Muhammed Akram v. Kollam Municipal Corporation and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 26TH DAY OF OCTOBER 2017/4TH KARTHIKA, 1939** ## **OP(C).No. 2201 of 2017 (O) ---------------------------** ## **IA.NOS.NO.799/2017, 818/2017 AND 826/2017 ON THE FILES OF THE PRINCIPAL SUBORDINATE JUDGE'S COURT, KOLLAM -----------------** ## **PETITIONER(S)/PETITIONER/PLAINTIFF:** **----------------------------------** **MUHAMMED AKRAM, AGED 43 YEARS, SON OF ABOOBAKKER, SAKEENA MANZHIL, THATTAMALA PO, KOLLAM 691020.** **BY ADVS.SRI.B.ASHOK SHENOY SRI.K.V.GEORGE SRI.P.N.RAJAGOPALAN NAIR SRI.P.S.GIREESH SRI.RIYAL DEVASSY** ## **RESPONDENT(S)/RESPONDENTS/DEFENDANTS: -------------------------------------** **1. THE MUNICIPAL CORPORATION KOLLAM 691001, REPRESENTED BY ITS SECRETARY** **2. SECRETARY** **MUNICIPAL CORPORATION, KOLLAM 691001** **3. THE MAYOR,** - **MUNICIPAL CORPORATION, KOLLAM 691001** ## **4. V.R. RAJU** **AGED 52 YEARS, SON OF V.C. RAJAN, NOW OFFICIATING AS SECRETARY, MUNICIPAL CORPORATION, KOLLAM 691001** **R1-R4 BY ADV. SRI.M.K.CHANDRA MOHAN DAS, SC, KOLLAM MPT** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 26-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP(C).No. 2201 of 2017 (O) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** **EXHIBIT P1 TRUE COPY OF THE ORDER DATED 19.05.2016 IA.NO. 440/2016 IN OS.NO. 18/2016 ON THE FILE OF PRINCIPAL SUBORDINATE JUDGE'S COURT, KOLLAM EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 27.07.2016 IN OPC.NO. 1772/2016 BEFORE THIS HON'BLE COURT EXHIBIT P3 TRUE COPY OF THE RECEIPT NO. ED00095473 DATED 19.09.2016 ISSUED BY KERALA WATER AUTHORITY EXHIBIT P4 TRUE COPY OF THE RECEIPT NO. 01/11601400048 DATED 26.09.2016 ISSUED BY THE 1ST RESPONDENT TO PETITIONER EXHIBIT P5 TRUE COPY OF THE NOTICE NO. R13-25251/10 DATED 23.06.2017 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER EXHIBIT P6 TRUE COPY OF THE ORDER DATED 13.07.2017 IN IA.NOS.NO. 799/2017 , 818/2017 AND 826/2017 ON THE FILES OF THE PRINCIPAL SUB ORDINATE JUDGE'S COURT, KOLLAM EXHIBIT P7 TRUE COPY OF THE TENDER NOTICE NO. R13-25251/10 DATED 19.03.2016 ISSUED BY 2ND RESPONDENT** **RESPONDENT'S EXHIBITS: NIL** **//TRUE COPY//** **P.A. TO JUDGE** **STK** ## **ANIL K. NARENDRAN, J. -------------------------------O.P.(C)No.2201 of 2017 ----------------------------------** Dated this the 26[th] day of October, 2017 ## **JUDGMENT** The petitioner, who is the plaintiff in O.S.No.18/2016 on the file of the subordinate Judge's Court, Kollam is before this Court in this Original Petition filed under Article 227 of the Constitution of India seeking an order to set aside the P6 order dated 13.07.2017 of the said court in I.A.Nos.799, 818 and 826/2017. The petitioner has also sought for other consequential reliefs, so as to enable him to run and maintain the Municipal Park (Mahatma Gandhi Park) owned by the first respondent Municipality, in terms of Ext.P1 order in I.A.No.440/2016, in O.S.No.18/2016, as confirmed by Ext.P2 judgment of this Court dated 27.07.2011 in O.P.(C) No.1772/2016. 2. On 20.07.2017, this Court admitted the Original Petition on file and the parties were directed to maintain _status quo_ as on that date. The said interim order was extended from time to time till 28.07.2017. ## **O.P.(C)No.2201 of 2017** ## **-: 2 :-** 3. A counter affidavit has been filed on behalf of the first and the second respondents, contending that Ext.P6 order passed by the court below is perfectly legal, which warrants no interference in this Original Petition. 4. Heard the learned counsel for the petitioner/plaintiff and also the learned Standing Counsel for Kollam Municipal Corporation, representing the respondents/defendants. 5. The sole issue that arises for consideration in this Original Petition is as to the legality or otherwise of Ext.P6 order passed by the court below. 6. O.S.No.18/2016 is one filed by the petitioner/ plaintiff seeking a decree declaring his right to get the period of contract for construction and maintenance of Mahatma Gandhi park owned by Kollam Municipal Corporation extended for a further period of ten years. The plaintiff has also sought for a mandatory injunction commanding the defendants to extend the period of contract for the aforesaid period and other consequential ## **O.P.