P.S. Babu v. State of Kerala and Palakkad Municipality and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS WEDNESDAY, THE 20[TH] DAY OF DECEMBER 2023 / 29TH AGRAHAYANA, 1945 WP(C) NO. 41282 OF 2023** ## **PETITIONER :** **P.S.BABU, AGED 62 YEARS, S/O.P.M.SEBASTIAN, PROPRIETOR, UNITED ENTERTAINMENTS, OPPOSITE VIMALANATHA CHURCH, PARAVATTANI, EAST FORT P.O., THRISSUR-680005, RESIDING AT PUTHENVEETTIL HOUSE, EAST FORT.P.O., PARAVATTANI, THRISSUR DISTRICT, PIN – 680 005** **BY ADVS. DINESH MATHEW J.MURICKEN VINOD S. PILLAI RIA VARGHESE MOHAMMED THAYIB N.M. NAYANA VARGHESE JERRY PETER** ## **RESPONDENTS :** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE CHIEF SECRETARY,**| ||**ROOM NO.202, NORTH SANDWICH BLOCK,**| ||**SECRETARIAT ANNEX, STATUE JUNCTION,**| ||**THIRUVANANTHAPURAM GENERAL.P.O.,**| ||**THIRUVANANTHAPURAM DISTRICT, PIN – 685 001**| |**2**|**PALAKKAD MUNICIPALITY,**| ||**MUNICIPAL OFFICE, SANTHI NAGAR,**| ||**KUNNATHURMEDU.P.O., PALAKKAD DISTRICT,**| ||**REPRESENTED BY THE SECRETARY,**| ||**PIN – 678 001**| |**3**|**THE SECRETARY,**| ||**PALAKKAD MUNICIPALITY, MUNICIPAL OFFICE,**| ||**SANTHI NAGAR, KUNNATHURMEDU.P.O.,**| ||**PALAKKAD DISTRICT, PIN – 678 001**| ||**D.J. AMUSEMENTS,**| ||**CHATHAMKANDAM, MANKARA.P.O.,**| |**4**|**PALAKKAD DISTRICT, REPRESENTED BY ITS MANAGING**| ||**PARTNER, DINESH KUMAR.C.K.,**| W.P.(C) No.41282/23 **-:2:-** ## **PIN – 678 613** **BY ADVS. THAREEQ ANVER K P.K.MOHANAN(PALAKKAD)(K/174/1987) MEENA.A.(K/001814/1995) VINOD RAVINDRANATH(K/001479/1999) M.DEVESH(K/1253/2012) K.C.KIRAN(K/621/2006) NIVEDHITHA PREM.V(K/001822/2023) ANISH ANTONY ANATHAZHATH(K/000106/2019) M.R.MINI(K/000153/1996)** **BY ADV.SRI.T.KRISHNANUNNI (SR.), SRI.BINOY VASUDEVAN SMT.SHYNIMOL V.O., GOVERNMENT PLEADER SRI.THAREEQ ANWER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.41282/23 ## **-:3:-** ## **BECHU KURIAN THOMAS, J.** =-=-=-=-=-=-=-=-=-=-=-=-=-= **W.P.(C) No.41282 of 2023** =-=-=-=-=-=-=-=-=-=-=-=-=-= **Dated this the 20[th] day of December, 2023** ## **JUDGMENT** Petitioner challenges Ext.P2 proceedings dated 15.11.2023 rejecting his application for conduct of an exhibition by the name 'Palakkad Fest'. 2. According to the petitioner, by an application dated 14.07.2023, he requested allotment of the Palakkad Municipal Stadium Ground for conducting a consumer exhibition from 05.11.2023 to 15.01.2024. However, by the impugned communication, it was informed that since the application was filed 113 days before the date of exhibition, the application is rejected based on clause (6) of the bye-laws, which require the application to be submitted within 90 days of the date fixed. 3. Petitioner contends that the Municipality had, in the meantime, allotted the Stadium Ground to the 4[th] respondent for conducting an exhibition, stating that their application was 88 days ahead of the period prescribed and, therefore, in view of clause (6), they were entitled to be allotted the Stadium. 4. When the writ petition came up for admission on 11.12.2023, W.P.(C) No.41282/23 ## **-:4:-** this Court issued an interim order staying all further proceedings pursuant to Ext.P2 communication, allotting the ground to the 4[th] respondent. In the meantime, the 4[th] respondent entered appearance and filed a counter affidavit, while respondents 2 and 3 also appeared through their Standing Counsel and filed a statement. 5. Respondents 2 and 3 pleaded that applications submitted by the petitioner and the 4[th] respondent were placed before the Municipal Council on 30.09.2023, and both were directed to be placed before the Finance Standing Committee. It was pointed out that since the Standing Committee noticed that petitioner's application was 113 days before the proposed date for commencing the exhibition, and the 4[th] respondent had preferred the application 88 days before the date proposed, in view of the existing clause (6) of the bye-laws, petitioner's application ought to be rejected, and that of the 4[th] respondent to be allowed on the basis of the first come basis within the 90 days period. It was also pointed out that the decision of the Standing Committee was placed before the Council on 09.11.2023, and it was decided to grant permission to the 4[th] respondent to conduct the exhibition from 11.11.2023 to 08.02.2024, and by Ext.P2 dated 15.11.2023, the petitioner was informed that his application was rejected. 