Writ Appeals Nos. 1050 of 2022 and 1139 of 2022: Roy Mathew v. Kattappana Municipality; Shareef K.K v. Kattappana Municipality

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** # **`THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR`** ## **`&`** ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY ``` ``` WEDNESDAY, THE 17[TH] DAY OF AUGUST 2022 / 26TH SRAVANA, 1944 WA NO. 1050 OF 2022 ``` ``` AGAINST THE JUDGMENT IN WP(C) 13482/2022 OF HIGH COURT OF KERALA ``` ## **`APPELLANT/PETITIONER:`** ``` ROY MATHEW, AGED 48 YEARS, S/O. MATHAI, RESIDING AT NARAMANGALATH, THOPRAMKUDY P.O., THOPRAMKUDY, VATHIKUDY, IDUKKI, KERALA, PIN 685 515. ``` ``` BY ADVS. SRI.M.NARENDRA KUMAR SRI.HARSHADEV M. ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1KATTAPPANA MUNICIPALITY REP.BY ITS SECRETARY, KATTAPPANA.P.O., IDUKKY DISTRICT, PIN- 685 508. 2SHINTOMON, AGED 37 YEARS, S/O. MATHEW, THENMANAL HOUSE, PERUMTHOTTY, VATHIKUDY, IDUKKI -685 515. ``` ``` BY ADV SHRI.UNNIKRISHNAN.V.ALAPATT, SC, KATTAPPANA MUNICIPALITY ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17.08.2022, ALONG WITH WA.1139/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.A.Nos.1050 & 1139 of 2022** **2** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR ``` ## **`&`** ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY ``` ``` WEDNESDAY, THE 17[TH] DAY OF AUGUST 2022 / 26TH SRAVANA, 1944 ``` ``` WA NO. 1139 OF 2022 ``` ``` AGAINST THE JUDGMENT IN WP(C) 7284/2022 OF HIGH COURT OF ``` ## **`KERALA`** ## **`APPELLANT/PETITIONER:`** ``` SHAREEF K.K AGED 42 YEARS,S/O MOHAMMED KOYA, KOZHIYOD HOUSE, KALLURUTTY P O, THOTTAPPURAM, IDUKKI-685 562. ``` ``` BY ADVS. SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN ``` ## **`RESPONDENTS/RESPONDENTS:`** 1 `KATTAPPANA MUNICIPALITY REPRESENTED BY ITS SECRETARY, KATTAPPANA, IDUKKI-685 515.` 2 `SECRETARY, KATTAPPANA MUNICIPALITY, KATTAPPANA, IDUKKI – 685 515.` 3 `SHINTUMON, AGED 37 YEARS, S/O MATHEW, THENMANAL HOUSE, PERUMTHOTTY, VATHIKUDY, IDUKKI-685 515.` **3** ## **W.A.Nos.1050 & 1139 of 2022** 4 `SOBIN KURIAN, AGED 34 YEARS, S/O KURIAN, KALAPPURAKKAL HOUSE, THANKAMANI P O, NEELIVAYAL-685 609.` ``` BY ADV SHRI.UNNIKRISHNAN.V.ALAPATT, SC, KATTAPPANA MUNICIPALITY ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17.08.2022, ALONG WITH WA.1050/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.A.Nos.1050 & 1139 of 2022** **4** ## **JUDGMENT** ## Dated this the 17[th] day of August, 2022 ## **Shaji P.Chaly, J.** Writ appeals are filed by the writ petitioners in W.P. (C)Nos.13482 of 2022 and 7284 of 2022 challenging the common judgment of the learned single Judge dated 19.07.2022, whereby, the learned single Judge dismissed the writ petitions and declined the following reliefs sought for in the writ petitions. ## Prayers sought for in W.P.(C)No.13482 of 2022 - “i) Issue a writ of certiorari or other appropriate writ, order or direction directing the first respondent to refrain from implementing the Decision No.8 taken in the meeting held on 18.02.2022 and quash Exhibit - P2.” ## Prayers sought for in W.P.(C)No.7284 of 2022 - “i. To issue a writ of certiorari or any other appropriate writ, order or direction to quash item No.8 of Exhibit P7 minutes dated 18/02/2022; - ii. To issue a writ of mandamus or any other appropriate writ, order or direction directing the 2[nd] respondent to conduct public auction for letting **W.A.Nos.1050 & 1139 of 2022** **5** out meat stall and slaughter house in Kattappana Municipality for the year 2022-2023.” 2. The contention put forth by the appellants is basically relying upon the decision No.8 of the Municipal Council of the Kattappana Municipality dated 18.02.2022 whereby the Municipal Council has decided to renew the licences of the existing licensees in regard to meat stalls, comfort station, slaughter house, etc. instead of conducting public auction by increasing the rental by 10%. The learned single Judge, after taking into consideration the judgment of this court in **Marykutty George v. State of Kerala** (2005 (2) KLT 515), has held that the Municipal Council is vested with ample powers under law to grant renewal to the existing licensees to carry on business activities in the buildings owned by the Municipality. Paragraphs 20 and 21 of the judgment of the learned single Judge is relevant to the context and they read thus: “20. Ordinarily, when a meat stall, slaughter house or any other licences under a Local Self Government authority is to be given to parties, auction will be the best course. **W.A.Nos.1050 & 1139 of 2022** **6** Auctioning the stalls will be in the public interest also. However, when the stalls are licensed and the Municipal authorities find that the conduct of the business activity by the existing licensees is acceptable to the Municipal authorities and the general public, there is no embargo on the Local Self Government Institutions in extending the period of licence. 