Special Appeal No. 874 of 2000 (D)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **TUESDAY, THE 31ST MAY 2011 / 10TH JYAISHTA 1933** ## **SA.No. 874 of 2000(D)** **-------------------AS.11/1997 OF IST ADDL. DISTRICT COURT, THRISSUR OS.425/1993 of MUNSIFF COURT,CHAVAKKAD** **....................** ## **APPELLANTS IN S.A. - APPELLANTS IN THE LOWER APPELLATE COURT –** **----------------------------------------------------------------------------------------------------------SUPPLEMENTAL PLAINTIFFS 2 TO 4 IN SUIT :** **-----------------------------------------------------------------** **1. THRESSIA, W/O. C.V. JOSEPH, (RUNNING FLOUR MILL AT IV/847, KUNNAMKULAM MUNICIPALITY, PATTAMBI ROAD, KUNNAMKULAM VILLAGE, THALAPPILLY TALUK), RESIDING AT THOLOOR VILLAGE, PARAPPUR DESOM.** **2. DAIZ, D/O. JOSEPH, IN DO. DO.** **3. DOLLY, D/O. JOSEPH, IN DO. DO.** **BY ADVS. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.P.B.KRISHNAN** ## **RESPONDENT IN S.A. - RESPONDENT IN THE LOWER APPELLATE COURT –** **------------------------------------------------------------------------------------------------------------DEFENDANT IN SUIT :** **--------------------------------** **KUNNAMKULAM MUNICIPALITY, REPRESENTED BY COMMISSIONER, KUNNAMKULAM MUNICIPALITY, KUNNAMKULAM.** **BY ADVS. SRI.A.K.CHINNAN SRI.K.K. GEETHA** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...2/-** **SA.No. 874 of 2000(D) -2-** **ORDER ON C.M.P. NO. 2142/2001 & C.M.P. NO. 132/2001** **IN SA. NO. 455/2000** ## **DISMISSED** **31/05/2011** **SD/- P. BHAVADASAN, JUDGE** **//TRUE COPY//** **P.S. TO JUDGE** **Mn** ## **P.BHAVADASAN, J.** ------------------------------------SA No.874 of 2000-D ------------------------------------Dated this the 31[st] day of May 2011 ## Judgment Faced with the concurrent findings against him, the plaintiffs in OS No.425/93 before the Munsiff's Court, Chavakkad, have come up in appeal. The original plaintiff died during the pendency of the suit and his legal heirs have been brought on the party array. 2. It is averred in the plaint that the plaintiff has been conducting a flour mill in the plaint schedule building for which he has got licence from the Municipality in the year 1992-93. When he applied for renewal of the licence, it is alleged that the defendant did not receive the requisite fee, pointing out that licence cannot be renewed as the building is in a dilapidated condition. It is further alleged that the landlord was on inimical terms with the plaintiff, so, he wanted somehow to evict him from the building and it was at the instance of the landlord that the defendant SA 874/2000 2 refused to renew the licence. The defendant issued a notice to the plaintiff asking to stop the business run by him. According to the plaintiff, the notice is illegal and cannot be enforced. It is further alleged that no reply was given to the application filed by him for renewal of the licence. On 17.08.1993, an officer of the defendant Municipality came to the premises of the plaintiff and threatened him of coercive steps being taken against him. Therefore, the suit was laid, praying for a permanent prohibitory injunction. 3. The defendant resisted the suit, pointing out that no licence has been granted to the plaintiff for running the flour mill in the premises. The running of the flour mill is illegal for the simple reason that licence was granted for running a grocery shop. The renewal application could not be considered as the building was in a dilapidated condition. The allegations to the contrary are untrue. Pointing out that the plaintiff is not entitled to any relief, they prayed for dismissal of the suit. SA 874/2000 3 4. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 and A2 from the side of the plaintiff. The defendant had DW1 examined and Exts.B1 to B4 marked. 5. The trial court found that no licence has been granted to the plaintiff to run a flour mill and that licence fee was collected from him to run a grocery shop. The trial court also found that there was no attempt from the plaintiff to show that the claim made by the Municipality that the building was in a dilapidated condition was untrue. Accordingly, the suit was dismissed. 