6. The 4[th] respondent, in his counter affidavit stated that after W.P.(C) No.41282/23 ## **-:5:-** obtaining permission to use the Ground, they have spent more than 70 lakhs for the execution of the work and have also made huge installations apart from various persons having been deployed to carry out the work and the exhibition is proposed to be inaugurated today (20.12.2023). It was also stated that various information and entertainment programmes are proposed and an event called 'the Titanic Exhibition' is also scheduled to be held. The 4[th] respondent further stated that they have obtained permission to use loudspeakers from the Kerala Police as per Ext.R4(b) and have also obtained registration from the Food Safety Standards Authority of India, NOC from the Fire and Rescue Services Department and other licences. The 4[th] respondent has also averred that it was only after completing almost 95% of the work for commencing the exhibition that they became aware of the interim order issued by this Court on 11.12.2023. 7. I have heard Sri.Dinesh Mathew J.Muricken, the learned counsel for the petitioner apart from Sri.Binoy Vasudevan, the learned Standing Counsel for respondents 2 and 3, Sri.T.Krishnanunni, the learned Senior Counsel instructed by Sri.Thareeq Anwer, the learned counsel for the 4[th] respondent and Smt.Shynimol V.O., the learned Government Pleader. 8. Section 215 of the Kerala Municipality Act, 1994, deals with W.P.(C) No.41282/23 ## **-:6:-** the power to acquire and dispose of property. It states that in all cases other than renewal of a license or rehabilitation of a licensee, the Municipality has to adopt the process of public auction or tender. The permission to conduct an exhibition on Municipal Ground is certainly a mode of disposing of municipal property for a limited period of time in the form of a licence. As the statute prescribes that the licence can be done only by public auction or tender, the grant of permission on a licence. relying upon a first come basis, is not in accordance with law. 9. The grant of permission to conduct an exhibition in the instant case is based on the applications submitted by individuals. Petitioner's application has been rejected because it was filed 113 days before the proposed date, while the 4[th] respondent's application was allowed because it was filed 88 days before the proposed date. Clause (6) of the bye-laws framed under Section 506 prescribes that if any application is submitted in writing within 90 days of the proposed date of commencement of the programme, the same shall be allowed on the basis of priority. Relying upon clause (6) of the bye-laws, the respondent Municipality has rejected the application of the petitioner stating that he had applied 113 days ahead of the scheduled date of his programme, while accepted the application of the 4[th] respondent, giving him priority, stating that he applied on 88 days prior to the date W.P.(C) No.41282/23 ## **-:7:-** of his programme. 10. Undoubtedly, petitioner's application was pending before the Municipal Council on the 90[th] day before the date proposed by him, and the said application had not been rejected earlier. Therefore, the petitioner ought to have been given priority as long as his application was not rejected on the ground that the application was filed prior to the 90[th] day. Since the application was not rejected it was pending consideration before the Panchayat on the 90[th] day before the date proposed. 