IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 22ND MAY 2009 / 1ST JYAISHTA 1931 WP(C).No. 14091 of 2009(F) -------------------------- PETITIONER(S): --------------- JAYAN K. PANICKER, AGED 38 YEARS, S/O. PANICKER, KALLUVILAKATH HOUSE, KULATHOOR, UCHAKKADA, THIRUVANANTHAPURAM. BY ADV. SRI.T.A.UNNIKRISHNAN SRI.K.SATHEESH KUMAR RESPONDENT(S): --------------- 1. THE THIRUVANANTHAPURAM MUNICIPAL CORPORATION, REP. BY ITS SECRETARY, THIRUVANANTHAPURAM. 2. THE REVENUE OFFICER, THIRUVANANTHAPURAM, MUNICIPAL CORPORATION. BY SRI.N.NANDAKUMAR, SENIOR ADVOCATE SRI.P.K.MANOJ. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.14091 OF 2009 ------------------------------------------- Dated this the 22nd day of May, 2009 JUDGMENT 1. The first respondent corporation has a building in Peroorkkada market in Trivandrum. Different rooms in that commercial building were let out on lease or licence basis following auction. Some of the rooms are identified to be given exclusively to physically challenged persons. In the auction conducted in 2006, the petitioner was a successful bidder for a room. He paid the entire advance amounts that were due to be deposited. This included the bid amount and six months' rent. Following that, the petitioner came to occupy the room and had been carrying on a business activity there. With the passage of time, admittedly, he failed to pay the necessary dues as rent/licence fee. As a result of that, the corporation put the room to re-auction. It was notified on 4.5.2009 and sealed tenders were accepted until 4 p.m. yesterday and at 11 a.m., this morning, there was open competition. At this juncture, the petitioner seeks relief by WPC.14091/09 Page numbers stating that he is prepared to pay off the entire defaulted rent/licence fee, with interest that may run on it in terms of the contract between the parties, and that he may, therefore, be permitted to continue in occupation for the remaining period in terms of Ext.P1 agreement between the parties, which would otherwise expire by 23.8.2009. He points out that similar occupants in the same building are given further extensions, however, that the petitioner would be deprived of even that if his suggestion that he be permitted to continue by paying the arrears is not accepted. He states that he is a physically handicapped person and has no other mode of livelihood. 2.In support of the writ petition, learned counsel for the petitioner argued that Ext.P1 document between the parties essentially discloses the terms to lease rather than license, though Act 2 of 1965 does not apply. He points out that though, stricto senso, Ext.P1 may not be a statutory contract, the first respondent is a statutory body and is, therefore, duty WPC.14091/09 Page numbers bound to act in terms of fairness and is to uphold the equality principles secured in Part III of the Constitution. Still further, it is pointed out that as of now, no vested right would have inured to any of the participating bidders since confirmation of any sale following Ext.P2 notice could happen only after a further period of 7 days. 3.Opposing the matter at the stage of admission, learned senior counsel for the first respondent pointed out that Ext.P1 is essentially a contract, which does not get a statutory flair from out of the Kerala Municipality Act and still further, that Ext.P1 was the result of a competition, though such competition was confined to the physically challenged persons. He further stated that in terms of the clauses contained in Ext.P1, the petitioner has no right to continue in possession, he having admittedly defaulted in payment of amounts due under that contract. It is also pointed out that the petitioner always waited to take his last chance since Ext.P2 though issued on WPC.14091/09 Page numbers 4.5.2009, this writ petition is filed only on 21.5.2009, the last date fixed for receiving the tenders. 4.Going by the facts noticed above and the contents of Ext.P1, it is not a contract governed by the provisions of the Kerala Municipality Act. It is a contract in relation to assets belonging to the corporation. The purpose of the contract is to lease out/give on licence premises for commercial purposes. Though the competition for the bidding was confined to the physically handicapped persons, it is obvious that financial might was a relevant criteria. I say this because the bid gets confirmed in favour of one who quotes the highest amount to take the room and that amount would have to be paid to the corporation as security. The payment of rent falls over and above that. Therefore, financial power from among those belonging to the category of physically challenged was the yardstick of the competition. Obviously therefore, this case cannot go to be decided on the yardsticks of Article 21 of the Constitution. Then the question would be as to whether there WPC.14091/09 Page numbers is any curtailment of the petitioner's rights referred to Articles 14 or 15. Obviously, nothing appears. This is particularly so, because, the petitioner has no case that he, as of now, has acted in terms of the contract. The default in payment of rent/licence fee is admitted. It is the liability of the petitioner to quit on the occurrence of such an event. The corporation has the right to re-auction the room for occupation. 5.In the aforesaid circumstances, I do not find any error of jurisdiction, legal infirmity, unreasonableness or procedural impropriety in the corporation having decided to proceed for re-auction. All that remains to be considered is as to whether the petitioner's request that he be permitted to continue on payment of the entire arrears commends acceptance. Having noticed that there is no jurisdictional error or legal infirmity, it is not for this Court to thrust its views in commercial matters of any party, including the statutory corporation, which has been found to have acted in terms of laws. Therefore, decision on the petitioner's request for continuation is a matter to be WPC.14091/09 Page numbers left entirely to the corporation authorities. As rightly pointed out by the learned counsel for the petitioner, confirmation of the auction has to be done by the competent committee and thereafter, a period of seven days is fixed for the successful bidder to make deposit. No third party interest would, therefore, stand in the way of the petitioner moving the corporation, as of now, for the relief of permitting him to continue in occupation on his offer to make payment of arrears, interest or whatever in terms of what may be accepted by the corporation in its view. 6.In the result, preserving the right of the petitioner to move the corporation for any relief in terms of what is stated herein above, this writ petition is dismissed. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.23/5.