IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 11TH FEBRUARY 2010 / 22ND MAGHA 1931 WP(C).No. 21054 of 2009(B) -------------------------------------- PETITIONERS: --------------------- 1. P.VISWANATHA MENON, MUNICIPAL COUNCILLOR, PANKAJ, KATAVATH, KATAVATH ROAD, N.PARAVUR. 2. P.GOPALAKRISHNAN NAIR, S/O. PADMANABHAN PILLAI, ANANDA BHAVANAM, PARAVUR THARA MURI, MANNOM P.O., PARAVUR VILLAGE, WARD NO.IX, N.PARAVUR. BY ADVS. MR.K.RAVEENDRAN, MR.ANIL KUMAR M.SIVARAMAN. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHAIRMAN, MUNICIPAL COUNCIL, PARAVUR MUNICIPALITY, N.PARAVUR. 3. THE SECRETARY, N.PARAVUR MUNICIPALITY, N.PARAVUR. 4. THE NORTH PARAVUR MUNICIPALITY, REPRESENTED BY THE SECRETARY, MUNICIPAL OFFICE, N.PARAVUR. R1 BY GOVT. PLEADER MR. V. MANU, R2 TO R4 BY ADV. MR.T.A.SHAJI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/02/2010, ALONG WITH W.P.(C). NO. 33262 OF 2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.21054/2009-B: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE RELEVANT PORTION OF THE PREFACE AND THE SPEECH BY THE VICE CHAIRMAN DTD. 24/03/2009. EXT.P.2: COPY OF THE LETTER DTD. 07/04/2008. EXT.P.3: COPY OF THE NOTICE OF THE MEETING ISSUED FROM MUNICIPAL COUNCIL, N. PARAVUR DTD. 28/07/09. EXT.P.4: COPY OF THE LETTER WITH THE LIST ISSUED BY THE INFORMATION OFFICER AS PW1 – 10992/08 DTD. 14/08/2008. EXT.P.5: COPY OF THE AGENDA DTD. 03/07/2007. EXT.P.6: COPY OF THE AMENDED BUDGET INTRODUCED IN THE COUNCIL FOR THE YEAR 2009-2010 CONTAINS THE PROPOSALS FOR THE DEVELOPMENT PROGRAMMES. EXT.P.7: COPY OF THE ORDER OF THE KERALA GOVERNMENT (ORD) 1727/2009/LOCAL SELF GOVERNMENT (RC) DTD. 13/07/2009. EXT.P.8: COPY OF THE NOTICE FOR THE MEETING OF THE COUNCIL TO BE HELD ON 28/07/2009 ISSUED ON 23/07/2009. EXT.P.9: COPY OF THE PROCEEDINGS OF THE COUNCIL DTD. 28/07/2009. EXT.P.10: COPY OF THE PROTEST NOTE TO THE MINUTES FILED BY PETITIONER & 9 OPPOSITION COUNCILORS. EXT.P.11: RECENT PHOTOGRAPH OF THE PARK. RESPONDENTS' EXHIBITS: EXT.R2.A: COPY OF THE G.O.(MS).NO.31/96/ID DTD. 07/02/1996. EXT.R2.B: COPY OF THE G.O.(MS).NO.298/2004/LSGD DTD. 13/10/2004. EXT.R2.C: COPY OF THE NOTIFICATION PUBLISHED IN DESHABHIMANI DAILY IN ITS ISSUE DTD. 15/07/2008. EXT.R2.D: COPY OF THE NOTIFICATION PUBLISHED IN MATHRUBHUMI DAILY IN ITS ISSUE DTD. 15/07/2008. EXT.R2.E: COPY OF THE NOTICE OF THE MEETING DTD. 22/01/2009 ALONG WITH THE MINUTES OF THE MEETING HELD ON 30/01/2009. EXT.R2.F: COPY OF THE G.O.(RT).NO.292/2003/LSGD DTD. 23/01/2003. EXT.R2.G: COPY OF THE MINUTES OF THE MEETING HELD ON 28/04/2009. EXT.R2.H: COPY OF THE G.O.(MS).NO.131/09/LSGD DTD. 15/07/2009. W.P.(C). NO.21054/2009-B: EXT.R2.I: COPY OF THE LETTER DTD. 21/05/2009 ADDRESSED TO THE MANAGING DIRECTOR ICICI-KINFRA. EXT.R2.J: COPY OF THE RESOLUTION NO.15 DTD. 28/07/2009. //TRUE COPY// P.S. TO JUDGE. Prv. ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.21054 OF 2009 (B) -------------------------------------------------- Dated this the 11th day of February, 2010 J U D G M E N T Petitioners are Councilors of the 3rd respondent Municipality. In this writ petition the prayers are as follows; “Issue a writ of certiorari or any other appropriate writ, direction or order and set aside the alleged permission or sanction, granted by the Government to the North Paravur Municipality for transfer and alienation of the Public Park extending to 57 cents near the Town Hall for construction of a commercial complex and car park to planet Homes and Villas, Kannur a private developer as a self financing basis and prohibit the other respondents from proceeding with the proposed long term lease of 40 years and grant such other or further reliefs in the interest of justice. ii. Issue a writ of mandamus or any other appropriate writ, direction or order commanding the respondents to dispose of Ext.P2 representation and commanding them not to proceed with the proposal and attempt to grant the long lease for 40 years to the Planet Homes. The project of construction of commercial complex and car park on a self-financing basis.” 