IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN SATURDAY, THE 23RD MAY 2009 / 2ND JYAISHTA 1931 WP(C).No. 13050 of 2009(A) -------------------------- PETITIONER(S): --------------- K.P.ALI,HAFSATH MANZIL,PULLITHODIPARAMBU NALLALAM P.O. KOZHIKODE. BY ADV. SRI.P.SANJAY SRI.M.MUHAMMED SHAFI RESPONDENT(S): --------------- THE CORPORATION OF CALICUT, REP.ITS SECRETARY, DEVELOPMENT WING, AMBEDKAR BUILDING, RAILWAY LINK ROAD, KOZHIKODE. ADV. SRI.K.D.BABU,SC,KOZHIKODE CORPORATION THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.13050 OF 2009 ------------------------------------------- Dated this the 23rd day of May, 2009 JUDGMENT 1.The petitioner was the successful bidder for licence to have a piece of corporation land for short time business activities. The contract between the parties provided a clause, which enabled the petitioner to apply to the corporation to extend the term of the licence and if the corporation permits, the petitioner could have enjoyed it. With the passage of time, controversies arose and the petitioner and the first respondent corporation reached this Court. Taking note of the fact that a request of the petitioner for such relief was pending before the corporation, this Court issued Ext.P4, directing consideration of that and to maintain status quo till a decision is taken thereon. The petitioner was required to discharge the entire arrears of amounts for the period up to 28.2.2007 at the rate of Rs.1,000/- per day and thereafter, to continue to pay at the rate of Rs.1,500/- per day till decision is taken by the corporation, following the directions in Ext.P4. WPC.13050/09 Page numbers 2. The corporation thereafter issued a decision without hearing the petitioner. That was struck down by this Court as per Ext.P6 judgment. Following that, the corporation issued yet another decision, which was struck down by the Tribunal for Local self Government Institutions as per Ext.P8 and the council of the corporation was directed to re-consider the matter. Thereafter, the impugned order (Ext.P9) was issued by the Mayor. The petitioner has challenged it before the Tribunal. This writ petition is filed seeking a direction to the Tribunal to expedite hearing of that revision and also for a further order that the corporation shall not enforce Ext.P9 until the Tribunal decides the matter. 3.The situation in hand calls for consideration as to whether the operation of Ext.P9 should be stayed. But more importantly, the question is whether the parties should continue with the litigation on the basis of Ext.P9. I say this because the transaction between the parties appears to be in the realm of non-statutory contracts and whether the first respondent, a public authority, is obliged to ensure that it acts fairly. It WPC.13050/09 Page numbers cannot, however, be tied down to any fundamental principles relatable to any statutory provisions beyond accepted norms of fairness and transparency in commercial transaction of public authorities. 4.Viewed in the aforesaid angle, Ext.P9 shows that the decision went against the petitioner fundamentally on two grounds. Firstly, it was said that after 28.2.2007, there is no contract between the parties. Secondly, it is said that the petitioner had not been promptly paying the rent and that there is arrears from 16.1.2009. Accordingly, it is stated in Ext.P9 that the corporation has to proceed with re-tender. However, it is submitted by the learned counsel for the corporation that there is no arrear of rent in terms of the last paragraph of Ext.P4 judgment of this Court. If that be so, the only other sustainable ground in Ext.P9 is that on or after 28.2.2007, there is no agreement between the parties. In fact, Exts.P6 and P4 comes on the representation of the petitioner requesting that the period be enlarged and he may be permitted to execute fresh agreement. Therefore, when this WPC.13050/09 Page numbers Court has directed the corporation to consider that request, the petitioner cannot be tied down to the fact that there is no agreement, because such agreement could have come only after the corporation agrees to extend the period. 5.Be that as it may, it is not for this Court to insist or for the petitioner to dictate, to the corporation, as to how it shall be guided by its commercial wisdom. There is nothing in the terms of contract between the parties that the petitioner ought to be given the premises. The right of the petitioner to continue, if at all, would depend exclusively on the volition of the corporation to permit him to continue. Of course, this again is a matter where the element of fairness ought to be involved in the decision making process of the corporation. 6.In the aforesaid premise, I do not deem it worthwhile for the parties herein to continue with a litigation before the Tribunal as against Ext.P9. It would also be not in public interest to leave the corporation without liberty to decide its own commercial interest. WPC.13050/09 Page numbers 7.For the aforesaid reasons, notwithstanding that such particular relief is not sought for, Ext.P9 is quashed and the petitioner is directed to appear before the council of the corporation. The council shall take the request of the petitioner for renewal of the licence and consider the same de novo in the light of the relevant facts and take a decision in its wisdom. To expedite that process, all further proceedings in R.P.37/09 on the file of the Tribunal for Self Government Institutions will stand terminated by the force of this judgment. The petitioner will continue on the terms issued as per Ext.P4 for a period of three months from now, within which time, the council will decide the issue finally. The writ petition is ordered accordingly. The Office will communicate a copy of this judgment to the Tribunal also. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.25/5.