANK OF INDIA, RASMECCC, KALLAI HEIGHTS, KALLAI ROAD, CALICUT-3 TO THE 2ND RESPONDENT. EXT.R1-15:- COPY OF THE DEMAND NOTICE DATED 14/11/2007 FOR Rs.30,000/- AND ITS INTEREST ISSUED BY SOUTH MALABAR GRAMIN BANK, WEST HILL.P.O., KOZHIKODE TO THE 2ND RESPONDENT. EXT.R1-16:- COPY OF THE DEMAND NOTCIE DATED 21/12/2007 FOR Rs,.25,000/- AND ITS INTEREST ISSUED BY FEDERAL BANK LTD, NADAKKAVU, WEST BRANCH TO THE 2ND RESPONDENT. //TRUE COPY // Rs/ ANTONY DOMINIC, J. ------------------------------------ W.P.(C) 29266 of 2007 & 6265 of 2008 ------------------------------------- Dated: JUNE 11, 2008 JUDGMENT W.P.(C) 29266 of 2007 is filed by the Secretary of the Kozhikode Corporation seeking to quash Exts.P14 and P26 orders passed by the 3rd respondent. Respondents 1 and 2, who are the beneficiaries of the aforesaid order, have filed WP(C) 6265 of 2008 seeking implementation of the aforesaid two orders. Since the issues that are raised are common, these writ petitions are disposed of by this common judgment. 2. For the sake of convenience, I shall refer to the facts in W.P.(C) 29266 of 2007. Respondents 1 and 2 were granted Exts.P1 and P2 licences for vending vegetable and stationery articles in the market place owned by the petitioner Corporation. For reasons of its own, the Corporation passed Ext.P3 resolution to demolish the building and that decision was confirmed by the Finance Committee and the Council as per Exts.P4 and P5 resolutions. It is stated that while so, acting upon a complaint received by the 3rd respondent, WP(C) 29266 of 2007 & 6265 of 2008 2 alleging environmental pollution, O.P.No.905/2004 was registered in which notice was issued to the Corporation, which filed Ext.P7 report. The Ombudsman considered the matter and disposed of the same by Ext.P8 order, recording the submission of the Corporation that the market will be demolished, the OP was closed. It is stated that in pursuance to Exts.P3 to P5, as the licences were to be terminated, the Secretary issued Ext.P9 and similar notice to respondents 1 and 2. On receipt of the notice, respondents 1 and 2 approached this court and filed WP(C) 17508/2005, a copy of which is Ext.P10. A perusal of Ext.P10 shows that apart from the prayer for quashing Ext.P9 and similar notices, they also sought a declaration that the shop rooms cannot be demolished without providing alternate accommodation to them. It is seen that the Corporation filed Ex.R1(3) counter affidavit contesting the claim of respondents 1 and 2 and finally the writ petition was dismissed by Ext.P11 judgment confirming Ext.P9 and similar notices and also holding that respondents 1 and 2 were not entitled to any alternate accommodation as claimed by them. WP(C) 29266 of 2007 & 6265 of 2008 3 3. It is stated that despite the dismissal of the writ petition, respondents 1 and 2 filed Ext.P12 petition before the 3rd respondent praying for invalidating the notice which was already upheld by this court in Ext.P11. The Corporation contested the matter by filing Ext.P13 objection and in paragraph 2 thereof specific reference is seen made about the proceedings in WP(C) 17508/2005 and Ext.P11 judgment. However, the 3rd respondent passed Ext.P14 order holding that respondents 1 and 2 are entitled for legitimate compensation, as, according to it, the demolition of the market place which had taken place in the meanwhile was unauthorised. It was held that the petitioners may approach the Corporation for relief and the Corporation was further directed to consider their request for compensation and for rehabilitation. It is stated that on the strength of Ext.P14, respondents 1 and 2 applied for alternate accommodation and, complaining of inaction on their request, filed Exts.P15 and P16 interlocutory applications before the Ombudsman in which the Corporation filed Ext.P17 report. The Corporation has a case that despite Ext.P11 judgment upholding that they had no WP(C) 29266 of 2007 & 6265 of 2008 4 liability for providing alternative accommodation, still they offered alternative accommodation by Ext.P18. According to them, this was also informed to the Ombudsman by filing Ext.P19. However, as the offer made in Ext.P18 was not accepted, yet other rooms were offered to the respondents as mentioned in Ext.P20 report filed before the Ombudsman. 