IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 4517 of 2007(K)
1. O.A.FRANCIS, OLAKKENKIL HOUSE,
... Petitioner
Vs
1. CORPORATION OF THRISSUR,
... Respondent
2. JALAJA, W/O PADMAJAN,
For Petitioner :SRI.C.ANIL KUMAR
For Respondent :SRI.K.P.VIJAYAN
The Hon'ble MR. Justice K.M.JOSEPH
Dated :27/06/2007
O R D E R
K.M.JOSEPH, J.
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W.P.(C).NOs.4517, 16763,
16928 & 19058 OF 2007
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Dated this the 27th day of June, 2007
JUDGMENT
Writ petitions being connected are disposed of through this
common judgment.
Petitioner in W.P.(C)NOs.4517/07 & 16928/07 is one and
the same ( hereinafter referred to as O.A.Francis). Petitioner in
W.P.(C)No.19058/07 is the first petitioner in W.P.(C)
No.16763/07. She is one Jalaja.
Mr.Francis filed W.P.(C)Nos. 4517/07 & 16928/07 on the
following brief allegations:
O.A. Francis was conducting a hotel in a building at
Kizhakkekotta since 1972. The building was acquired by the first
respondent in the year 1976. It was assured that the tenants of
the said building will be accommodated in the newly constructed
building. Ext.P3 was passed allotting a room to the petitioner.
The allegation in W.P.(C)No.4517/07 is that steps are under way
to allot the room to the second respondent namely Smt. Jalaja
WPC NOs.4517, 16763,16928 & 19058 of 2007
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overlooking the petitioner’s rights. The prayer in the
W.P.(C)No.4517/07 is to direct the first respondent to allot room
to the petitioner in terms of Ext.P3 and to declare that he is
eligible for allotment to a room in the newly constructed building
in terms of Exts.P1 and P3.
2. In W.P.(C)No.16928/07, Shri.Francis seeks to quash
Ext.P9 to the extent it pertains to him and to declare that he is
eligible for allotment to a room in the newly constructed building
in terms of Ext.P1 and P3. Ext.P1 is the resolution of Muncipal
Council dated 12-1-1973 assuring allotment of room to him.
Ext.P2 is the order of the first respondent allotting a temporary
shed to the petitioner. Ext.P3 is the resolution passed by the first
respondent allotting Room No.4 to the petitioner. It is the
common case that when the matter was challenged by Smt.Jalaja
and it was remitted back. Upon it being remitted back, it is
decided in favour of Smt.Jalaja vide Ext.P9 in W.P.(C)
No.16928/07. According to Shri.Francis he was conducting
business by himself and that in term of Ext.P1 resolution he was
the beneficiary in Ext.P2 and he was allotted a temporary shed.
WPC NOs.4517, 16763,16928 & 19058 of 2007
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It is submitted by the counsel for the petitioner that Jalaja was
not conducting business herself. Her predecessor was doing the
business and he was the actual tenant. Smt. Preeta would
contend that the decision to allot room to Jalaja instead of
O.A.Francis is unsustainable.
3. On the other hand, counsel for the Corporation
submits that the understanding was to allot room to those
tenants who co-operate. Sri.O.A.Francis, without there being an
actual hike in the licence fee, approached the civil court and
instituted O.S.No.131/98 and obtained an injunction order and
the suit was ultimately terminated in the year 200, it is stated. It
is also submitted that even for the period Francis was in
occupation he has not paid any licence fee so far. There is only
one room for allotment between Shri.Francis and Smt.Jalaja.
4. I am not much impressed by the contentions of
Smt.Preeta that the petitioner being an actual tenant who was
conducting business should be preferred to Smt.Jalaja who claims
under her predecessor who was the actual tenant. That apart the
conduct of Shri.Francis in approaching the civil court and getting
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an order of injunction is not a matter which I cannot over look
particularly under Article 226. Smt.Preeta submits that
Smt.Jalaja comes under the award of 1976 whereas Shri.Francis
comes under the award of 1980 and in terms of time also, it is
the claim of Smt.Jalaja which should be preferred. I feel that the
allotment in favour of Smt.Jalaja is not liable to be interfered
with.
5. It is submitted by the learned counsel for the
petitioner that in Ext.P9 it is stated that the claim of
Shri.Francis will be considered if he withdraws the case and also
remits the entire licence fee. Learned counsel for the petitioner
submits that petitioner had a bitter experience in the past when
on a similar situation such assurance was observed in breach.
Counsel for the Corporation submits that it is not exactly an
assurance as such. He submits that if the petitioner remits the
entire amount as licence fee, his claim will be considered when
new building is put up. I record this submission.
6. As far as W.P.(C)No,19058/07 is concerned, it is filed
by Smt.Jalaja . She challenges Ext.P1. Smt.Jalaja seeks a
WPC NOs.4517, 16763,16928 & 19058 of 2007
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direction to set aside that part of the decision to divide room
No.3 in Ext.P1 since it contravenes Ext.P1 (counsel submits that
it is Ext.P2). Learned counsel for the petitioner relies on Ext.P2
sketch and points out that by the decision to bifurcate in Ext.P1,
the running of the restaurant which the petitioner proposes to
run will not be feasible, it is submitted.
7. Learned counsel for the Corporation would submit that
Ext.P1 came to be passed pursuant to the earlier direction of this
court and that perusal of Ext.P1 would show that in the course of
hearing it is agreed by the petitioner that petitioner will be
allotted room with bifurcation. Learned counsel for the petitioner
submits that the bifurcation presently done does not adversely
affect the petitioner. Petitioner has also preferred Ext.P4 seeking
some benefit. W.P.(C)No.19058/07 is disposed of directing the
first respondent to consider and take a decision on Ext.P4 in
accordance with law within a period of two months from the date
of receipt of a copy of this judgment.
8. W.P.(C)No.16763/07 is filed by Smt.Jalaja and another
licensee feeling aggrieved by the decision to impose licence fee at
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the rate of Rs.25/- per sq.ft. Petitioners have preferred Exts.P5
and P6.
9. I heard learned standing counsel for the Corporation
also.
Learned counsel submits that pending decision, petitioners
will make payment under protest. W.P.(C)No.16763/07 is
disposed of directing the first respondent to consider and take a
decision on Exts.P5 and P6 in accordance with law within a period
of two months from the date of receipt of a copy of this
judgment.
(K.M.JOSEPH, JUDGE)
sv.
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