(C)No.2201 of 2017** ## **-: 3 :-** reliefs. In the said suit, the petitioner filed I.A.No.440/2016, an application under Order XXXIX Rule 1 of the Code of Civil Procedure, 1908 (for briefly, 'the Code') seeking an order of temporary injunction. After considering the rival contentions, the court below by Ext.P1 order allowed the said Interlocutory application and the operative portion of the said order reads thus: “There is an order of temporary prohibitory injunction restraining the respondents from calling tenders or inducting a new contractor of the M.G. Park and the beach till the disposal of the suit, subject to following conditions: - 1.The petitioner shall clear arrear amount of Rs.4,86,184/- as demanded in Ext.B1 within a period of 4 months from today. - 2.The petitioner shall pay monthly rent @ Rs.1,60,000/- from 05.10.2015 (rent of 9/15 onwards). A period of 4 months granted to clear the arrears. - 3.It is made clear that the petitioner has no right to make any constructions of permanent nature in the premises without the permission of the respondents. - 4.If conditions 1 and 2 are violated the ## **O.P.(C)No.2201 of 2017** ## **-: 4 :-** respondents are free to produce (sic: proceed) with tender and evict the petitioner.” 7. Ext.P1 order of injunction granted by the court below was under challenge before this Court in O.P.(C) No.1772/2016 filed by the plaintiff. The said Original Petition was disposed of by Ext.P2 judgment dated 27.07.2016 and paragraphs 5 and 6 of the said judgment reads thus; “5. The petitioner is a person who is in possession of the property as a successful bidder in the earlier auction conducted by the Corporation. The term of contract is over and thereafter the petitioner wants to exercise the option provided in the tender to renew his term of contract. That was objected to by the Corporation on the ground that huge amount is in arrear and the Corporation proceeded with the process of calling fresh tender. At that time, the present suit as O.S.No.18/2016 has been filed by the petitioner and interim injunction application was also filed. It is after hearing both sides and after considering the documents produced by either side, the court below had passed the interim order with conditions attached to that as extracted above. The petitioner is bound to comply with the conditions ## **O.P.(C)No.2201 of 2017** ## **-: 5 :-** and no one is entitled to be in possession of the government property without paying the amount due to the authorities. 6. However, since the petitioner has already filed another suit challenging the quantum of arrears claimed, the question regarding the arrears has to be considered in that suit on the basis of evidence independently. In order to grant the interim injunction order, the court below has exercised the discretion and imposed certain conditions which this Court did not find any reason to interfere. The liability to pay the amount can be considered by the respective courts on the basis of the evidence to be adduced in that suit independently. If the petitioner succeeds in that suit then the deposit will be subject to the result of that suit. So the petitioner is bound to comply with the conditions now imposed by the learned Principal Sub Judge, Kollam for the purpose of maintaining the injunction sought for in the application. The right of the Corporation to challenge the maintainability of the suit is left open and if such a question is raised and they wanted to decide the same as a preliminary point that also can be considered by the learned Principal Sub Judge, Kollam in accordance with law.” 8. Going by the conditions stipulated in Ext.P1 ## **O.P.