11. The manner in which the respondent Municipality has rejected the licence to the petitioner and granted permission to the 4[th] respondent raises more questions than answers. The date of the event was certainly variable, as is evident from the fact that the decision was taken by the Municipality only on 15.11.2023, when the petitioner had requested to start his event from 05.11.2023. Therefore, the manner in which the Municipality had approached the issue of allotment of Municipality Ground to the 4[th] respondent was not a sensible approach. Of course, there are no allegations of any malafides, and the decision was taken by the Committee and approved by the Municipal Council. 12. Notwithstanding the above, the jurisdiction under Article 226 of the Constitution of India need not be invoked even in cases W.P.(C) No.41282/23 ## **-:8:-** where illegalities have been committed since various other factors can be taken into reckoning. Reference in this context is invited to the decision of the Supreme Court in **Gadde Venkateswara Rao v. Government of Andhra Pradesh and Others** [AIR 1966 SC 828] and also that of a Division Bench of this Court in **Rameshan v. Jayavally** [2007 (2) KLT 325]. 13. Considering the amount of investment already made by the 4[th] respondent apart from the date of commencement of the exhibition which is fixed as today, and also the delay in the petitioner filing the writ petition, i.e. only on 06.12.2023, I am of the view that interference with the decision of the Municipality, at this distance of time would cause serious prejudice to the public as well as the 4[th] respondent. In such a view of the matter, I do not find it appropriate to invoke the remedy under Article 226 of the Constitution of India to interfere with the decision of the Municipality. Therefore, this writ petition is dismissed. Sd/- ## **BECHU KURIAN THOMAS, JUDGE** RKM W.P.(C) No.41282/23 ## **-:9:-** ## **APPENDIX OF WP(C) 41282/2023** ## **PETITIONER'S EXHIBITS :** - **Exhibit P1 TRUE COPY OF THE APPLICATION DATED 14.07.2023 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT** - **Exhibit P2 TRUE COPY OF THE COMMUNICATION NO.E628741/2023 DATED 15.11.2023 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER** ## **RESPONDENTS' EXHIBITS :** - **EXHIBIT R4(A) THE TRUE COPY OF THE INVITATION FOR THE INAUGURAL FUNCTION OF THE EVENT** - **EXHIBIT R4(B) THE TRUE COPY OF THE NOT-PRESS MEMO DATED 02/11/2023 SUBMITTED BY THE COUNSEL FOR THE 4TH RESPONDENT HEREIN, WHO WAS THE PETITIONER THEREIN, IN WP(C) 31596/2023** - **EXHIBIT R4(C) THE TRUE COPY OF THE ORDER 08/11/2023 IN WP(C) 31596/2023 OF THIS HON'BLE COURT** - **EXHIBIT R4(D) THE TRUE COPY OF THE ORDER DATED 13/11/023 BEARING NO.E6-28741/2023 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT ALONG WITH THE MINUTES FORMING ITS BASIS** - **EXHIBIT R4(E) THE TRUE COPY OF THE LICENSE TO USE LOUDSPEAKER DATED 13/12/2023 BEARING NO.5000001982-2023-1-01275 ISSUED BY THE KERALA POLICE, PALAKKAD SUB DIVISIONAL OFFICE** - **EXHIBIT R4(F) THE TRUE COPY OF THE REGISTRATION CERTIFICATE DATED 14/12/2023 BEARING NO.21323213000933 ISSUED BY THE** ## W.P.(C) No.41282/23 ## **-:10:-** **COMMISSIONERATE OF FOOD SAFETY, FSSAI** **EXHIBIT R4(G)** **EXHIBIT R4(H)** **EXHIBIT R4(J)** **EXHIBIT R4(I)** **THE TRUE COPY OF THE NO-OBJECTION CERTIFICATE ISSUED BY THE DISTRICT FIRE OFFICER, FIRE AND RESCUE SERVICES, PALAKKAD ON 16/12/2023 AND BEARING NO.DFOPKD/2769/2022-B** **THE TRUE COPY OF THE PHOTOGRAPHS (4 NOS.) TAKEN ON 16/12/2023 OF THE PREMISES IN THE 4TH RESPONDENT'S USE** **THE TRUE COPY OF THE ORDER DATED 11/12/2023 IN WP(C) 41282/2023 OF THIS HON'BLE COURT OBTAINED FROM THE INTERNET** **THE TRUE COPY OF THE PHOTOGRAPH TAKEN OF THE NOTICE DATED 14/12/2023 AND BEARING NO.E6-25214/2023 ISSUED BY THE 3RD RESPONDENT**