Corporation
of Kochi Vs. Elamkulam Village Co-Operative Society Ltd. and Anr [2006] Insc 548
(29 August 2006)
Arijit
Pasayat & Lokeshwar Singh Panta
With
CIVIL APPEAL No. 4983 of 2000 and CIVIL APPEAL No. 3212 of 2006 ARIJIT PASAYAT,
J.
These
appeals relate to a common order passed by a Division Bench of the Kerala High
Court. While CA Nos. 4982 of 2000 and 4983 of 2000 have been filed by the
Corporation of Kochi (hereinafter referred to as the
'Corporation'), the other appeal has been filed by Greater Cochin Development
Authority (in short the 'Development Authority'). By the impugned judgment the
High Court held that the decision of the Corporation rejecting the application
for removal of licence made by the respondent No.1 (hereinafter referred to as
the 'Society') is not sustainable and the learned Single Judge who disposed of
the writ petition should not have directed an appeal to be filed by the
Society.
Background
facts in a nutshell are as follows:-
The
Society represented by its Secretary is registered under the Kerala
Co-operative Societies Act.
One of
the objects of the Society is the conduct of a private market at Kadavantha.
According to the society it owns 29 cents of land in Elamkulam Village facing 'Sahodaran Ayyappan' road in Ernakulam. The society
had constructed 42 shop rooms in the property and leased it out to its members
and non-members, who had been conducting business of dealing with provisions,
vegetables, meat, fish etc. The Society had been collecting licence fees from
the occupants of the shop rooms.
The
private market was being conducted by the Society after obtaining licence from
Corporation, under the Erstwhile Kerala Municipal Corporations Act, 1961 (in
short the 'Corporation Act'). The licence was being renewed every year and the licence
fee was also being paid. The market conducted by the Society is a private
market under Section 2(31) of the Kerala Municipality Act, 1994 (in short the
'Act'). Out of the property belonging to the Society, an extent of 2.650 cents
of land was surrendered to the Corporation for the purpose of widening the 'Sahodaran
Ayyappan' road, free of cost after demolishing the adjacent shop rooms.
According to the Society by over sight, it failed to apply for the renewal of
the licence for the period 1997-98. By letter dated 23.8.1997 the Corporation
directed the Society to stop the functioning of the market for non-payment of licence
fee. On receipt of this the Society filed a representation to condone the delay
in remitting the licence fee and permitting it to pay the licence fee for the
period 1997- 98. But the Corporation issued notice calling upon the Society to
show cause as to why the business shall not be closed, since the private market
is unauthorised. This was challenged by some of the occupants of the shop
rooms, which resulted in the filing of O.P.No.1663/98 and W.A.No.601/98.
Subsequently,
the Joint Registrar of Cooperative Societies passed an order dated 26.6.1998
directing the Society to take urgent steps to continue the market owned by the
Society.
Thereafter,
the Society passed a resolution dated 1.8.1998 to open the market and to pay
the requisite licence fee for the private market for the periods 1997-98 and
1998-99. The Society with a covering letter dated 4.8.1998, forwarded a cheuqe for
Rs.5,100/- being the licence fee for the said periods and submitted
applications in the prescribed form for licence.
The
Corporation by order dated 6.8.1998 rejected the application, returned the cheque.
The said order was challenged in OP. No.15638/98 by some of the members of the
Society. The Society filed O.P.No.17365/98 challenging rejection of the
application. The above Original Petitions were dismissed by judgment dated
13.10.1998. Thereafter, the Society filed W.A. No.225/98 and W.A. No.226/98 against
the judgments in O.P. No.17635/98 and O.P. No.15638/98 Both the Writ Appeals
were heard together and disposed of by judgment dated 1712.1998. By said
judgment, High Court directed the Corporation to pass fresh order in accordance
with the directions contained in the judgment. The Corporation again considered
the application and rejected the same by order dated 20.1.1999. Challenging the
same O.P. No.3433/99 was filed.
The
main ground taken against the order was that it is that is not in accordance with
the directions contained in earlier judgment. The Society contended that the
holding of a private market is a right which it can exercise and the
Corporation can only impose restrictions or regulations regarding the conduct
of the same. It was further contended that the matters which were not relevant
have been taken into consideration by the Corporation in rejecting the
application filed by it. As a matter of fact, there was default in the payment
of licence fee only for one year and as soon as the Society came to know of the
non-renewal of the licence, application was filed immediately. But that
application was not considered by the Corporation. There was no rule that an
application for renewal cannot be submitted after the prescribed time. The only
inhibition is that a market cannot be conducted without licence. The
Corporation itself has allowed three persons to conduct stalls in the market.
