IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 1ST JANUARY 2008 / 11TH POUSHA 1929 WP(C).No. 13715 of 2007(G) -------------------------- PETITIONER: ------------ C.P.ABOOBAKER,KODUVATHARAYIL (CHITTADI), AROOKARA EAST P.O.,KOTTAYAM. BY ADV. SMT. VEENA KRISHNAN RESPONDENTS: ------------- 1.THE STATE OF KERALA, REPRESENTED BY THE SECRETARY OF THE LOCAL ADMINISTRATION DEPARTMENT,SECRETRIAT,THIRUVANANTHAPURAM. 2.THE ARPOOKARA GRAMA POANCHAYATH REPRESENTED BY THE SECRETARY, VILOONNI P.O., ARPOOKARA,KOTTAYAM. 3.THE SUB INSPECTOR OF POLICE, GANDHINAGAR P.O.,KOTTAYAM. 4.THE DISTRICT COLLECTOR,KOTTAYAM. R1, R3 & R4 BY GOVT. PLEADER MR.SHYSON P.MANGUZHA R2 BY ADV. SRI.M.V.BOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX(WPC 13715/07) PETITIONER'S EXTS.: EXT.P1: COPY OF THE LIST OF MEMBERS OF THE KOTTAYAM MEDICAL COLLEGE FOOT PATH MOBILE SHOP ASSOCIATION, ARPOOKARA. EXT.P2: TRUE COPY OF THE STAY ORDER DATED 29.11.1984. EXT.P3: TRUE COPY OF THE RECEIPT FOR COLLECTION OF LICENCE FEE FOR THE YEAR 1985-86. EXT.P4: TRUE COPY OF THE JUDGMENT DATED 12.12.1997. EXT.P5: TRUE COPY OF THE JUDGMENT DATED 13.1.2006. EXT.P6: TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT DATED 11.7.2006. EXT.P7: TRUE COPY OF THE NOTICE OF REJECTION OF THE REQUEST FOR REHABILITATION AND EVICTION DATED 29.7.2006. EXT.P8: TRUE COPY OF THE ORDER OF THE DISTRICT COLLECTOR, KOTTAYAM DATED 7.12.2004. RESPONDENTS EXTS.(2ND RESPONDENT): EXT.R2(a): TRUE COPY OF DECISION TAKEN BY THE ARPOOKARA PANCHAYAT MEETING NO.IV(2), DATED 22.7.2006. PIUS C. KURIAKOSE,J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.13715 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 1st January, 2008 JUDGMENT A person who has been conducting sale of fruits in a bunk shop in the premises of the Medical College Hospital at Gandhinagar, Kottayam has filed this Writ Petition under Article 226 of the Constitution impugning Ext.P7 order issued by the Secretary of the 2nd respondent-Panchayat declining his request for rehabilitation in a building which has been constructed as indicated in Ext.P4 judgment for accommodating petty shopkeepers who were evicted from their bunk shops. Apart from seeking quashment of Ext.P7, the petitioner also prays that the benefits of Ext.P4 judgment of this court be extended to him and to direct the Panchayat to dispose of Ext.P9 representation submitted by him seeking a review of Ext.P7 on the basis that he is the first person entitled for the benefit of rehabilitation. 2. The Panchayat has filed a detailed counter affidavit and Ext.R2(a) produced along with the counter affidavit is the full text of the decision taken by the Panchayat on the petitioner's request for rehabilitation in implementation of the directions of this court in Ext.P5 judgment. W.P.C.No.13715/07 - 2 - 3. Heard both sides. 4. The case of the petitioner is that he and the petitioners in Ext.P4 judgment along with 21 others had formed an association by name 'Kottayam Medical College Foot Path Mobile Shop Association, Arpookara' when there was a threat from the side of the Panchayat to evict them from the bunk shops in which they were conducting their business. He claims to have been the Joint Secretary of the Association. In the wake of imminent threat of eviction, six members of the Association moved this court and in this court the Panchayat filed a counter affidavit stating that it has been decided by the Panchayat to construct semi-permanent bunks for the 'petitioners' on the side of the Panchayat bus stand on the 'petitioners' bearing the cost of such construction. It was also stated in the counter affidavit that all the petitioners in Ext.P4 case will be rehabilitated on the said terms. Ext.P4 judgment was delivered by this court in the light of that counter affidavit and it was ultimately directed that the Panchayat shall not evict the 'petitioners' in Ext.P4 from their present premises till they are rehabilitated in the manner mentioned in the counter affidavit filed by the Panchayat. Since the petitioner was not party to Ext.P4 judgment, he approached this court in the year 2000 by filing W.P.C.No.13715/07 - 3 - a separate O.P. (O.P.No.12427/2000) which was disposed of by