Ajitha v. Chalakudy Municipality and Tribunal for Local Self Government Institutions

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 31ST MAY 2010 / 10TH JYAISTHA 1932 WP(C).No. 9655 of 2010(F) ------------------------- PETITIONER(S): --------------- AJITHA, AGED 36 YEARS,W/O.AJAYAN, PRABHAT HOUSE,KODAKARA,THRISSUR DT., (PRABHATH MOTORS,CHALAKUDY). BY ADV. SRI.V.M.KRISHNAKUMAR SMT.P.A.ANITHA RESPONDENT(S): --------------- 1. CHALAKUDY MUNICIPALITY,MUNICIPAL OFFICE, CHALAKUDY, REP. BY ITS SECRETARY. 2. TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS,THIRUVANANTHAPURAM, REP.BY SECRETARY. ADV. SRI.M.P.ASHOK KUMAR FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX(WPC 9655/2010) ## PETITIONER'S EXTS |EXT.P1|TRUE COPY OF THE BUILDING TAX RECEIPT| |---|---| ||ISSUED BY THE CHALAKUDY MUNICIPALITY| ||DATED 2.7.09| |EXT.P2|TRUE COPY OF THE RECEIPT ISSUED BY THE| ||MUNICIPALITY ON 15.12.2008.| |EXT.P3|TRUE COPY OF THE COUNTER AFFIDAVIT FILED| ||BY THE MUNICIPALITY IN WP(C) NO. 20449/2009.| |EXT.P4|TRUE COPY OF THE NOTICE DATED 17.7. 2009| ||OF THE MUNICIPALITY.| |EXT.P5|TRUE COPY OF THE JUDGMENT IN WP(C) NO. 20449/2009| ||DATED.5.10.2009.| |EXT.P6|TRUE COPY OF THE ORDER DATED 19.11. 2009 OF| ||THE MUNICIPAL COUNCIL.| |EXT.P7|TRUE COPY OF THE REVISION PETITION FILED BY| ||THE PETITIONER BEFORE R2.| |EXT.P8|TRUE COPY OF THE ORDER DATED 25.2.2010 OF| ||THE TRIBUNAL.| |RESPONDENT'S EXTS.|| |EXT.R1(a)|PHOTO COPY OF THE DEPOSITION OF THE| ||PETITIONER DATED 18.11.2009.| //TRUE COPY// ## **T.R. RAMACHANDRAN NAIR, J.** **--------------------------------------W.P.(C) No.9655 OF 2010 --------------------------------------Dated this the 31[st] day of May, 2010.** ## **J U D G M E N T** The petitioner herein is aggrieved by Exhibit P8 order passed by the Tribunal for Local Self Government Institutions whereby a revision petition filed by the petitioner stands dismissed. The petitioner started a showroom of Bajaj Motor Bikes within the Chalakudy Municipality area. The petitioner had taken on rent a building owned by one M.G.Joy in the Old Tramway road, Chalakudy for the said purpose. According to the petitioner, it is a commercially important area. 2. It is averred in the writ petition that Exhibit P1 building tax receipts will show that the building is classified as a commercial one. The petitioner had submitted an application dated 15.12.2008 for issuing a licence namely, D & O licence before the Municipality. It is stated that the business was started in the year 2008 itself. **W.P.(C) No.9655/2010** **2** 3. Later objections were raised by the Municipality stating that the building is situated in a residential zone as per the Town Planning Scheme. It appears that the petitioner had approached this Court by filing W.P.(C) No.20449/2009 against Exhibit P4 stop memo. The petitioner was directed to file an appeal before the statutory authority by Exhibit P5 judgment. Accordingly, the petitioner approached the Municipal Council who passed the order Exhibit P6 dismissing the appeal. The same was challenged in revision before the Tribunal. 4. Heard the learned counsel for the petitioner and the learned Standing Counsel for the Municipality. The Tribunal has taken the view that the business for which licence is sought can be conducted only in a building of hazardous occupancy which requires certain conditions to be satisfied. It is also mentioned that a prior permission for establishing a workshop should have been obtained under Section 448 of the Kerala Municipalities Act. 5. Attacking these findings, learned counsel for the petitioner, Sri.V.M.Krishnakumar, submitted that both these reasons cannot be supported. My attention was taken to **W.P.(C) No.9655/2010** **3** Sections 447 and 448 of the Kerala Municipalities Act. It is submitted that showroom for exhibiting Motor Bikes does not require a licence under Section 447 of the Act and therefore, insistence of a licence by the Municipality cannot be supported. It is further pointed out that the area wherein the building is situated is now a commercially important area and therefore, the zonal regulations cannot be invoked by the Municipality to deny licence to the petitioner. 6. Learned counsel for the petitioner relied upon the decisions of this Court in W.P.(C)Nos.11368/2008 and 12073/2009 to contend that the Town Planning Scheme is no longer in existence and therefore, the said objection cannot be supported. 