4. In spite of the offers so made, it is pointed out that the respondents 1 and 2 submitted Exts.P21 and 22 for allotment of comfort station in the Palayam vegetable market. The request so made is dated 9.3.2007. The Corporation contends for the position that the comfort station referred to above was already auctioned as early as in November 2006 and was confirmed to a successful bidder in January 2007. They are referring to Ext.P23 and also the averments in paragraph 7 of the writ petition in support of this contention. They also would contend that they had filed Ext.P24 affidavit before the Ombudsman explaining the factual position as above. It is stated that the factual position as averred in Ext.P24 was got verified by the Ombudsman and in Ext.P25 report WP(C) 29266 of 2007 & 6265 of 2008 5 submitted, the correctness of what was stated by the Corporation was affirmed before the Ombudsman. Despite all these, the Ombudsman passed Ext.P26 order finding fault with the Corporation in confirming the auction of the comfort station in the Palayam Vegetabale Market. It is held that the auction was held in undue haste to defeat the claim of respondents 1 and 2. On this basis, the Ombudsman estimated the damages suffered by respondents 1 and 2 and awarded Rs.1,26,000/- each and the Corporation is directed to pay the same. It is in this background, challenging Exts.P14 and P26, the writ petition has been filed. 5. I heard the learned counsel for the petitioner and also the learned counsel for respondents 1 and 2. 6. Although several questions have been raised by both sides, in my view, the issue can be resolved without getting into many of the controversial areas. As already noticed, when Ext.P9 notice was issued to respondents 1 and 2, they had filed a writ petition before this court as WP(C) 17508/2005 . In that writ petition they sought to get the notice quashed and also a declaration that they should be WP(C) 29266 of 2007 & 6265 of 2008 6 provided alternative accommodation before demolishing the shop rooms. The Corporation resisted the claims of the petitioner and filed Ext.R1(3) counter affidavit. The issue was considered and this court by Ext.P11 judgment dated 20th June, 2005, and dismissed that writ petition. In the judgment it has been held that there is nothing unreasonable in Ext.P9 notice which was produced as Ext.P3. It is also held that the petitioner's contention that the market cannot be dismantled without providing alternative accommodation is without substance since they were only licensees of the building of the Corporation. 7. Therefore, in the judgment, the notice was upheld and the Corporation was held entitled to demolish the building. If that be so, the prayers made by respondents 1 and 2 in Ext.P12 complaint which led to Ext.P14 order were already raised and rejected by this court. If that be so, this was an issue which could not have been again agitated before the Ombudsman. It is seen that the Corporation has raised this contention before the Ombudsman, but that issue has not engaged the attention of the Ombudsman. In my WP(C) 29266 of 2007 & 6265 of 2008 7 view, so long as Ext.P9 judgment stands unaltered, the fate of respondents 1 and 2 stands sealed by the directions issued in that judgment. For the very reason Ext.P26 order passed in Exts.P15 and P16 CMPs. filed in Ext.P12 petition, also cannot be sustained. 8. For these reasons Exts.P14 and P26 deserves to be set aside. I do so. Learned counsel for the petitioner submits that they propose to move a review/appeal against Ext.P11 judgment. I clarify that this judgment has been rendered wholly in view of Ext.P11 judgment and it will not in any manner affect the right, if any, of respondents 1 and 2 to seek review of the judgment or file an appeal against the said judgment, if it is permissible in law. In view of the judgment in WP(C) 29266 of 2007 quashing the impugned orders, WP(C) 6265 of 2008 is only to be dismissed and I do so. ANTONY DOMINIC, JUDGE mt/-