IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 2ND JUNE 2010 / 12TH JYAISTHA 1932 WP(C).No. 23915 of 2009(H) -------------------------------------- PETITIONERS: --------------------- 1. P.C.SIMON,AGED 60 YEARS, S/O.LATE SHRICHAKKAPPAN,POOVATHINKAL HOUSE, MAVELI NAGAR,KURIACHIRA.P.O,THRISSUR. 2. C.P.BABY,AGED 42 YEARS, S/O.LATE C.K.PORINJU,CHOONDI HOUSE,CHALISSERY ANGADY,KURIACHIRA.P.O,THRISSUR. 3. P.J.JOY,AGED 46 YEARS, S/O.LATE P.C.JOSE,POOVATHINKAL HOUSE, OYSTER AVENUE,NELLIKKUNNU,THRISSUR. BY ADV. SRI.P.PUSHPARAJAN SRI.O.K.MURALEEDHARAN RESPONDENTS: -------------------- 1. THE SECRETARY,THRISSUR MUNICIPAL CORPORATION,THRISSUR. 2. THE THRISSUR MUNICIPAL CORPORATION, REPRESENTED BY ITS SECRETARY MUNICIPAL BUILDINGS, THRISSUR. ADV. SRI.K.B.MOHANDAS,SC,THRISSUR CORPORATIO FOR R1&2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/06/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 23915 of 2009(H) APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1: TRUE COPY OF THE RESOLUTION. EXHIBIT P2: A TRUE COPY OF THE NOTICE DATED 15/11/2000. EXHIBIT P3: A TRUE COPY OF THE RESOLUTION DATED 20/11/2000. EXHIBIT P4: A TRUE COPY OF THE JUDGMENT IN O.P.NO.700/2001. EXHIBIT P5: A TRUE COPY OF THE JUDGMENT IN W.P(C) NO.10761/2004. EXHIBIT P6: A TRUE COPY OF THE NOTICE DATED 3/6/2006. EXHIBIT P7: TRUE COPY OF SEC.4(1) NOTIFICATION. EXHIBIT P8: TRUE COPY OF THE LETTER ISSUED BY CIVIL ENGINEER CERTIFYING THE DAMAGE. EXHIBIT P9: TRUE COPY OF THE LICENSE FOR CONDUCTING THE SHOP ISSUED TO FATHER OF THE 3RD PETITIONER. EXHIBIT P10: TRUE COPY OF THE RECEIPT DATED 4/7/1991 ISSUED TO THE FATHER OF 2ND PETITIONER. EXHIBIT P11 & P11(a): TRUE COPIES OF THE PROFESSIONAL TAX PAID BY 1ST PETITIONER. /TRUE COPY/ P.A.TO JUDGE scm K.T. SANKARAN, J. --------------------------- W.P(C).No.23915 of 2009 --------------------------------------- Dated this the 2nd day of June, 2010 J U D G M E N T This Writ Petition relates to a dispute between certain traders in old Pattalam Market in Thrissur Town and the Municipal Corporation. The litigation between them started in 2001. Two Writ Petitions were filed before the High Court by the first petitioner. Directions were issued by the Court. Those directions were not fully complied with. Even now, no final decision is taken by the Thrissur Municipal Corporation. In the present Writ Petition, certain reliefs are prayed for. The Writ Petition does not contain correct facts. The counter affidavit and reply affidavit do not supply the full facts. Nobody is aware of the correct facts. Even in the decision of the Municipality, the correct facts are not disclosed. Still, the dispute is pending. 2. The petitioners and others were doing business in the old Pattalam Market in Thrissur Town. It is stated that the business in the shop rooms were established years ago by the predecessors of the petitioners and others. While so, there was a proposal for expansion of the Pattalam Road by acquiring land. W.P(C).No.23915/2009 2 The Thrissur Municipality decided to acquire a portion of the Pattalam Road Market for widening the road. A scheme for rehabilitation of the traders was formulated by the Municipality. The Municipality decided to establish a new market in the Sakthan Tampuran Nagar, near the new bus stand. It would appear that a notification was issued for the acquisition of additional land for widening the Pattalam Road Market. By such acquisition, the petitioners and nine others would have been affected, as the building in which they were conducting trade would have been taken by acquisition. However, the proposal for acquisition was dropped and it is stated that no notification was issued for the acquisition of additional extent of land. As per the scheme of rehabilitation, the affected traders were rehabilitated in the building constructed by the Municipality. The stand taken by the Municipality was that the petitioners and 9 others were not affected by the widening of the road. There was no necessity to rehabilitate them. However, the substantial portion of the market was shifted and the Municipality was thinking of acquiring additional extent of land. As per Exhibit P1 resolution taken on W.P(C).No.23915/2009 3 6/9/2000, the Municipal Council resolved to rehabilitate the petitioners and others. In Exhibit P1 resolution, it was also made clear that after the finalisation of the acquisition, there would be no rehabilitation. 3. Erstwhile Thrissur Municipality became Thrissur Municipal Corporation on 1/10/2000. After the Corporation came into existence, the new Council of the Corporation decided to reconsider the earlier decision to rehabilitate the petitioners and 9 others. That decision was taken on 20/11/2000. The Corporation Council took the view that the earlier decision of the Municipal Council was illegal as the item of rehabilitation of the petitioners and 9 others was not in the agenda of the meeting. Accordingly, in the meeting of the Corporation Council held on 20/11/2000, it was resolved to cancel the earlier decision. 