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CASE NO.: Appeal (civil)  4982 of 2000

PETITIONER: Corporation of Kochi

RESPONDENT: Elamkulam Village Co-operative Society Ltd. and Anr.

DATE OF JUDGMENT: 29/08/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

With  CIVIL APPEAL No. 4983 of 2000 and  CIVIL APPEAL No. 3212 of  2006  

ARIJIT PASAYAT, J.

       These appeals relate to a common order passed by a  Division Bench of the Kerala High Court.  While CA Nos. 4982  of 2000 and 4983 of 2000 have been filed by the Corporation  of Kochi (hereinafter referred to as the ’Corporation’), the other  appeal has been filed by Greater Cochin Development  Authority (in short the ’Development Authority’). By the  impugned judgment the High Court held that the decision of  the Corporation rejecting the application for removal of licence  made by the respondent No.1 (hereinafter referred to as the  ’Society’) is not sustainable and the learned Single Judge who  disposed of the writ petition should not have directed an  appeal to be filed by the Society.          Background facts in a nutshell are as follows:-

       The Society represented by its Secretary is registered  under the Kerala Co-operative Societies Act.

       One of the objects of the Society is the conduct of a  private market at Kadavantha. According to the society it owns  29 cents of land in Elamkulam Village facing ’Sahodaran  Ayyappan’ road in Ernakulam. The society had constructed 42  shop rooms in the property and leased it out to its members  and non-members, who had been conducting business of  dealing with provisions, vegetables, meat, fish etc.  The Society  had been collecting licence fees from the occupants of the  shop rooms.     The private market was being conducted by the Society  after obtaining licence from Corporation, under the Erstwhile  Kerala Municipal Corporations Act, 1961 (in short the  ’Corporation Act’). The licence was being renewed every year  and the licence fee was also being paid. The market conducted  by the Society is a private market under Section 2(31) of the  Kerala Municipality Act, 1994 (in short the ’Act’). Out of the  property belonging to the Society, an extent of 2.650 cents of

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land was surrendered to the Corporation for the purpose of  widening the ’Sahodaran Ayyappan’ road, free of cost after  demolishing the adjacent shop rooms. According to the Society  by over sight, it failed to apply for the renewal of the licence for  the period 1997-98. By letter dated 23.8.1997 the Corporation  directed the Society to stop the functioning of the market for  non-payment of licence fee. On receipt of this the Society filed  a representation to condone the delay in remitting the licence  fee and permitting it to pay the licence fee for the period 1997- 98. But the Corporation issued notice calling upon the Society  to show cause as to why the business shall not be closed,  since the private market is unauthorised. This was challenged  by some of the occupants of the shop rooms, which resulted in  the filing of O.P.No.1663/98 and W.A.No.601/98.  Subsequently, the Joint Registrar of Cooperative Societies  passed an order dated 26.6.1998 directing the Society to take  urgent steps to continue the market owned by the Society.  Thereafter, the Society passed a resolution dated 1.8.1998 to  open the market and to pay the requisite licence fee for the  private market for the periods 1997-98 and 1998-99. The  Society with a covering letter dated 4.8.1998, forwarded a  cheuqe for Rs.5,100/- being the licence fee for the said periods  and submitted applications in the prescribed form for licence.   

The Corporation by order dated 6.8.1998 rejected the  application, returned the cheque. The said order was  challenged in OP. No.15638/98 by some of the members of the  Society. The Society filed O.P.No.17365/98 challenging  rejection of the application. The above Original Petitions were  dismissed by judgment dated 13.10.1998. Thereafter, the  Society filed W.A. No.225/98 and W.A. No.226/98 against the  judgments in O.P. No.17635/98 and O.P. No.15638/98 Both  the Writ Appeals were heard together and disposed of by  judgment dated 1712.1998. By said judgment, High Court  directed the Corporation to pass fresh order in accordance  with the directions contained in the judgment. The  Corporation again considered the application and rejected the  same by order dated 20.1.1999. Challenging the same O.P.  No.3433/99 was filed.

