Secretary-Registrar, Suresh Kumar.K, Technopark v. Municipal Corporation of Thiruvananthapuram and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.** **FRIDAY, THE 26[TH] DAY OF JULY 2024 / 4TH SRAVANA, 1946** **WA NO.967 OF 2024** **AGAINST THE JUDGMENT DATED 30.11.2023 IN WP(C) NO.27360 OF 2023 OF** **HIGH COURT OF KERALA** ## **APPELLANT:** **SECRETARY-REGISTRAR, SURESH KUMAR.K,TECHNOPARK AGED 50 YEARS S/O.SRI.KUTTAN NAIR, SREEVALLABHAM, OORUTTAMBALAM, MALAYINKEEZHU, MARANALLOR, THIRUVANANTHAPURAM, PIN - 695507** **BY ADVS. K.V.RASHMI ANIL THOMAS(T)** ## **RESPONDENTS:** - **1 THE MUNICIPAL CORPORATION OF THIRUVANANTHAPURAM, REP. BY ITS SECRETARY VIKAS BHAVAN.P.O, THIRUVANANTHAPURAM, KERELA, PIN - 695033** - **2 STATE OF KERALA, REP. BY ITS SECRETARY. LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695005** - **3 SECRETARY TO GOVERNMENT, ELECTRONIC AND IT DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695005** - **4 JITHU SUKUMARAN NAIR TC 98/105, SUBWAY RESTURANT, TECHNOPARK, THIRUVANANTHAPURAM, PIN - 695581** **BY ADV.SUMAN CHAKRAVARTHY, SC** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 26.07.2024,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WA NO.967/2024** **2** ## **JUDGMENT** ## **Syam Kumar V.M., J.** This Writ Appeal is filed from the judgment dated 30.11.2023 in W.P.(C) No.27360 of 2023 of the learned Single Judge. Appellant and the respondents were the petitioner and the respondents respectively in the said W.P.(C). ## **F acts in brief** : 2. Appellant is the Secretary- Registrar of a Society which has been registered under the Travancore Cochin Literary Scientific and Charitable Societies Registration Act, 1955 and is fully owned by the Government of Kerala. The objective of the said Society, (hereinafter referred to as the ‘Technopark’) is to foster the development of IT/ITES investment in Kerala and to create infrastructure for Companies in the said field. The Government of Kerala had allocated land and infrastructure for the Technopark and has by invoking the provisions of the Kerala Industrial Infrastructure Development Act, 1992 notified certain areas within the Technopark as an ‘industrial area’. A Single Window Clearance Board has also been constituted for Technopark as envisaged under the Kerala Industrial Single Window Clearance Board and Industrial **WA NO.967/2024** **3** Township Area Development Act, 1999. It is contended by the appellant that by virtue of the notification issued declaring Technopark as an “industrial area”, no prior licence, permission need be obtained from the local Government institution, viz., the 1st respondent Municipal Corporation, before effecting constructions etc. within the Technopark ‘industrial area’. The grievance of the appellant is that notwithstanding the above, the 1st respondent Municipal Corporation had been levying tax from the areas notified as ‘industrial area’ situated within the Technopark. Appellant contends that the 1st respondent has no authority or jurisdiction to do so. The appellant had hence filed W.P.(C)No.33694 of 2022 before this Court challenging the levy of property tax on the buildings owned by the appellant. An interim stay (Ext.P4) had been granted by this Court in the said W.P.(C). While so, the appellant had issued to the 4th respondent a licence/NOC to conduct from within the Technopark a hotel/restaurant (under the trade name 'Subway') and the 4th respondent had been running the said establishment on the strength of such licence. However, when the 4th respondent approached the 1st respondent Municipal Corporation to renew the trade licence mandated under the Kerala Municipality Act,1994 it was declined by the 1st respondent on the premise that the 4th respondent had along with the application produced **WA NO.967/2024** **4** only an NOC issued by the appellant instead of the property tax receipt evidencing payment of property tax to the 1st respondent with respect to the relevant building. The 1st respondent thus informed the 4th respondent that since the property tax due to the 1st respondent with respect to the building from which the 4th respondent operates has not been remitted and the tax receipt not produced, the application for trade licence cannot be considered. The 1st respondent thereafter issued Ext.P7 notice to the 4th respondent informing that the application for trade licence has been rejected for the selfsame reason. The 4th respondent was vide Ext.P7 also informed that conducting the establishment without a trade licence is illegal as per the relevant provisions of the Municipality Act and hence the 4th respondent has to immediately stop the functioning of the establishment from the relevant premises within Technopark. Appellant contends that Ext.P7 notice issued by the 1st respondent to the 4th respondent is illegal, arbitrary and unsustainable and that the 1st respondent ought to have renewed the trade licence of the 4th respondent accepting the NOC issued by the appellant in lieu of the property tax receipt. Appellant filed the W.P.