21. This Court considered the issue in **Marykutty George v. State of Kerala** [2005 (2) KLT 505] and this Court held that in the case of renewal of lease or licence, the rule does not insist for any public auction or tender to be conducted. That does not mean that there is a vested right in the lessee or licensee conferring any automatic renewal of lease or licence. In the case of new building, while the rule insists for public auction or tender, in the case of existing lease or licence, there is no such insistence and the exclusion of the existing lease or licence is only from the obligation to conduct public auction or tender. In other words, in the case of existing lease or licence, it is only a renewal of the grant and hence it is not compulsory to reauction the same. This Court further held that a public authority like the Panchayat is therefore entitled to decide whether or not on the expiry of the lease, in the absence of any clause contained in the grant, extension should be given and if so, whether it should be subject to any enhancement of rate of rent or licence fee, as the case may be, in the best interest of the Panchayat. ” ## 3. The paramount contention advanced by the **W.A.Nos.1050 & 1139 of 2022** **7** appellants is that in the meeting of the Municipal Council held on 18.02.2022, there is no agenda drawn up for considering as to whether the licences of the existing licensees is to be extended but, on the other hand, the agenda of the meeting was to conduct auction of the buildings of the Municipality and, therefore, the decision taken by the Municipal Council without an agenda item for renewal of the licences of the existing licensees is totally illegal and cannot be sustained under law. That apart, it is submitted that the offer made by third persons for the shops in question were far exceeding 10% and, therefore, the Municipality, consequent to the decision taken to renew the licences, has suffered a loss, which is against public interest. Various other contentions are also raised. 4. The question emerges for consideration is whether the Municipal Council has acted in accordance with law. The issue is guided by section 215 of the Kerala Municipality Act, 1994 dealing with the power of the Municipality to acquire and dispose of property belonging to the Municipality. Sub- **8** ## **W.A.Nos.1050 & 1139 of 2022** section (2)(a) of section 215 makes it clear that the Municipality may construct commercial or other buildings and let them out to the public who need them on licence and may charge such fees as it may fix for the use and occupation of the same in the manner prescribed. Proviso thereto makes it clear that after the period of licence, a licence may be renewed subject to such terms and conditions as may be fixed at that time. Clause (c) of sub-section (2) of section 215 emphasises that in all cases except renewal of licence or rehabilitation of a licensee, licence shall be granted only by public auction or tender. Therefore, it can be seen that the Municipality is vested with ample powers to renew the existing lease. 5. In order to implement the provisions of section 215, the State Government has introduced the Kerala Municipality (Acquisition and Disposal of Property) Rules, 2000. Rule 7(1) of the Rules 2000 makes it clear that the Municipality may, subject to the conditions mentioned in section 215 of the Act, on licence basis for periods as fixed by the Council, give on **9** ## **W.A.Nos.1050 & 1139 of 2022** rent or lease, its own buildings. That apart, rule 11 dealing with transfer to be either in public auction or through tenders states that the transfer of the property of the Municipality, through sale, except renewal of licences, rehabilitation of licensees, granting of lease, letting out on rent, shall be either in public auction or by inviting tenders. 6. Therefore on a reading of the provisions of the Act 1994 and the Rules 2000, it is clear that having vested with sufficient powers to renew the existing licences, merely because the Municipal Council has decided to renew the licences on receiving 10% hike in the licence fees, overlooking the offers made by third persons, cannot be sustained under law. That apart, having gone through the agenda No.8 produced by the appellants what we could gather is that even though in the heading it is shown as meeting convened for deciding on the auction to be conducted of the municipal shop rooms, applications submitted by the existing licensees were also considered along with the same and it was accordingly that the decision was taken by the Municipal **10** ## **W.A.Nos.1050 & 1139 of 2022** Council to renew the existing licences insofar as the shops in question are concerned, by enhancing 10% fees of the existing licence fees. 7. Taking into account the factual and legal circumstances, we have no hesitation to hold that the learned single Judge was right in declining the reliefs sought for by the appellants. We also find that the appellants have not established any case of jurisdictional error or other legal infirmities justifying interference of this court in the appeals, exercising the power conferred under section 5 of the Kerala High Court Act. Upshot of the above discussion is that the appeals fail. Accordingly, they are dismissed. Pending interlocutory applications, if any, shall stand closed. Sd/- **S.Manikumar Chief Justice** Sd/- **Shaji P.Chaly Judge** //true copy// P.A. to Judge **vpv**