Shalif Mohammed Nahas v Kochi Municipal Corporation and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 31ST DAY OF MAY 2019 / 10TH JYAISHTA, 1941** ## **WP(C).No. 3343 of 2019** ## **PETITIONER/S:** **SHALIF MOHAMMED NAHAS, AGED 28 YEARS RESIDING AT 6124, PRESTIGE NEPTUNE COURTYARD, MARINE DRIVE, COCHIN - 18.** **BY ADVS. SRI.K.JAJU BABU (SR.) ATHIRA T.S SMT.M.U.VIJAYALAKSHMI** ## **RESPONDENT/S:** **1 THE KOCHI MUNICIPAL CORPORATION, BOAT JETTY, ERNAKULAM - 682 011 REPRESENTED BY ITS SECRETARY. 2 THE SECRETARY, KOCHI MUNICIPAL CORPORATION, BOAT JETTY, ERNAKULAM - 682 011. 3 SRI. NORMAN JOSEPH, RESIDING AT ALUNKAL HOUSE, ELAMKULAM VILLAGE, KADAVANTHRA DESOM, KADAVANTHRA ERNAKULAM - 682 020** **BY ADVS. SMT.SAREENA GEORGE,SC,COCHIN CORPORATIO SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No. 3343 of 2019 2 ## **JUDGMENT** The petitioner, who is stated to be the sole proprietor of M/s. 24 Hour-Quick Convenience Store and Snack Bar, has filed this writ petition under Article 226 of the Constitution of India, seeking the following reliefs: - i) issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 and 2 to consider Ext.P4 in the light of Ext.P5 to P7 and issue D&O License to the petitioner in Form No.2 under Rule 6 of the Kerala Municipality (Dangerous and Offensive Trades and Factories Licensing) Rules 2011 forthwith. - ii) issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 and 2 to issue D&O License in the prescribed Form No.2 pursuant to Ext.P6 and P7 forthwith. - iii) issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 and 2 not to act upon Ext.P9 without notice and opportunity for hearing the petitioner. - iv. declare that Ext.P5 submitted by the 3[rd] respondent is not liable to be acted upon by the respondents 1 and 2 against Ext.P5 NOC so long as the lease arrangement as per Ext.P1 and P2 is in force in the light of the decision of this Hon'ble Court in Vidya Jyothi Traders vs. WP(C).No. 3343 of 2019 3 Municipal Corporation of Thrissur, 2018 (4) KLT 1112. v. issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 and 2 to conduct a proper enquiry into the unauthorized conduct of business in the residential building of the 3[rd] respondent as mentioned in paragraph 11 and 12 of the Writ Petition and take appropriate action in accordance with law. - vi. issue such other and further reliefs as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. 2. On 5.2.2019 when this writ petition came up for admission, the learned Standing Counsel for the 1[st] respondentCorporation sought time to get instructions and for filing statement/counter affidavit. Urgent notice by speed post was ordered to the third respondent, returnable within two weeks. The writ petition was ordered to be listed immediately after service of notice. This court has granted an interim order, whereby the second respondent was directed to issue provisional licence to the petitioner till 31.3.2019. 3. Respondents 1 & 2 have filed counter affidavit, opposing the reliefs sought for in this writ petition. WP(C).No. 3343 of 2019 4 4. A counter affidavit has also been filed by the 3[rd] respondent, opposing the reliefs sought for in this writ petition. 