2. Briefly stated the facts are that the respondent Municipality owns certain extent of property where the existing library building is located. According to the Municipality, the library building is in a dilapidated condition and it needs reconstruction. At the same time WPC.No. 21054/09 :2 : Municipality also wanted to find out additional accommodation for its administrative office. In the above situation Municipality thought of ways and means to construct a building in the aforesaid property, which is sated to be situated opposite to the existing Municipal office. Having regard to the limited sources of capital available, Municipality decided to frame a scheme with public and private participation under a BOT arrangement. 3. It is stated that the Government of Kerala had formed a joint venture company by Ext.R2(a) called I-KIN. By Ext.R2(b) the Government had also framed guidelines to be followed by the Local Self Government Institutions for development project before utilizing Government funds. By yet another Government order dated 13.10. 2004 the Government had framed guidelines for private sector participation in the execution of projects by Local Self Government Institutions. This included implementation of projects on BOT basis as well. 4. It is stated that the Municipality by resolution dated 24.3.2008, resolved to entrust I-KIN to prepare a detailed project for a Library cum office and shopping complex in order to submit the project to the Government for its approval. Accordingly a project WPC.No. 21054/09 :3 : report dated 11.6.2008 was prepared and presented to the Municipal Council in the meeting held on 17.6.2008. The matter was deferred for consideration to 20.6.2008, on which date the Municipal council resolved to invite bids from private parties. 5. Accordingly Exts.R2(c) and (d) newspaper notifications were published inviting bids and in response thereto, three parties showed interest and purchased tender documents. Among the three, two firms, viz M/s. Plannet Homes and Villas and M/s. Malabar Constructions Pvt. Ltd. Kalpetta submitted their bids. Of the two, it would appear that the bid submitted by M/s. Plannet Homes and Villas was found to be very attractive to the Municipality. Accordingly, negotiations were held and modifications were made to the proposal of M/s. Plannet Homes and Villas. It is stated that modified proposal of M/s. Planet Homes was approved by Municipal Council in the meeting held on 3.1.2009 and it was resolved to submit it for approval to the Government. Subsequently again meeting was held on 13.1.2009 and it was resolved to go ahead with the proposal. 6. It is stated that further negotiations were also held with M/s. Planet Homes and Villas when the transfer agreement period WPC.No. 21054/09 :4 : was reduced from 40 years to 34 years. As already resolved by the Council, on 11.2.2009 the proposal was forwarded to the Government for approval by the BOT cell of the Government which was constituted in terms of Ext.R2(f) Government Order. It is stated that accordingly BOT cell considered the matter, the minutes of which is Ext.R2(g) and by order dated 15.7.2009 conveyed its approval to the proposal. It is stated that based on all the above steps, it is stated that the developments were placed before the Council of the Municipality and by Ext.R2(j) resolution dated 28.7.2009, it was resolved to execute a concessional agreement with M/s. Planet Homes and Villas. It is at that stage, that this writ petition has been filed. 