(C) thus challenging Ext.P7 notice, seeking to quash the same and also praying for issuance of a writ of mandamus directing the 1st respondent Municipal **WA NO.967/2024** **5** Corporation to issue trade licence to the 4th respondent without insisting on the payment of property tax or production of property tax receipt. ## **Judgment in the WP (C):** 3. The learned Single Judge dismissed the W.P.(C) holding that the 4th respondent is an independent entity and therefore, the writ petition filed by the appellant impugning Ext.P7 decision of the 1st respondent Municipal corporation is not maintainable. The said judgment of the learned Single Judge is challenged in this Writ Appeal. 4. Heard Smt.Rashmi.K.V., learned counsel appearing on behalf of the appellant. Sri.Suman Chakravarthy, learned counsel appearing on behalf of respondents 1 and 3 and the learned Government Pleader appearing for the 2nd respondent were also heard. ## **Contentions of the appellant:** 5. It was contended by the learned counsel for the appellant that the learned Single Judge erred in concluding that the appellant does not have locus standi to prefer the Writ Petition. According to her, the person really aggrieved by Ext.P7 notice is the appellant in so far as the 4th respondent had been permitted to occupy the premises by the appellant and thus the appellant becomes answerable to the facilities allotted to the 4th **WA NO.967/2024** **6** respondent within its premises. The learned counsel further contends that the 1st respondent has no right, power or authority to issue Ext.P7 notice to the 4th respondent since with the constitution of the Board under the 1992 Act, the 1st respondent has no power whatsoever to insist on property tax or exercise any jurisdiction over the premises which has been declared as an ‘industrial area’. Basing on Exts.P1, P2 and P3 notifications and on P8 judgment of this Court in W.P.(C) No. 3603 of 2016, the learned counsel contends that since the Board has already been constituted for issuance of licences, the 1st respondent has no authority to issue Ext.P7. The learned counsel also contends that the appellant Technopark had issued NOC to the 4th respondent since it is convinced that the 4th respondent has been conducting business following all legal mandates and without violating any rules. Hence the 1st respondent ought not to have rejected the application for renewal preferred by the 4th respondent on the premise that property tax is outstanding from the appellant and must have issued the trade licence accepting the NOC issued by the appellant. The learned counsel also relies on Ext.P4 interim stay order in W.P.(C) No.33694 of 2022 filed by the appellant. In the said W.P.(C), the authority of the 1st respondent to levy property tax upon the buildings situated within the industrial area **WA NO.967/2024** **7** designated with the Technopark has been challenged. In view of the interim stay granted therein, the 1st respondent ought not have insisted on the production of property tax receipt, contends the learned counsel for the appellant. ## **Contentions of the respondents:** 6. Per contra, the learned counsel appearing for the 1st and 3rd respondents submitted that mere constitution of a Board under the 1992 Act does not take away the powers of the 1 st respondent Municipal Corporation to levy property tax or to take steps towards collection of the said tax from defaulters. The authority of the 1st respondent to insist on trade licences on commercial/trade establishments operating from within its jurisdiction is also not taken away merely because an industrial area has been declared under the relevant statute. The learned counsel further contends that the W.P.(C) was rightly dismissed in limine by the learned Single Judge in so far as Ext.P7 notice, which was sought to be quashed, had been issued to the 4th respondent and not to the appellant. If at all there could be any person aggrieved by Ext.P7 and wished to challenge the same, that could only be the 4th respondent. Since the 4th respondent has not chosen to prefer a W.P.(C) or to challenge Ext.P7, the learned counsel submits that there was a total lack of locus standi in the appellant to prefer the same and hence according **WA NO.967/2024** **8** to him, the W.P.(C) was validly dismissed at the threshold by the learned Single Judge. ## **Discussion and findings:** 7. The learned Single Judge had dismissed the W.P.