5. On 10.4.2019, along with I.A.No.3 of 2019, the petitioner has produced certain additional documents as Exts.P12 to P14. As per Ext.P14 proceedings dated 25.3.2019, the application made by the petitioner for licence stands rejected. Along with the said interlocutory application, the petitioner has also filed I.A.No.2 of 2019, seeking an order directing respondents 1 and 2 to provisionally renew Ext.P12 licence, for the year 2019-20 or to maintain status quo. 6. On 23.5.2019, the petitioner has produced certain additional documents along with I.A.No.5 of 2019. The document marked as Ext.P15 is an appeal filed before the Municipal Council under the provisions of the Kerala Municipality Act, 1994, challenging Ext.P14 order, which is accompanied by Ext.P16 application for interim relief to open the shop room in question and permit the petitioner to conduct business till disposal of Ext.P15 appeal. Ext.P17 is an order dated 28.4.2019 of the 2[nd] respondent, whereby the Health Inspector, Circle No.12, has been WP(C).No. 3343 of 2019 5 authorised to seal the shop room on the ground that the petitioner is conducting business without licence. The document marked as Ext.P17(a) is a notice pasted in the premises and Ext.P18 is a mahazar prepared on 6.5.2019 while sealing the premises. 7. By order dated 24.5.2019, this Court has made it clear that the pendency of the writ petition will not stand in the way of the appropriate authority in considering and passing appropriate orders on Ext.P16 interlocutory application filed in Ext.P15 appeal, with notice to the petitioner and also to the 3[rd] respondent. 8. On 30.5.2019, when this writ petition came up for consideration, the petitioner has filed I.A.No.6 of 2019, seeking an order to accept Exts.P19 and P20 as additional documents. Ext.P19, according to the petitioner, is the list of articles available in the shop room, as on 6.5.2019, when the shop room was sealed, and Ext.P20 is a list of articles that were removed from the shop room on 6.5.2019. Along with I.A.No.6 of 2019, the petitioner has filed I.A.No.7 of 2019, seeking an order to restore possession of the premises sealed in terms of Ext.P18 WP(C).No. 3343 of 2019 6 proceedings, on such conditions as this Court may deem fit and proper to impose. 9. On 30.5.2019, when this writ petition came up for consideration, the learned Senior Counsel for the petitioner submitted that the petitioner proposes to file an application to amend the writ petition. 10. Today when the case is taken up for consideration, Sri.P.Gopinath Menon, the learned Senior Counsel for the petitioner seeks permission to withdraw this writ petition, without prejudice to the right of the petitioner to file a fresh writ petition, in view of the subsequent developments, seeking appropriate reliefs. 11. The learned counsel for the third respondent would point out that, since Ext.P15 appeal filed by the petitioner challenging the rejection of the application for licence to run the shop room in question is pending consideration before the appellate authority, along with Ext.P16 application for interim relief, the petitioner is not entitled to agitate the very same issue by filing a fresh writ petition. Based on the submission made by the learned Senior WP(C).No. 3343 of 2019 **==> picture [8 x 9] intentionally omitted <==** Counsel for the petitioner, this writ petition is dismissed as withdrawn, leaving open the legal and factual contentions raised by both sides, and without prejudice to the right of the petitioner to pursue Exts.P15 appeal and P16 interlocutory application, pending before the appellate authority, and also the legal right, if any, to approach this Court, seeking any relief legally permissible under Article 226 of the Constitution of India. All pending interlocutory applications are closed. **SD/-** **ANIL K.NARENDRAN** shg **JUDGE** WP(C).No. 3343 of 2019 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE LEASE AGREEMENT DATED 01.11.2018 EXECUTED BETWEEN THE PETITIONER AND THE 3RD RESPONDENT.** **EXHIBIT P2 COPY OF THE WRITTEN CONSENT DATED 07.01.2019 EXECUTED BY THE 3RD RESPONDENT BEFORE THE NOTARY PUBLIC.