4. The first petitioner challenged the decision of the Corporation Council in O.P. No.700 of 2001. The Writ petition was disposed of as per the judgment dated 1st October, 2003. For the sake of convenience, the judgment is extracted below: “The petitioner was doing business in Scrap-Iron in a room in the Pattalam Market Road in Thrissur W.P(C).No.23915/2009 4 Municipal Corporation. The Municipality decided to acquire a substantial portion of the said Pattalam Road Market for widening of the road. A scheme was evolved by the Municipality to rehabilitate persons affected by the acquisition. It decided to establish a new market in which the beneficiaries of the rehabilitation scheme were alloted rooms in a building to be jointly constructed by the beneficiaries of that scheme. Since the petitioner and 11 others were not directly hit by the acquisition, they were not considered for rehabilitation. But, as substantial portion of the Market was shifted and the Municipality was having further plans to acquire the area occupied by the Petitioner and 11 others, the Municipal Council by Exhibit P11 resolution resolved to rehabilitate them also. The said resolution was taken on 5/9/2000. After some time, the Municipal Corporation was formed on 1/10/2000. The new Council of the Municipal Corporation decided to re-consider this decision and a meeting was arranged to be held on 20/11/2000 as per Exhibit P2 notice. In the meeting held on 20/11/2000, Exhibit P1 resolution to the extent it concerns the Petitioner and 11 others was cancelled. The said decision dated 20/11/2000 is Exhibit P3. 2. The Petitioner submits, on the basis of the earlier resolution he along with 11 others occupied the rooms on 4/11/2000. But, using police force they were thrown out. It is also submitted that the goods stored by them in their respective shop rooms are still lying there. This original petition is filed challenging Exhibit P3. According to the Petitioner, a resolution taken by the Municipality cannot be subsequently modified or cancelled by the Corporation Council. It is also contended that no notice was issued to the petitioner and 11 others before rescinding the resolution in their favour by W.P(C).No.23915/2009 5 Exhibit P3. 3. The Municipal Corporation contended that Exhibit P1 resolution to the extent it concerns the petitioner and 11 others is void ab initio. It was the last resolution passed by the out-going Municipal Council immediately before the formation of the Municipal Corporation. This particular item was not included in the agenda. As per the rules governing the meetings of the Municipality, no item not circulated in the agenda can be considered or decided. So, it is contended that Exhibit P1 resolution to the extent it is objected is void ab initio. It is also submitted that no further steps based on the said resolution to grant the shop rooms such as the fixation of rent, execution of agreement etc. were taken. Therefore, it is submitted that Exhibit P1 resolution was never acted upon. So, it conferred no right on the petitioner or other similarly placed persons. It is also submitted that as per Rule 13 of the Rules governing the meetings of the Municipality, a subsequent meeting of the Municipality can cancel or modify an earlier resolution. It is also submitted by the 1st respondent that the petitioner and 11 others were never alloted any rooms. They forcibly occupied certain shop rooms and they have been evicted by using police force. 4. I heard the learned counsel for Additional Respondents 3 to 16 in O.P. No.33030/2000 which was one of the connected cases. It is submitted that the present rooms alloted to them are small when compared with the rooms earlier occupied by them in the Pattalam Market Road. The Council has taken a decision to allot one more room for such persons, it is submitted. If Exhibit P1 deciding to allot rooms to persons like the Petitioner and 11 others is allowed to stand, there may not be sufficient rooms for alloting to the additional respondents. Therefore, they support W.P(C).No.23915/2009 6 the impugned resolution Exhibit P3. The contentions of the learned Counsel for the Municipal Corporation are further emphasised by the learned counsel for the Addl. Respondents 3 to 16 in that Original Petition. 5. Learned Counsel for the petitioner in his reply, submits that for the meeting held on 5/9/2000 there were only 90 items in the agenda. Altogether 104 decisions were taken on that date. The resolution concerning the petitioner and 11 others alone is sought to be rescinded on the ground of certain alleged irregularity. It is submitted, the same is arbitrary and discriminatory. 