The main ground taken against the order was that it is  that is not in accordance with the directions contained in  earlier judgment. The Society contended that the holding of a  private market is a right which it can exercise and the  Corporation can only impose restrictions or regulations  regarding the conduct of the same. It was further contended  that the matters which were not relevant have been taken into  consideration by the Corporation in rejecting the application  filed by it. As a matter of fact, there was default in the  payment of licence fee only for one year and as soon as the  Society came to know of the non-renewal of the licence,  application was filed immediately. But that application was  not considered by the Corporation. There was no rule that an  application for renewal cannot be submitted after the  prescribed time. The only inhibition is that a market cannot be  conducted without licence. The Corporation itself has allowed  three persons to conduct stalls in the market. The ground of  unhygienic conditions mentioned in order is not correct. The  market has been existing for the last so many years. As  directed in earlier judgment, this could have been rectified by  making suitable directions to the licensee to remove the  unhygienic conditions. Similarly, it was contended that the  ground of traffic congestion s invented only for the purpose of  denying licence to the Society. As a matter of fact, the Society  itself has surrendered free of cost an extent of nearly 2= cents

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of land for widening the ’Sahodaran Ayyappan’ road. Further,  the Society is prepared to abide by any conditions imposed for  the regulation of traffic and easing of traffic congestion  because of the existence of the market. The existence of the  market very close in the Kadavanthra junction is not a ground  to refuse the licence.  

On behalf of the Corporation, a counter-affidavit was  filed. According to it, an alternate remedy is available to the  Society under Section 509(l)(b) of the Act. It was further stated  that only a few of the stall holders have taken the licence from  the Corporation. The market is not being kept in a good  hygienic condition. There was no provision for waste disposal  and the market was being run in a most unhygienic condition.  The Corporation relied on the counter filed in O.P. No.1663/98  to show that the market is very congested and unhygienic. It  was further stated that the market is abutting the ’Sahodaran  Ayyappan’ road, a very busy road. The market does not have  any parking space. Society did not apply for the renewal of the  licence from 1995-96 onwards. There was no application for  renewal. As a matter of fact, an earlier application was not  pursued. Reference was made to the Original Petition filed by  certain stall holders.  

       Learned Single Judge who heard the writ petition did not  go into the merits of rival contentions and held that the issues  concerned can be gone into more effectively if an appeal is filed  under Section 509(1) of the Act.  It was noted that disputed  questions of facts were involved. Therefore, it will not be  proper to decide the issue in the writ petition.  It was further  indicated that the question as to whether the Secretary of the  Corporation had acted in accordance with directions issued by  the High Court in the earlier judgment can be considered by  the Appellate Authority.  The relevant portion of the order  reads as follows:

       "I do not propose to go into the merits of  the rival contentions in this proceedings as  according to me, all these matters can be  considered in an appeal filed under Section  509(1)(b) of the Act.  I also find that certain  disputed questions of fact are also involved in  the matter.  I am sure that if the petitioner  files an appeal against the impugned order, the  appellate authority will consider the matter  with all seriousness. The question as to  whether the Secretary while passing Ext. P10  order has flouted the directions issued in Ext.  P9 judgment will also be considered by the  appellate authority in the appeal."

       An appeal was filed by respondent no.1-society before the  High Court.  Primary stand taken was that respondent no.1- corporation had not kept in view the earlier judgment passed  in the Writ Appeal Nos.2225/98 and 2226/98 dated  17.12.1998 and, therefore, the learned Single Judge should  not have directed the writ-petitioner to file an appeal and  should have decided the matter.  The present appellant took  the stand that since alternative remedy is available the writ- petitioners should have availed that remedy and should not  have filed a writ petition particularly when the disputed  questions of facts are involved.  The High Court accepted the  position that where there is alternative remedy the High Court  should not normally exercise its jurisdiction.  However, it felt

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that because the order which was impugned in the writ  petition was running counter to the directions contained in the  earlier judgment, a writ petition was to be entertained.  High  Court was of the further view that merely because there was  delay in seeking renewal of the licence, that cannot be a  ground to refuse the licence. It was of the view that there was  no specific period provided for making an application though  Section 460(1) of the Act states that no person shall open a  new private market or continue to keep open a private market  except on a licence from the Municipality. Application for a  licence or renewal application has to be made in terms of sub- section (2) of Section 460 not less than six weeks before the  expiry of the period for which the licence has been granted and  in the case of a new market, six weeks before the date on  which the market is proposed to be opened.  The High Court  felt even though Section 460 required renewal within six  weeks before the expiry of the licence, the Municipality has the  power to renew the licence even if there is a belated  application. For coming to the conclusion the High Court felt  that it is one thing to say that the market cannot be run at  any time without appropriate licence or on the licence being  cancelled.  It was accepted that a licensee has to apply for  renewal within stipulated time and the Municipality has power  to close down the market.  It was, however, held that when an  order has been passed to close down, it is not that licencee  cannot apply for renewal.  It was further, held that though the  new market was opened by the Development Authority, and  some of the shopkeepers had already occupied some shops  cannot be a ground to refuse the renewal.  It was noticed that  municipality had allowed three persons to function in the  market. It was held that the directions in the earlier judgment  were not considered. Therefore, it was held that the matter  was to be re-considered.   