** - **EXHIBIT P3 COPY OF THE APPLICATION DATED 18.01.2019 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR CHANGING THE BUILDING INTO THE COMMERCIAL PURPOSE.** - **EXHIBIT P4 COPY OF THE APPLICATION DATED 18.01.2019 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR GETTING D&O LICENSE.** - **EXHIBIT P5 COPY OF THE NO OBJECTION CERTIFICATE VIDE NO.KRP2-162/19 DATED 18.01.2019 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P6 COPY OF THE RECEIPT VIDE NO.49747 DATED 18.01.2019 SHOWING THE REMITTANCE OF RS.2382/-.** **EXHIBIT P7 COPY OF THE RECEIPT DATED 21.01.2019 SHOWING THE REMITTANCE OF RS.5250/- BY THE PETITIONER. EXHIBIT P8 COPY OF THE APPLICATION DATED 21.01.2019 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P9 COPY OF THE OBJECTION DATED 19.01.2019 SUBMITTED BY THE 3RD RESPONDENT BEFORE THE 2ND RESPONDENT. EXHIBIT P10 COPY OF THE ORDER OF INJUNCTION DATED 31.01.2019 IN OS.119 OF 2019 PASSED BY THE MUNSIFF COURT, ERNAKULAM.** WP(C).No. 3343 of 2019 9 |**EXHIBIT P11**|**COPY OF THE ORDER DATED 12.04.2018 IN BAIL**| |---|---| ||**APPLICATION NO.2009/2018 DATED 12.04.2018.**| |**EXHIBIT P12**|**TRUE COPY OF THE ORDER VIDE**| ||**NO.ISO/MOH12/COC/66/2019 DATED 8.3.2019**| ||**GRANTING LICENSE DURING THE YEAR 2018-19**| |**EXT.P13**|**TRUE COPY OF THE APPLICATION SENT BY**| ||**REGISTERED POST AS PER COVERING LETTER**| ||**DATED 11.3.2019 BY THE PETITIONER BEOFRE**| ||**THE 2ND RESPONDENT**| |**EXT.P14**|**TRUE COPY OF THE PROCEEDINGS VIDE**| ||**NO.ISO/MOH12/COC/66/2019 DATED 25.3.2019**| ||**REGARDING THE REFUSAL OF RENEWAL**| |**EXT.P15**|**TRUE COPY OF THE APPEAL FILED BY THE**| ||**PETITIONER BEFORE THE COUNCIL DATED**| ||**18.5.2019 U/S. 447(3) OF THE KERALA**| ||**MUNICIPALITY ACT, 1994 ALONG WITH COUNTER**| ||**RECEIPT RECEIVED FROM THE CORPORATION**| ||**OFFICE**| |**EXT.P16**|**TRUE COPY OF THE PETITION FILED BY THE**| ||**PETITIONER BEFORE THE COUNCIL DATED**| ||**22.5.2019 SEEKING PERMISSION TO CONTINUE**| ||**BUSINESS PENDING DISPOSAL OF EXT.P15 ALONG**| ||**WITH COUNTER RECEIPT RECEIVED FROM THE**| ||**CORPORATION OFFICE**| |**EXT.P17**|**TRUE COPY OF THE PROCEEDINGS INITIATED BY**| ||**THE 1ST RESPONDENT DATED 28.4.2019**| |**EXT.P17(A)**|**TRUE COPY OF THE NOTICE DATED 6.5.2019**| ||**ISSUED BY THE HEALTH INSPECTOR AT THE**| ||**INSTANCE OF THE 2ND RESPONDENT**| |**EXT.P18**|**TRUE COPY OF THE MAHAZAR DATED 6.5.2019**| |**EXT.P19**|**TRUE COPY OF THE LIST OF ARTICLES DATED**| ||**30.5.2019 AVAILABLE AT THE STORE AS ON**| ||**6.5.2019 (WHEN THE STORE WAS SEALED)**| |**EXT.P20**|**TRUE COPY OF THE LIST OF ARTICLES THAT WAS**| ||**REMOVED FROM THE STORE ON 6.5.2019**| |**RESPONDENTS' EXHIBITS**|| |**EXT.R2-A**|**TRUE COPY OF ORDER DATED 29.1.2019 BEARING**| ||**NO.KRP2-162/2019 ISSUED BY THE**| ||**SUPERINTENDENT REVENUE SECTION VYTTILA ZONE**| |**EXT.R2-B**|**TRUE COPY OF THE REPORT DATED 6.5.2019**| ||**PREPARED AT 6 PM BY SIJU K., HEALTH**| ||**INSPECTOR GRADE II, CIRCLE NO.12**| |**EXT.R2-C**|**REPRESENTATION DATED 15.5.2109 ADDRESSED TO**| ||**THE SECRETARY BY THE PETITIONER**| |**EXT.R3(A)**|**TRUE COPY OF THE RECEIPT ISSUED BY**| ||**KADAVANTHARA POLICE STATION , DATED**| ||**27.2.2019**| WP(C).No. 3343 of 2019 10 |**EXT.R3(B)**|**TRUE COPY OF THE INTIMATION GIVEN TO THIS**| |---|---| ||**RESPONDENT FROM THE VYTTILA ZONE OFFICE OF**| ||**THE 1ST RESPONDENT DATED 29.1.2019**| |**EXT.R3(C)**|**TRUE COPY OF THE FIR NO.219 OF 2019 OF THE**| ||**KADAVANTHARA POLICE STATION,DATED 13.2.2019**| |**EXT.R3(D)**|**TRUE COPY OF THE NOTICE OF THE REVOCATION**| ||**OF EXT.P1 AGREEMENT ISSUED TO THE**| ||**PETITIONER, DATED 7.2.2019**|