(C)No.2201 of 2017** ## **-: 6 :-** order of injunction, the plaintiff has to clear the arrears amounting to Rs.4,86,184/-, as demanded in Ext.P1, within a period of four months from the date of that order. The further condition imposed in Ext.P1 order of injunction is that the plaintiff shall pay monthly rent at the rate of Rs.1,60,000/- from 5.10.2015 (rent of 9/15 onwards). A period of four months was granted to clear the arrears. As per condition No.4 in Ext.P1 order, if condition Nos.1 and 2 are violated, the defendants are free to proceed with the tender and evict the plaintiff. 9. After referring to the conditions stipulated in Ext.P1 injunction order, the learned counsel for the petitioner/plaintiff would contend that violation of both the conditions referred to above, i.e., condition Nos.1 and 2 of Ext.P1 order, is essential for attracting condition No.4. The said contention cannot be accepted. Once the plaintiff has defaulted payment of monthly rent, the defendants are free to proceed with the tender and evict him from the premises. ## **O.P.(C)No.2201 of 2017** ## **-: 7 :-** 10. The fact that the plaintiff defaulted payment of monthly rent at the rate of Rs.1,60,000/- from July 2016 onwards, is not in dispute. It is an admitted fact that till the filing of I.A.Nos.799/2017 under Section 148 of the Code seeking enlargement of time, the plaintiff has not taken any steps to pay arrears of rent from July 2016. He moved I.A.No.799/2017 seeking enlargement of time only after the receipt of Ext.P5 notice dated 23.06.2017 issued by the first defendant Municipality. Though under Section 148 of the Code, the court has ample power to enlarge the time already granted, even after the expiry of the said period, such power can be exercised only on genuine grounds. 11. In the instant case, the plaintiff who has defaulted payment of monthly rent from July 2016 has chosen to file such an application under Section 148 of the Code only one year after the expiry of the said period. In such circumstances, the court below cannot be found fault with in dismissing I.A.No.799/2017 by Ext.P6 order. ## **O.P.(C)No.2201 of 2017** ## **-: 8 :-** Once I.A.No.799/2017 stands dismissed, I.A.No.818/2017 filed for restoration of possession and I.A.No.826/2017 for prohibitory injunction restraining defendants 2 and 3 from proceeding with the tender process can only be dismissed. 12. The plaintiff has also moved I.A.No.813/2017, an application filed under Order XXXIX Rule 2A of the Code alleging violation of the order of injunction. In Ext.P3 order, the court below observed that, the question whether the defendants have violated the status quo order dated 31.03.2017 passed in I.A.No.440/2016 is a matter to be adjudicated only after collecting evidence in a separate proceedings. 13. In **Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329]** the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of ## **O.P.(C)No.2201 of 2017** ## **-: 9 :-** justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. 14. In **Sobhana Nair K.N. v. Shaji S.G.Nair (2016 (1) KHC 1)** a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the ## **O.P.(C)No.2201 of 2017** ## **-: 10 :-** decision of the lower court or tribunal is in direct conflict with settled principle of law. 15. It was after considering the rival contentions, with reference to the pleadings and materials on record, that the court below arrived at a conclusion in Ext.P6 order that the petitioner/plaintiff is not entitled for the reliefs prayed for in I.A.Nos.799/2017, 818/2017 and 826/2017. The reasoning of the court below as contained in Ext.P3 order, is neither perverse nor patently illegal warranting an interference of this Court in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. 16. In the result, this Original Petition fails and the same is accordingly dismissed. The learned counsel for the petitioner/ plaintiff seeks an early disposal of O.S.No.18/2016. The suit is of the year 2016. It is for the petitioner/plaintiff to move an application before the court below for expeditious disposal of the suit. If any such application is made, the said court ## **O.P.(C)No.2201 of 2017** **-: 11 :-** shall consider the same and pass appropriate orders thereon. sd/- **ANIL K. NARENDRAN, JUDGE** **//TRUE COPY//** **P.A. TO JUDGE** **STK**