       In support of the appeals, learned counsel for the  appellants submitted that admittedly the licence was not  renewed and, therefore, the market was being operated  without proper licence.  That is why direction was given to  stop activities.  It is to be noted that respondent no.1-society  did not want to renew its licence. It has categorically stated by  way of an affidavit that there was intention to continue  activities. The shopkeepers had filed a writ petition for  direction to the Society to ask for renewal of the licence.  The  writ petition was dismissed. Similar was the fate of writ  appeal.  Thereafter the Society had filed writ petition. On the  first round, the only ground taken was that order was passed  without notice.  Therefore, direction was given to give an  opportunity and, thereafter decide the matter.  That was done.   The applications for renewal relating to two periods i.e. years  1997-98 and 1988-89 were considered and fresh order was  passed.  It is not the case of the respondent no.1-Society that  it intended to continue business and there was some  unintentional delay. As a matter of fact, when the shopkeepers  had filed the writ petition, at that time the respondent no.1- Society did not take stand that it wanted renewal of the  licence.  In fact, the application was filed after the dismissal of  the writ appeal.   

Learned counsel for respondent no.1 submitted that the  High Court has rightly taken note of the fact that there was no  bar on making a belated application for renewal.

Section 460 deals with "License for private markets".  The  same reads as follows:

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"460. Licence for private markets.\027 (1) No  person shall open a new private market or  continue to keep open a private market except  on a licence from the Municipality. (2) Application for a licence under sub-section  (1) shall he made by the owner of the place in  respect of which the licence is sought to be  renewed, not less than six weeks before the  expiry of the period for which the licence has  been granted and in the case of a new market,  six weeks before the date on which the market  is proposed to he opened. (3) The Municipality shall, as regards private  markets already established and may, at its  direction as regards new private markets grant  the licence applied for subject to such  regulations as to supervision and inspection  and to such conditions as to sanitation,  drainage, water supply, width of paths and  ways, weights and measures to be used, and  rents and fees to be charged in such market as  it may think proper or it may, for reasons to be  recorded in writing, refuse to grant any such  licence for any new private market. The  Municipality may, however at any time, modify  the conditions of a licence to take effect from  any specified date or suspend or cancel any  licence for breach of any conditions thereof. (4) Where a licence is granted, refused,  modified, suspended or cancelled under this  section, the Municipality shall cause a notice  of such grant, refusal, modification,  suspension or cancellation in English and the  language of the locality to be pasted in some  conspicuous place at or near the entrance to  the place in respect of which the licence was  sought or had been obtained. (5) Every licence granted under this section  shall expire at the end of the year in which it is  granted, [Explanation.\027 For the purpose of his section  private market includes also a shopping  complex having more than six shop rooms.]

Section 462 in definite terms provides that no person  shall sell or expose for sale any animal or article in any  unlicensed private market.    The High Court itself has noted that the application for  renewal has to be filed within the stipulated period. It,  however, was of the view that there is no bar in making an  application beyond that time.  The view that application can be  made at any time is not correct, because application for  renewal was filed after the expiry of the period. The respondent  no.1-Society itself had indicated that it had no intention to  carry out the activities. Further, we find that every  observation/direction given by the High Court in the earlier  judgment had been duly and elaborately discussed and  thereafter the order rejecting applications filed was passed.  The High Court came to an abrupt conclusion that the  directions given in the earlier writ appeal were not taken note  of.  Unfortunately, the High Court has not indicated as to  which of the directions was not taken note of.  As a matter of  fact, a bare reading of the order which was passed on

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20.1.1999 shows that all relevant aspects were elaborately  dealt with.  Each of the points was considered and conclusions  were arrived at. It was specifically noted that the licence  issued earlier expired on 31.3.1996 and, therefore, the market  was functioning unauthorisedly w.e.f. 1.4.1996.  There was no  application for renewal made at any time even not belated for  the year 1996-97.  Obviously, the application could not have  been made for renewal of the licence after the expiry of the  period which is the case for the period 1997-98.  For the year  1998-99 the application was made on 4.8.98 i.e. after the  expiry of the period provided. The question of renewal of  licence retrospectively after the expiry of the period during  which the society had unauthorisedly carried on activities is  not contemplated in law. Therefore, the impugned judgment of  the Division Bench of the High Court is clearly indefensible,  and is set aside. The appeals are allowed but in the  circumstances without any order as to costs.