6. Exhibit P1 is a resolution in favour of the petitioner. If it is allowed to stand, the same would have resulted in conferring valuable rights on the petitioner. Now, that is cancelled by Exhibit P3. No- one has a case that the petitioner or other similarly placed persons who may be adversely affected by Exhibit P3, were heard before passing Exhibit P3 resolution. Their contentions or their grievances were not considered by the Council which passed Exhibit P3 nor, were they given a chance to place them before the Council. The Petitioner and 11 others legitimately expected in the light of Exhibit P1 that they will also be given one room each, as the area occupied by them is also covered by the proposal for acquisition. 7. In view of the above position, I quash Exhibit P3 with liberty to the 2nd respondent to pass fresh orders, if so advised with notice to the Petitioner and other affected parties. It is made clear that I have not decided other points raised by the petitioner on merits as the order impugned is quashed on the ground of violation of principles of natural justice. 8. Learned Counsel for the Petitioner W.P(C).No.23915/2009 7 submitted that the 12 shop rooms meant to be alloted to the petitioner and 11 others are proposed to be leased out in public auction. Learned Standing Counsel for the Corporation submits that the said proposal has been dropped for the time being. This submission is recorded. The O.P. is allowed as above. No costs.” 5. It would appear that after the judgment dated 1st October 2003, notices were issued to the petitioners and others for personal hearing. It is stated that they were heard in person by the Secretary of the Corporation on 21/3/2004 and their statements were recorded. The matter was placed before the Corporation Council in its meeting held on 27/3/2004. As per decision No.8 dated 27/3/2004, the Council resolved that the petitioners and others were not entitled to rehabilitation. It is stated that the decision of the Corporation Council was communicated to the petitioners. 6. The first petitioner filed W.P(C)No.10761 of 2004 challenging the decision of the Corporation Council not to rehabilitate him and others. There is no correct pleading in respect of the same either in the Writ Petition or in the counter affidavit or in the reply affidavit or in the additional counter W.P(C).No.23915/2009 8 affidavit. W.P(C) No.10761 of 2004 was disposed of along with W.P(C) No.11640 of 2004 by Exhibit P5 judgment dated 9th August, 2007. For the sake of convenience, that judgment is extracted below: “On 27.3.2006, an order was issued on I.A.No.4599/06 in W.P(C).11640/04 to the following effect. “Having heard the learned counsel for parties, all that is necessary for the time being is that the Corporation considers Ext.P4 and takes a decision thereon. Let that be done at the earliest, at any rate, within one month from the date of receipt of a copy of this order. Let the reasons for the decision shall also be stated by the Corporation, so that any person, if aggrieved by the said order, can challenge the same before the statutory authorities.” 2. It is pointed out that the Corporation may require more time to take a final decision on Ext.P4, having regard to the various aspects. It is noticed that Ext.P2 in W.P(C).11640/04 is a comprehensive representation placed for consideration of all grievances. Having regard to the totality of the facts and circumstances and having heard counsel, these writ petitions are disposed of directing that the aforequoted order shall be complied with and further that a final decision on Ext.P2 in W.P(C).11640/04 shall be taken considering the same on behalf of the petitioner in W.P(C).10761/04 also. A final decision W.P(C).No.23915/2009 9 on those matters shall be taken after affording the petitioners an opportunity of being heard and reasons shall be stated therein, if the decision is adverse to their interest. Such decision shall be taken as expeditiously as possible, at any rate, within an outer limit of three months from the date of receipt of a copy of this judgment.” 7. As seen from Exhibit P5 Judgment, an interim order was passed by this Court on 27/3/2006 directing the Corporation to consider Exhibit P4 marked in WP(C) No.11640 of 2004. In the pleadings in the present case, it is not clear what that Exhibit P4 was. No party is aware what was that Exhibit. (I verified the judge's papers and W.P(C) No. 11640 of 2004. It is seen that Exhibit P4 marked therein is a representation dated 13/3/2006 submitted by the petitioners and two others requesting for allotment of shop room Nos.96, 102, 107, 110 and 117, which were lying vacant, to the petitioners and two others.) 8. The present Writ Petition is filed when Exhibit P6 notice No.R8.13449/99 dated 3/6/2006 was received by the petitioners. In Exhibit P6, it is stated that after the judgment in WP(C) No.11640 of 2004, the matter was placed before the Council on 31/5/2006 and as per decision No.13, it was resolved W.P(C).No.23915/2009 10 to constitute a committee to study the whole issue and to take a appropriate reasoned and transparent decision. The relief prayed for originally in the present Writ Petition was for the issue of a writ of mandamus or any other writ, order or direction directing the respondents to allot shop rooms in the newly constructed shopping complex in the New Pattalam Market, Thrissur. Later, the Writ Petition was amended and another prayer for the issue of a writ of certiorari to quash decision No.8 dated 27/3/2004 taken by the Corporation Council was incorporated. 