7. The main contention raised by the counsel for the petitioners is that, the resolution of the Municipality and the approval granted by the Government is to grant lease of the properties, which is impermissible in terms of the provisions contained in the Kerala Municipality Act. This contention of the learned Counsel for the petitioners need not deter this court any further for the reason that in Ext.R2(h) order it has been made clear that the word “lease and lessee” in the concession agreement should WPC.No. 21054/09 :5 : be substituted as “licence and licensee”. Therefore, what is proposed to be granted is only licence and the petitioners have no case that the Municipality is incompetent to grant licence in respect of its creditors. 8. The other contention that was seriously urged by the learned counsel for the petitioners is that, if at all the Municipality is to execute any project, the Municipality can execute either by itself or by awarding contract. It was contended that arrangement as the one proposed to be done by the Municipality, viz the BOT arrangement is not contemplated or permitted by the Kerala Municipality Act and therefore is illegal. Although, it is true that under Section 215 the Municipality has been given power to acquire and dispose of properties, there is no specific provision in the Kerala Municipalities Act enabling Municipality to enter into BOT agreement and implement the project as one proposed to be done by the Municipality. However, as rightly pointed out by the counsel for the petitioners with the passage of time and with the extension in the area of operation of the Municipality, it is permissible to local authorities like Municipality to enter into such arrangement and implement development projects. It is brought to my notice that WPC.No. 21054/09 :6 : the Apex Court had occasion to consider as issue identical to the one raised in this writ petition, in the judgment in G.B. Mahajan and Others V. The Jalgaon Municipal Council and ors.( AIR 1991 SC 1153). In that judgment, the Apex Court held as follows; “As to the contention of an impermissible delegation of power to the developer Sri. Singhvi would say that the occupancy rights in respect of certain portions of the commercial complex were granted to the developer in lieu of the monetary outlay that he would make on the project and that the fact that the developer in respect of such accommodation was enabled to induct his nominees would not, in principle, detract from the character of the transaction as long as the Municipal Council, in turn, recognized such nominees as grantees of the occupancy. On a consideration of the matter it appears to us that the appellants have not been able to establish that the essential elements of the transaction are such that Section 92 of the Act is violated. It would, indeed, be unduly restrictive of the statutory powers of the local authority if a provision enabling the establishment of markets and disposal of occupancy-rights therein are hedged in by restrictions not found in the statute. The point to note is that the developer too the extent he is authorized to induct occupiers in respect of the area earmarked for him merely exercises, with the consent of the Municipal Council, a power to substitute an occupier in his own place. This is not impermissible when it is with the express consent of the Municipal Council.” WPC.No. 21054/09 :7 : 9. In the light of the aforesaid legal position as laid down by the Apex Court I am not persuaded to agree with the learned counsel for the petitioners. The 3rd contention that was raised by the counsel for the petitioners is that if at all licence is permissible, the period of licence cannot be more than 3 years as provided in Section 472 of the Act. However it is to be noticed that in the Mahajan's case also the agreement was for a period of 50 years where as the statute provides that licence can only be for 3 years. It is in spite of that statutory prescription, the Apex Court held that it is permissible for the period agreed between the parties. In the light of this that contention also has to fail. Therefore I find any merit in the writ petition. Writ Petition fails and is dismissed. (ANTONY DOMINIC) JUDGE vi/