KUNJEERYYAKUTTI v. TIRUR MUNICIPALITY

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. ``` ``` MONDAY, THE 8THDAY OF APRIL 2024 / 19TH CHAITHRA, 1946 ``` ## `WP(C) NO. 28093 OF 2023` ## `PETITIONER:` ``` KUNJEERYYAKUTTI, AGED 76 YEARS W/O MUHAMMED, MULIYATHIL HOUSE, TIRUR, MALAPPURAM, PIN - 676101 BY ADVS. K.SUJAI SATHIAN DEEPA NARAYANAN PREETHI. P.V. M.V.BALAGOPAL MARY LIYA SABU GOURI MEEMPAT SANGEETHA SREEKUMAR ``` ## `RESPONDENTS:` ``` TIRUR MUNICIPALITY, TIRUR MUNICIPALITY OFFICE, ``` - `1 GOVERNMENT HOSPITAL ROAD, TIRUR, MALAPPURAM, PIN - 676101 SECRETARY, TIRUR MUNICIPALITY, TIRUR MUNICIPALITY` - `2 OFFICE, GOVERNMENT HOSPITAL ROAD, TIRUR, MALAPPURAM, PIN - 676101 MUNICIPAL COUNCIL, REPRESENTED BY ITS CHAIRMAN` - `3 TIRUR MUNICIPALITY OFFICE, GOVERNMENT HOSPITAL ROAD, TIRUR, MALAPPURAM, PIN - 676101 BY ADV SHRI.SAYED MANSOOR BAFAKHY THANGAL, SC, TIRUR MUNICIPALITY` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ``` ``` ADMISSION ON 08.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 ## JUDGMENT ## Dated this the 8th day of April, 2024 Petitioner offered to surrender 3 cents of property in her ownership and possession in Ward No.18 of Tirur Municipality, Malappuram District, for constructing an Ayurveda dispensary. The resolution was passed unanimously as seen from Ext. P1. Thereafter, by Ext. P2, the Municipal Council decided to acquire 3 more cents of land. Accordingly, the petitioner has executed Ext P3 gift deed in 2021 surrendering 6 cents of property to the 2nd respondent free of cost on the condition that the proposed Ayurveda dispensary should be named after her mother as ‘ Muliyathil Fathima Smaraka Dispensary’. 2. Thereafter, the 2nd respondent issued Ext. P4 notice on 09.06.2023 for convening a meeting of the council on 16.06.2023 for considering an application submitted by one Ibrahim Haji where he offered to surrender 5 cents of property in Sy. No. 397/12-16 in Ward No. 21 for putting up the Ayurveda dispensary. The Municipality, by its decision seen as Ext P6, decided to acquire the property in ward No.21 instead of the petitioner’s property. W.P.(C) No.28093 of 2023 3 3. Learned counsel for the petitioner submits that once a decision is taken to acquire the property free of cost, without modifying the first decision, the second decision - Ext P6, is against Rule 13 of the Kerala Municipality (Procedure for Meeting of Council) Rules, 1995. Prayer in the writ petition is to implement Ext.P2 decision taken by the Municipal Council. 4. A counter affidavit has been filed by respondents 1 and 2 stating that though the land of the petitioner was obtained in the year 2022, Ibrahim Haji, had expressed his readiness to hand over the property in the year 2013 itself which is evident from Ext. R1(a) minutes dated 16.01.2013. In view of the above decisions, the hospital management committee decided to form a four-member committee to conduct a study as per Ext.R1(e) decision dated 25.06.2019. The respondents submit that the 1st respondent by decision No.14 of Ext.P6 decided to get registered 5 cents of property in ward No.21, on the reason that the said property is situated in a more convenient place than the property included in Ext.P3 deed of the petitioner. It is more accessible to the general public and Rs.30,00,000/- was already granted from the MP fund for the construction of the Ayurveda dispensary W.P.(C) No.28093 of 2023 4 in ward no.21, which is seen from Ext.R1(g). A technical report was also obtained by the Municipality which shows that the petitioner’s land situated in ward No.18 is at a one-meter depth to the abutting municipal road and it is not possible to construct the building in conformity with the model published by the National AYUSH Mission, Kerala. 5. The learned counsel for the petitioner submits that going by Rule 13 of the Rules, as stated above, as the earlier decision was not varied, the Municipality was prevented from taking a contrary decision as seen from Ext P6. The judgment in _**Jecco E.G. and another v. Thrissur Municipal Corporation**_ [2015 (5) KHC 705] is cited that when a decision was taken by a resolution, the beneficiaries accrued a statutory benefit/rights under the law, the same can only be taken away by resorting to a legal method, by giving a reasonable opportunity of hearing to the affected persons, and cancellation without doing so is violative of the rules. 