6. The aggrieved plaintiffs carried the matter in appeal as AS No.11/97 before the District Court, Thrissur. The lower appellate court, on a re-appreciation of the evidence, found the reasoning of the trial court to be fully justified and accordingly dismissed the appeal. Hence the second appeal. SA 874/2000 4 ## 7. In this second appeal, notice is seen issued on the following questions of law : (A) Is not the decision of the lower appellate court finding that the suit is not maintainable, unsustainable in law in view of Section 392 of the Municipalities Act, 1960 which corresponds to Section 544 of the Kerala Municipalities Act, 1994 ? (B) Would not Section 563 of the Kerala Municipalities Act, 1994 govern the controversy involved in the suit and is not the dispute maintainable under that Act ? Whether under the scheme of the Kerala Municipalities Act, 1960, an aggrieved party should approach the Government in Revision under Section 364(2) of the said Act under all occasions and court a decision – even while the decision of the appellate authority is vitiated due to violation of the principles of natural justice and the decision itself is not communicated – before he is found competent to institute a suit under Section 392 of the said Act ? (D)Has not the lower appellate court erred in thinking that the flour mill is being operated in the plaint SA 874/2000 5 schedule building, a case the respondent Municipality itself does not have ? 8. The learned counsel for the appellants assailed the findings of the courts below on the ground that it violates the principles of natural justice. Reliance was placed on the decision reported in **Ram Swarup v. Shikar Chand** (AIR 1966 SC 893). According to the learned counsel, the plaintiff was not given an opportunity to show that the building was in a good condition and also that he was not served with any reply to the application for renewal filed by him. It is further contended that even assuming that the building is in a dilapidated condition, the procedure contemplated under the Municipalities Act has not been followed by the defendant. Therefore, it is contended that the judgment and decree of the courts below are unsustainable in law. 9. The learned counsel for the respondent, on the other hand, contended that as early as in 1991, notice was issued to all the tenants in the building, intimating SA 874/2000 6 them about the poor condition of the building and asking them to vacate the building. The rejection of the renewal application was duly intimated to the plaintiff and his appeal was also considered. Moreover, licence was granted to him, initially for running a grocery shop and not for running a flour mill. Even assuming that the plaintiff is aggrieved by the orders passed against him, he has got efficacious statutory remedies before appropriate authorities and the suit is not maintainable. 10. On the very face of it, the suit should fail. The defendant has pointed out that initially, the licence was granted for running a grocery shop and licence was never granted for running a flour mill. The reliefs sought for in the plaint read as follows : “A) ആയത�ന�ല ബഹ�മ�നപ�ട ക��ടത�യ�പ� ദയവ�ണ�യ� പ�ത�കയ� പ�ത�യ �പട ആള��ക�� അന��യ�ട�� വഹ�ള�ല അന��യ���ന നടത�യ���നത�# അന��യ���പ$ മ�ണക&ഷ# ��ന�ടര*�വ��&��ള�യ സ�,ള�പമ$, 2 മ�തല 4 ��ട� അന��യ���, ത �ടരന� നടത�വ� �നത�മ�യ ഫ,ളവര മ�ല ബ�സ�നസ, നടത�നത�പനത���യ� യ�പത��� coercive stepsഓനട�ട��കള� എട ����പതന�# അന��യ�ട��യ�ല നടത�നത�യ &��കമ� തടസകമ� പ3യ �ന,ത�യ യ�പത�� � SA 874/2000 7 പ�വ5ത��ള�# പ3യ,ത�ക�����പതന, പ�ത�പയ ഒ�� &�&7ത ഇഞ,:#ഗ,ഷന മ<�# ന�ക��ധ�*�# B)ഈ ����ത�ല സ�,ള�പമ$, അന��യ��ര�, കന��ട�ന സ�� 3��വ��ള�# പ�ത�കയ�ട� ത��വ�ന ��,��*�# C) വ�വഹ��മക?� സ�,ള�പമ$, അന��യ��ര അക�ക���നത�# ക��ടത��, യ�കപമന� കത�ന�നത�മ�യ മറ� ന�വ5ത��പള ��,��* �# ഒ� � വ�ധ�യ �ണ�വണപമന, വണ�മ�യ� അക�ക���ന�.” Going by the prayers quoted above, it is significant to notice that the prayer is to grant an order of injunction in favour of the plaintiff, enabling him to conduct the flour mill whereas the licence earlier granted to him was for running a grocery shop. Apart from the above fact, the grievance of the plaintiff is that there is violation of the principles of natural justice. The said grievance is without any basis. Exts.P2 and P4 will reveal the decision of the Municipality and that he was aware of the rejection of the renewal application for licence. The lower appellate court has observed that if the plaintiff is aggrieved by the orders passed by the Municipality, he has got efficacious statutory remedy of filing appeal against those orders before the competent authority. The findings of the lower appellate SA 874/2000 8 court are perfectly justified and do not call for any interference. The result is that no substantial questions of law arise for consideration in this appeal. The appeal is devoid of any merits and it is accordingly dismissed. However, there will be no order as to costs. **P.Bhavadasan, Judge** sta SA 874/2000 9