9. It is stated in the counter affidavit that after the judgment in WP(C) No.11640 of 2004, the standing committee for Finance of the Corporation considered the question involved in the case in its meeting on 26/4/2006. It was resolved that the petitioners are not entitled to rehabilitation on the ground that their names are not included in the list of eligible persons for rehabilitation. The decision of the standing committee for finance (decision No.65) was considered by the Corporation Council in its meeting dated 31/5/2006. The Council resolved as per resolution No.13 that a committee should be constituted. That decision was W.P(C).No.23915/2009 11 communicated to the petitioners. Exhibit P6 dated 3/6/2006 is that communication. 10. It is also stated in the counter affidavit that as per the judgment dated 9/8/2007 in W.P(C) No.10761 of 2004 , the writ petitioners were heard in person on 24/10/2007. Who heard the petitioners is not stated in the counter affidavit. However, the matter was placed for consideration of the standing committee for finance. The standing committee for finance in its meeting held on 16/11/2007 resolved that the petitioners are not entitled to get allotment of the rooms. It was also held by the committee that the petitioners could not prove that they were eligible for rehabilitation. It is further stated in the counter affidavit that the said decision of the standing committee for finance, is under consideration of the Corporation Council. In spite of the fact that the Corporation Council has not taken a decision within three months from 9th August, 2007 as directed by this Court in W.P(C) Nos.10761 & 11640 of 2004, in paragraph 11 of the counter affidavit, it is stated that the direction in the judgment was complied with. The fact remains that the direction in the W.P(C).No.23915/2009 12 judgment was not complied with. A final decision in the matter is not taken by the Corporation Council. From the pleadings, it is clear that the standing council for finance considered the matter. 11. In the reply affidavit filed by the petitioners, it is stated that the eastern side wall of the shop rooms in which the petitioners and others were conducting trade was damaged as a result of the land acquisition. The letter issued by the Civil Engineer certifying the damage was produced as Exhibit P8. 12. The petitioners have a case that originally rooms were allotted to them in the New Pattalam Market Building and later, they were forcibly evicted with the help of police. The Municipality takes the stand that the petitioners and others forcibly occupied some of the rooms and they were rightly evicted with the help of police. It is not necessary to decide that question in this Writ Petition. 13. What is required to be done now has to be done by the Municipal Corporation. They did not comply with the direction issued by this Court. They say that the standing committee has taken decision twice and it was placed before the Corporation W.P(C).No.23915/2009 13 Council. The Council has not taken any decision in the matter. The dispute, which is pending for the last more than 10 years, is not resolved even now. In the meanwhile, three Writ petitions were filed before the High Court and the present Writ Petition is the fourth one. 14. The learned counsel appearing for the petitioners submitted that because of the adamant stand of the Corporation, many of the rooms are lying vacant in the New Pattalam Market Building and that huge loss is caused to the Corporation on account of the same. The counsel appearing for the Corporation submitted that the rooms could not be allotted because of the adamant stand of the petitioners and because of the interim orders passed by this Court. The counsel appearing for the Municipal Corporation submitted that the Corporation could not allot vacant rooms to others because of the filing of various writ petitions and in view of the prayers made in those writ petitions. 15. By not taking a decision in the matter by the Thrissur Municipal Corporation, nobody is going to gain. On the other hand, the Corporation as well as the petitioners would be put to W.P(C).No.23915/2009 14 loss. Therefore, it is highly necessary that a final decision is taken in the matter by the Corporation. Let it be done positively within a period of three months from the date of receipt of a copy of this judgment. If the Corporation fails to take a decision in the matter, the petitioners would be entitled to claim allotment of the vacant rooms in the newly constructed Pattalam Market Building at reasonable rent, taking into account the rent fetched for similar rooms in that building. The Writ Petition is disposed of as above. K.T. SANKARAN, JUDGE scm