The ground of unhygienic conditions mentioned in order is not correct. The
market has been existing for the last so many years. As directed in earlier
judgment, this could have been rectified by making suitable directions to the
licensee to remove the unhygienic conditions. Similarly, it was contended that
the ground of traffic congestion s invented only for the purpose of denying licence
to the Society. As a matter of fact, the Society itself has surrendered free of
cost an extent of nearly 2= cents of land for widening the 'Sahodaran Ayyappan'
road. Further, the Society is prepared to abide by any conditions imposed for
the regulation of traffic and easing of traffic congestion because of the
existence of the market. The existence of the market very close in the Kadavanthra
junction is not a ground to refuse the licence.
On
behalf of the Corporation, a counter-affidavit was filed. According to it, an
alternate remedy is available to the Society under Section 509(l)(b) of the
Act. It was further stated that only a few of the stall holders have taken the licence
from the Corporation. The market is not being kept in a good hygienic
condition. There was no provision for waste disposal and the market was being
run in a most unhygienic condition.
The
Corporation relied on the counter filed in O.P. No.1663/98 to show that the
market is very congested and unhygienic. It was further stated that the market
is abutting the 'Sahodaran Ayyappan' road, a very busy road. The market does
not have any parking space. Society did not apply for the renewal of the licence
from 1995-96 onwards. There was no application for renewal. As a matter of
fact, an earlier application was not pursued. Reference was made to the
Original Petition filed by certain stall holders.
Learned
Single Judge who heard the writ petition did not go into the merits of rival
contentions and held that the issues concerned can be gone into more
effectively if an appeal is filed under Section 509(1) of the Act. It was noted
that disputed questions of facts were involved. Therefore, it will not be
proper to decide the issue in the writ petition. It was further indicated that
the question as to whether the Secretary of the Corporation had acted in
accordance with directions issued by the High Court in the earlier judgment can
be considered by the Appellate Authority. The relevant portion of the order
reads as follows:
"I
do not propose to go into the merits of the rival contentions in this
proceedings as according to me, all these matters can be considered in an
appeal filed under Section 509(1)(b) of the Act. I also find that certain
disputed questions of fact are also involved in the matter. I am sure that if
the petitioner files an appeal against the impugned order, the appellate
authority will consider the matter with all seriousness. The question as to
whether the Secretary while passing Ext. P10 order has flouted the directions
issued in Ext. P9 judgment will also be considered by the appellate authority
in the appeal." An appeal was filed by respondent no.1-society before the
High Court. Primary stand taken was that respondent no.1- corporation had not
kept in view the earlier judgment passed in the Writ Appeal Nos.2225/98 and
2226/98 dated 17.12.1998 and, therefore, the learned Single Judge should not
have directed the writ-petitioner to file an appeal and should have decided the
matter. The present appellant took the stand that since alternative remedy is
available the writ- petitioners should have availed that remedy and should not
have filed a writ petition particularly when the disputed questions of facts
are involved. The High Court accepted the position that where there is
alternative remedy the High Court should not normally exercise its
jurisdiction. However, it felt that because the order which was impugned in the
writ petition was running counter to the directions contained in the earlier
judgment, a writ petition was to be entertained. High Court was of the further
view that merely because there was delay in seeking renewal of the licence,
that cannot be a ground to refuse the licence. It was of the view that there
was no specific period provided for making an application though Section 460(1)
of the Act states that no person shall open a new private market or continue to
keep open a private market except on a licence from the Municipality.
Application for a licence or renewal application has to be made in terms of
sub- section (2) of Section 460 not less than six weeks before the expiry of
the period for which the licence has been granted and in the case of a new
market, six weeks before the date on which the market is proposed to be opened.
The High Court felt even though Section 460 required renewal within six weeks
before the expiry of the licence, the Municipality has the power to renew the licence
even if there is a belated application. For coming to the conclusion the High
Court felt that it is one thing to say that the market cannot be run at any
time without appropriate licence or on the licence being cancelled. It was
accepted that a licensee has to apply for renewal within stipulated time and
the Municipality has power to close down the market. It was, however, held that
when an order has been passed to close down, it is not that licencee cannot
apply for renewal. It was further, held that though the new market was opened
by the Development Authority, and some of the shopkeepers had already occupied
some shops cannot be a ground to refuse the renewal. It was noticed that
municipality had allowed three persons to function in the market. It was held
that the directions in the earlier judgment were not considered. Therefore, it
was held that the matter was to be re-considered.