7. Learned Standing Counsel for the Municipality, Sri.M.P.Ashok Kumar, submitted that in the light of the decision of this Court in _**Sivadasan** vs._ _**Mattannur Municipality**_ **(2008(4) KLT 684)** , it cannot be contended that a licence is not required. Reliance is placed on Exhibit R1(a), the deposition made by the petitioner before the Secretary, wherein the **W.P.(C) No.9655/2010** **4** petitioner agreed that the business can be shifted to another place for which she has started preparations and two months time alone is required. It is submitted by the learned Standing Counsel for the Municipality that actually time was granted by the Municipality but the petitioner in the meanwhile approached the Tribunal and this Court by this writ petition. 8. The first question is whether Section 447 of the Kerala Municipalities Act is not at all attracted as contended by the learned counsel for the petitioner. In _**Sivadasan** vs._ _**Mattannur Municipality**_ **(2008(4) KLT 684)** , it was held thus: “A reading of S.447(1) would show that for running a business covered by the rules, if any, prescribed and for other trades also, licence is necessary....” Therein, the decision of a learned Single Judge in _**Shaji** vs._ _**State of Kerala**_ **(2004(1) KLT 118)** which was relied upon by the learned counsel for the petitioner taking a contrary view was overruled. 9. Apart from that, it is pointed out by the learned Standing Counsel for the Municipality that Exhibit P3 notification **W.P.(C) No.9655/2010** **5** issued by the Municipality satisfies the requirements of Section 447. Paragraph 1 of Exhibit P3 specifies that no person shall use any place for any business included in the schedule or for other business without getting a licence. In the schedule also various business items have been mentioned which requires licence from the Municipality. In the light of these aspects and in view of the decision of the Division Bench in _Sivadasan's_ case (supra), licence is required for running the business being conducted by the petitioner and the contentions otherwise made cannot hold good. 10. Then what remains is the question whether the D.T.P. scheme will stand in the way of the petitioner getting a licence for conducting the business in the premises. The issue whether the D.T.P scheme has become redundant is not at all properly raised by the petitioner in the writ petition. Even though the learned counsel vehemently argued that the decisions rendered by this Court in W.P.(C)Nos.11368/2008 and 12073/2009 will apply to the facts of this case also, in the absence of necessary pleadings in the matter, I need not go into the details of these **W.P.(C) No.9655/2010** **6** aspects. Those two judgments concern different local authorities. Hence the said contention also cannot be sustained. 11. The petitioner had already understood the real position, going by the deposition made as Exhibit R1(a). What was sought for is only two months time to shift the business from the rooms concerned. Learned Standing Counsel for the Municipality submitted that no further time can be granted at this stage. But, the petitioner was fighting out the matter before various forums and this Court and the expiry of the period already granted need not stand in the way of sufficient time being granted by the Municipality for shifting the business to a new premises for which a proper licence can be applied for by the petitioner. 12. It is submitted that the petitioner is running the business in the light of the interim order passed by this Court. The petitioner would have invested much money also for the conduct of the business. 13. Therefore, even though the Tribunal has relied upon Section 448 of the Act to reject the revision petition, since the requirement of a licence under Section 447 is mandatory, the **W.P.(C) No.9655/2010** **7** order passed by the Tribunal has to be upheld on other grounds and I do so. Therefore, this writ petition is dismissed. But, if the petitioner files an application before the Municipality within a period of ten days showing an alternate building for shifting the business along with the minimum period required for shifting, the Municipality will consider the same and give a proper reply within a further period of three weeks. The petitioner will be allowed to conduct the business in the same premises till such a reply is communicated to the petitioner by the Municipality and till the expiry of time granted by them. No costs. ## **T.R. RAMACHANDRAN NAIR JUDGE** smp