6. The learned counsel for the Municipality cites the decision in _**Thrissur Municipal Corporation v. E.G.Jecco @ Jecco George and others**_ [2018 (5) KHC 114] who argued that notwithstanding Rule 13, the Municipality had the inherent power to cancel a decision. The learned W.P.(C) No.28093 of 2023 5 counsel for the Municipality also cites the decision in _**Bava Haji B.M. v. State of Kerala and others**_ [2022 KHC 2305] 7. After hearing the learned counsel on either side, no doubt, it was the petitioner's property which was made available with the Municipality at an earlier point of time and the property was accepted by them on a specific condition that the dispensary would be named petitioner's mother's name. Though the Municipality has varied the same by Ext.P6 and has given reasons to substantiate the same, I do not think that the decision of the Municipality can be sustained, for no notice was given to the petitioner before changing the said decision more so when the petitioner had surrendered the property on a condition and which was accepted by the panchayat. 8. Under such circumstances, fairness demands that the Municipality reconsiders Ext P6. Accordingly, Ext.P6 is quashed. There will be a direction to the Municipality to consider the proposal of the petitioner as well as that of the person who offered land which is mentioned in Ext P6. The Municipality will weigh the pros and cons of both the properties and take a decision with notice to the petitioner and also the person from whom W.P.(C) No.28093 of 2023 6 the land was taken as per Ext.P6. A decision shall be taken within a period of three months from today. In the event, the Municipality decides to put up a dispensary in the property covered by Ext.P6 decision, the Municipality shall assign the property back to the petitioner bearing all the expenses for the same, within two months thereafter. The other remedies of the writ petitioner are left open. The writ petition is disposed of as above. Sd/MOHAMMED NIAS C.P. JUDGE SSK/08/04 W.P.(C) No.28093 of 2023 7 ## `APPENDIX OF WP(C) 28093/2023` ## `PETITIONER EXHIBITS` ``` A. TRUE COPY OF THE RESOLUTION AND DECISION Exhibit P1 OF THE WARD COUNCIL DATED NIL A. TRUE COPY OF THE DECISION OF THE Exhibit P2 MUNICIPAL COUNCIL DATED 13-10-2020 A. TRUE COPY OF THE GIFT DEED NO.1979/2021 Exhibit P3 DATED 13-07-2021 Exhibit P4A. TRUE COPY OF THE NOTICE AND AGENDA OF THE MEETING OF THE MUNICIPAL COUNCIL DATED 09-06-2023 ``` ``` Exhibit P5A. TRUE COPY OF THE DISSENT IN WRITING SUBMITTED BY THE COUNCILLORS TO THE 2ND RESPONDENT DATED NIL A. TRUE COPY OF THE DECISIONS OF THE Exhibit P6 MEETING OF THE COUNCIL HELD ON 16-06-2023 Exhibit R1(a)The true photostat copy of relevant pages dated 16-01-2013 of minutes book maintained by the 1st respondent Exhibit R1(b)The true photostat copy of decision dated 15-07-2015, of the Hospital Management Committee Exhibit R1(c)The true photostat copy of decision dated 27-05-2016, of the Hospital Management Committee Exhibit R1(d)The true photostat copy of decision dated 14-05-2019, of the Hospital Management Committee Exhibit R1(e)The true photostat copy of decision dated 25-06-2019, of the Hospital Management Committee ``` ``` The true copy of relevant pages of INDIAN PUBLIC - HEALTH STANDARDS 2022 for HEALTH Exhibit R1(f)AND WELLNESS CENTRE - SUB HEALTH CENTRE issued by the Ministry of Health and Family Welfare Exhibit R1(g)The true photostat copy of letter dated 12- ``` W.P.(C) No.28093 of 2023 8 ``` 05-2023 issued by the District Collector, Malappuram to 2nd respondent The true photostat copy of gift deed Exhibit R1(h) No.2862 of 2023 of Tirur S.R.O The true photostat copy of relevant pages Exhibit R1(i)of asset register maintained by the 1st ``` ``` respondent The true photostat copy of AYUSH dispensary Exhibit R1(j)model published by the National AYUSH Mission, Kerala The true photostat copy of report along Exhibit R1(k)with site plan dated 21-10-2023, of technical section of 1st respondent A true copy of the RTI application dated EXHIBIT P7 27.01.2023 ``` ``` EXHIBIT P7 (a)[A true Copy of the Answer given by the ] respondent dated 23.02.2023 ```