(C) holding that grievance, if any, regarding Ext.P7 would subsist only in the 4th respondent and not in the appellant. The appellant contends that since the consequence of Ext.P7 is to lead to the closure of the establishment run by the 4th respondent from the premises licensed to it by the appellant, Ext.P7 has an effect of detrimentally impacting the appellant also. To the said extent appellant claims to possess locus standi to prefer the W.P.(C) challenging Ext.P7. It thus becomes necessary to examine whether the appellant possess the locus standi to seek a writ of certiorari to quash Ext.P7 invoking the extraordinary jurisdiction vested in this Court under Article 226 of the Constitution of India. ## **On locus standi :** 8. The easiest of the definitions of locus standi is the one given in the Black's Law Dictionary (Sixth Edition). It reads as follows: > "A right of appearance in a court of justice, or before a legislative body, on a given question". **WA NO.967/2024** **9** 9. The concept of locus standi has had a checkered history in Indian constitutional jurisprudence. It has never been captive and has evolved along with the development of constitutional law. In the context of invoking constitutionally guaranteed rights, locus standi has been explained as the foundation of the exercise of jurisdiction vested in the High Courts under Article 226 of the Constitution. ( **State of Orissa v. Madan Gopal Rungta** ([1952] S C.R. 28); **Charanjit Lal Chowdhury v. Union of India and others [(1950) S.C.R. 869]; Calcutta Gas Co. (Proprietary) Ltd. v. State of West Bengal and others** (AIR 1962 SC 1044); **Gadde Venkateswara Rao v. Government of Andhra Pradesh and others** (AIR 1966 SC 828) 10. Some exceptions to the principles governing locus standi were carved out later so as to accommodate public interest litigations concerning enforcement of fundamental rights. The objective of such relaxation was to ensure that legal wrong wherever done or legal right wherever violated, must not go unaddressed for lack of amenities or due to any other disability to approach the court. [ **Hussainara Khatoon and others v. Home Secretary, State of Bihar** [(1980) 1 SCC 81]; **Sheela Barse v. State of Maharashtra** (AIR 1983 SC 378); **Sunil Batra v. Delhi Administration and others** [(1978) 4 **WA NO.967/2024** **10** SCC 494]; **Municipal Council, Ratlam v. Vardichan and others [** (1980) 4 SCC 162]; **M.C. Mehta (II) v. Union of India and others** (AIR 1988 SC 1115), **PT. Parmanand Katara v. Union of India and others** (AIR 1989 SC 2039); **S. P. Gupta v. Union of India and another** (AIR 1982 SC 149)]. That the relaxation of locus standi needs to be approached with due care and caution as to prevent its misuse is also a trite proposition in this respect ( **Dattaraj Nathuji Thaware v. State of Maharashtra and others** (AIR 2005 SC 540) and **Common Cause (A Registered Society) v. Union of India and others** (2008 SCC OnLine SC 664). In **Vinoy Kumar v. State of UP and others** [(2001) 4 SCC 734], it was held by the Supreme Court that ; “Generally speaking, a person shall have no locus standi to file a writ petition if he is not personally affected by the impugned order or his fundamental rights have neither been directly or substantially invaded nor is there any imminent danger of such rights being invaded or his acquired interests have been violated ignoring the applicable rules. The relief under Article 226 of the constitution is based on the existence of a right in favour of the person invoking the jurisdiction. The exception to the general rule is only in cases where the writ applied for is a writ of habeas- corpus or quo warranto or filed in public interest.” In **Ayaaubkhan Noorkhan Pathan v. State of Maharashtra** **and others** [(2013) 4 SCC 465 ], the Supreme Court held as follows: **WA NO.967/2024** **11** “Thus, from the above it is evident that under ordinary circumstances, a third person, having no concern with the case at hand, cannot claim to have any locus standi to raise any grievance whatsoever. However, in exceptional circumstances as referred to above, if the actual persons aggrieved, because of ignorance, illiteracy, inarticulation or poverty, are unable to approach the court, and a person, who has no personal agenda, or object, in relation to which, he can grind his own axe, approaches the court, then the court may examine the issue and in exceptional circumstances, even if his bona fides are doubted, but the issue raised by him, in the opinion of the court, requires consideration, the court may proceed suo moto, in such respect.” ## **Writ of certiorari and locus standi :** 11. Insistence on locus standi in writs seeking issuance of certiorari has been held to be on a higher footing when compared to writs seeking habeas corpus or quo warranto wherein a rather relaxed regime of locus standi has been permitted. In order to have the locus standi to invoke certiorari