this court vide Ext.P5 judgment. Under Ext.P5, this court directed the Panchayat to consider the matter in the light of Ext.P4 and take an early decision within four months. Ext.R2(a) decision, it appears, has been taken pursuant to Ext.P5. In Ext.R2(a) reference is made to Ext.P8 order of the District Collector, Kottayam under which the District Collector has ordered under Section 144(1) of the Cr.P.C. to stop the functioning of 'Thattukadas' within a distance of 2 kms. from the Medical College premises for a period of 2 months from the date of the order, i.e. 7.12.2004. It is discernible from Ext.P8 that the same was issued in the wake of outbreak of viral hepatitis in the Medical College area. Under Ext.R2(a) it is held that the petitioner is not entitled for the benefits of Ext.P4. But significantly, it is seen that the assertion of the petitioner that he deals only in fresh fruits and not in cooked food as is done in Thattukadas has not been denied. In other words, the claim of the petitioner is that he sells only fresh fruits has not been controverted. Another reason which seems to be weighed with the Panchayat for holding that the petitioner is not entitled for the benefit of Ext.P4 judgment is that the petitioner does not qualify as a petty shop owner. The petitioner's shop is situated W.P.C.No.13715/07 - 4 - having an extensive area of 150 sq. metres. The third and most important reason stated in Ext.R2(a) is that the petitioner has not produced any documents for substantiating his claim that he is also entitled for rehabilitation. The submission of the learned counsel for the petitioner was that the Panchayat insisted on production of yearly licences issued by the Panchayat. Licences were not actually issued on yearly basis. The practice was that upon payment of licence fee, receipt will be issued. The petitioner did produce licence fee receipts so issued by the Panchayat to him. The statement in Ext.R2(a) that no documents have been produced, according to the counsel for the petitioner, is a wrong statement. The explanation offered by the petitioner through counsel for not being able to produce the originals of the licences issued by the Panchayat from year to year for conduct of business is convincing. It is a matter of common knowledge that once licence is issued for the first time, local authorities only collect licence fees and issue receipts. If the petitioner is able to produce receipts issued by the Panchayat from year to year against payment of licence fees, they should be treated as sufficient evidence showing that the petitioner had been conducting business from his shop. If such receipts are forthcoming, I do not find any reason as to why the W.P.C.No.13715/07 - 5 - petitioner should not be extended the benefit of Ext.P4 judgment. Of course, the size of the shop presently occupied by the petitioner may be relatively large but the assurance in Ext.P4 was that semi- permanent bunks will be constructed for the petitioners at the cost of the evictees. It is open to the Panchayat to ensure that the size of the semi-permanent bunk to be constructed for accommodating the petitioners is the same as similar bunks constructed for accommodating similarly evicted persons. The claim of the petitioner that the income derived by him from the controversial bunk shop is the only means of livelihood and that his health condition is precarious and that eviction without rehabilitation will result in hardship are claims which are prima facie acceptable. I am therefore of the view that though the petitioner has statutory remedy by way of appeal to the Tribunal for Local Self Government Institutions against Ext.R2(a), the Panchayat can be directed to have a reconsideration of the petitioner's claim. Accordingly, I quash Ext.R2(a) and Ext.P7 and direct the Panchayat to reconsider the petitioner's case after hearing the petitioner. The petitioner is directed to produce before the Panchayat all documents including the receipts issued by the Panchayat from time to time so as to show the longevity of the W.P.C.No.13715/07 - 6 - petitioner's bunk shop business. The Writ Petition is disposed of as above. No costs. srd PIUS C.KURIAKOSE, JUDGE