In
support of the appeals, learned counsel for the appellants submitted that
admittedly the licence was not renewed and, therefore, the market was being
operated without proper licence. That is why direction was given to stop activities.
It is to be noted that respondent no.1-society did not want to renew its licence.
It has categorically stated by way of an affidavit that there was intention to
continue activities. The shopkeepers had filed a writ petition for direction to
the Society to ask for renewal of the licence. The writ petition was dismissed.
Similar was the fate of writ appeal. Thereafter the Society had filed writ
petition. On the first round, the only ground taken was that order was passed
without notice. Therefore, direction was given to give an opportunity and,
thereafter decide the matter. That was done.
The
applications for renewal relating to two periods i.e. years 1997-98 and 1988-89
were considered and fresh order was passed. It is not the case of the
respondent no.1-Society that it intended to continue business and there was
some unintentional delay. As a matter of fact, when the shopkeepers had filed
the writ petition, at that time the respondent no.1- Society did not take stand
that it wanted renewal of the licence. In fact, the application was filed after
the dismissal of the writ appeal.
Learned
counsel for respondent no.1 submitted that the High Court has rightly taken
note of the fact that there was no bar on making a belated application for
renewal.
Section
460 deals with "License for private markets". The same reads as
follows:
-
"Licence
for private markets.
-
No person shall
open a new private market or continue to keep open a private market except on a
licence from the Municipality.
-
Application for
a licence under sub-section (1) shall he made by the owner of the place in
respect of which the licence is sought to be renewed, not less than six weeks
before the expiry of the period for which the licence has been granted and in
the case of a new market, six weeks before the date on which the market is
proposed to he opened.
-
The Municipality
shall, as regards private markets already established and may, at its direction
as regards new private markets grant the licence applied for subject to such
regulations as to supervision and inspection and to such conditions as to
sanitation, drainage, water supply, width of paths and ways, weights and
measures to be used, and rents and fees to be charged in such market as it may
think proper or it may, for reasons to be recorded in writing, refuse to grant
any such licence for any new private market. The Municipality may, however at
any time, modify the conditions of a licence to take effect from any specified
date or suspend or cancel any licence for breach of any conditions thereof.
-
Where a licence
is granted, refused, modified, suspended or cancelled under this section, the
Municipality shall cause a notice of such grant, refusal, modification,
suspension or cancellation in English and the language of the locality to be
pasted in some conspicuous place at or near the entrance to the place in
respect of which the licence was sought or had been obtained.
-
Every licence
granted under this section shall expire at the end of the year in which it is
granted,
[Explanation.
For the purpose of his section private market includes also a shopping complex
having more than six shop rooms.]
Section
462 in definite terms provides that no person shall sell or expose for sale any
animal or article in any unlicensed private market.
The
High Court itself has noted that the application for renewal has to be filed
within the stipulated period. It, however, was of the view that there is no bar
in making an application beyond that time. The view that application can be
made at any time is not correct, because application for renewal was filed
after the expiry of the period. The respondent no.1-Society itself had
indicated that it had no intention to carry out the activities. Further, we
find that every observation/direction given by the High Court in the earlier
judgment had been duly and elaborately discussed and thereafter the order
rejecting applications filed was passed.
The
High Court came to an abrupt conclusion that the directions given in the
earlier writ appeal were not taken note of. Unfortunately, the High Court has
not indicated as to which of the directions was not taken note of. As a matter
of fact, a bare reading of the order which was passed on 20.1.1999 shows that
all relevant aspects were elaborately dealt with. Each of the points was
considered and conclusions were arrived at. It was specifically noted that the licence
issued earlier expired on 31.3.1996 and, therefore, the market was functioning unauthorisedly
w.e.f. 1.4.1996. There was no application for renewal made at any time even not
belated for the year 1996-97. Obviously, the application could not have been
made for renewal of the licence after the expiry of the period which is the
case for the period 1997-98. For the year 1998-99 the application was made on
4.8.98 i.e. after the expiry of the period provided. The question of renewal of
licence retrospectively after the expiry of the period during which the society
had unauthorisedly carried on activities is not contemplated in law. Therefore,
the impugned judgment of the Division Bench of the High Court is clearly
indefensible, and is set aside. The appeals are allowed but in the
circumstances without any order as to costs.
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