jurisdiction, it was held by the Supreme Court that the petitioner should be an "aggrieved person", and in a case of defect of jurisdiction, such a petitioner shall be entitled to a writ of certiorari as a matter of course, but if he does not fulfill that character and is a "stranger" the court will, in its discretion, deny him this extraordinary remedy, save in exceptional circumstances [ **Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed and others** [ (1976) 1 SCC 671)]. **WA NO.967/2024** **12** 12. The cardinal principles of law governing exercise of extraordinary jurisdiction under Article 226 of the Constitution more particularly when it comes to issue of writ of certiorari were laid down by the Supreme Court in **Central Council for Research in Ayurvedic Sciences & anr. v. Bikartan Das and others (** 2023 SCC OnLine SC 996), which reads as follows : “The first cardinal principle of law that governs the exercise of extraordinary jurisdiction under Article 226 of the Constitution, more particularly when it comes to the issue of a writ of certiorari, is that in granting such a writ, the High Court does not exercise the powers of Appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The writ of certiorari can be issued if an error of law is apparent on the face of the record. A writ of certiorari, being a high prerogative writ, should not be issued on mere asking.” 13. It is in the backdrop of the above set precedents that the question whether the appellant has the right to file the W.P. (C) out of which the present appeal has arisen is to be answered. It is trite that generally, only a person whose rights are alleged to have been threatened or transgressed can approach this Court invoking the jurisdiction of this Court under Article 226 of the Constitution of India. The discretionary nature **WA NO.967/2024** **13** of the jurisdiction exercised under Article 226 of the Constitution and that it has to be exercised only in extraordinary circumstances in matters pertaining to proceedings and adjudicatory scheme qua a statute, more so in commercial matters involving a lender and a borrower, when the legislature has provided for a specific mechanism for appropriate redressal has been highlighted in **M/s.South Indian Bank Ltd. and others v. Naveen Mathew Philip and another** [(2023) SCC OnLine SC 435]. The rigidness and strict insistence on locus standi could thus be justifiably relaxed depending on facts and circumstances peculiar to the case by a cautious exercise of discretion vested in this court. ## **Stay Order in W.P.(C) No.33694 of 2022:** 14. As regards the contention of the learned counsel for the appellant based on Exts.P1 to P3, that an NOC from the appellant would suffice for the issuance or renewal of the trade licence and that the 1st respondent cannot insist on the production of property tax receipts with respect to the building wherein the trade licence is sought to be issued, the said contention is not sustainable since the said question already stands answered against the appellant vide judgment dated 30.11.2023 in W.P.(C) No.33694 of 2022 and the challenge against the said judgment by the appellant was negatived by **WA NO.967/2024** **14** this Court in W.A.No.757 of 2024. The further contention that Ext.P7 notice is unsustainable in the light of the interim order issued by this Court in W.P.(C) No.33694 of 2022, also has to fail for the same reason. ## **Conclusion:** 15. Ext.P7 has been issued to the 4th respondent by the 1st respondent in response to an application preferred by the former seeking renewal/ issuance of trade licence. Grievance, if any, with respect to Ext. P7 thus lies only in the 4th respondent. Even assuming that the appellant has some interests in the 4th respondent continuing to run the establishment in its building based on the licence issued, that does not by itself shift the legal right to challenge Ext.P7 issued to the 4th respondent exclusively on to the appellant. It is settled law that except in the case of writs like habeas corpus or quo warranto, writ remedy is not meant to be generally invoked by a proxy as is, in fact, done by the appellant in the present case. No compelling circumstance has been pointed out to justify the appellant stepping into the shoe of the 4th respondent to prefer the W.P.(C) challenging Ext.P7 issued to the 4th respondent. Hence the finding of the learned Single Judge that the 4th respondent is an independent entity and the W.P.(C) filed by the appellant impugning Ext.P7 decision of the 1st respondent is not maintainable, is valid, **WA NO.967/2024** **15** subsisting and does not call for any interference. For the reason stated above, the appeal fails and it is dismissed. No costs. Sd/- **DR. A.K.JAYASANKARAN NAMBIAR JUDGE** Sd/- **SYAM KUMAR V.M. JUDGE** csl