CORPORATION OF KOCHIversusELAMKULAM VILLAGE CO-OPERATIVE SOCIETY LTD. AND ANR.

                 CORPORATION OF KOCHI                                            A
                           v.
   ELAMKULAM VILLAGE CO-OPERATIVE SOCIETY LTD: AND ANR.

                             AUGUST 29, 2006

        [ARIJITPASAYAT AND LOKESHWARSINGH PANTA,JJ.]                             B


      Kera/a Municipality Act, 1994:

      ss. 2(31) and 460-Licence for private markets-Renewal of-
Applications for renewal not filed for two years and filed in third year         C
belatedly-Held, application could not have been made for renewal after the
expiry of the period provided-Renewal of licence retrospectively after expil)1
of the period during which Society had unauthorisedly carried on activities
is not contemplated in law-Applications rightly rejected by authorities.

       Respondent no. I-Society was conducting a private market as defined
                                                                                 D
 under s.2(Jl) of the Kera la Municipality Act, 1994. It had constructed certain
 shops and leased out the same to its members. The private market was being
 conducted by the Society after obtaining licence from the Corporation under
 the erstwhib f(erala Municipal Corporation Act, 1961. The licence was being
 renewed every year on payment of prescribed licence fee. The Society failed E
 to apply for renewal of the licence for the year 1997-98. The Society alongwith
 a letter dated 4.8.1998 submitted applications in the prescribed form for
 licence, but the appellant-Corporation rejected the same. Writ petitions were
 filed before the High Court and on its directions the Corporation again
 considered the application and rejected the same by order dated 20.L1999. F
The said order was challenged before the High Court. The Corporation filed
counter affidavit contending that an alternative remedy was available to the
Society under s.509(l)(b) of the Act; that the market was very congested and
unhygienic, abutting a very busy road; and that the Society did not apply for
renewal of the licence from 1995-96 onwards. The single Judge dismissed
the writ petition holding that the issues concerned could be gone into more G
effectively in an appeal under s.509(1) of the Act and as disputed questions of
facts were involved, it would not be proper to decide the issue in the writ
petition. But the Division Bench allowed Society's appeal holding that s.ince .
the order impugned in the writ petition was running counter to the directions

                                    611
    612                    SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A contained in the earlier judgment, the writ petition was maintainable; and that
    merely because there was delay in seeking renewal of the licence that cannot
    be a ground to refuse the licence, particularly, when there was no specific
    period_ provided for making an application. Aggrieved, the Corporation filed
    the present appeals.

B         Allowing the appeals, the Court

          HELD: I.I. The High Court itself has noted that the application for
    renewal has to be filed within the stipulated period. The view that application
    can be made at any time is not correct, because application for renewal was
C   filed after the expiry of the period. Respondent no. I-Society itself had
    indicated that it had no intention to carry out the activities. Further, every
    observation/direction given by the High Court in the earlier judgment had
    been duly and elaborately discussed and thereafter the order rejecting the
    applications was passed. There was no application for renewal made at any
    time, even not belated, for the year 1996-97. Obviously, the application could
D   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 4.8.1998 i.e. after the expiry of the period provided.
                                                                 (618-D-G; 619-A(

           1.2. The question of renewal of lice~ce retrospectively after the expiry
E   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. (619-A-B]

          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4982 of2000.

F         From Judgment and Order dated 10.9.1999 of the High Court of Kerala
    at Ernakulam in W.A. No. 1223/1999.

                                        WITH

          C.A. No. 48983 of 2000 and C.A. No. 3212 of 2006.
G
          V.B. Saharya (for Mis. Saharya & Co.) and E.M.S. Anam, for the Appellant.

         R. Gopalakrishnan, Jai Kishor Singh, Subramonium Prasad and Malini
    Poduval (N.P.), for the Respondents.

H         The Judgment of the Court was delivered by
 CORPN.OFKOCHlv. ELAMKULAMVILLAGECO-OPERATIVESOCIETYLTD.[PASYAYAT,J.] 6 J3

      ARIJIT PASAYAT, J. These appeals relate to a common order passed A
by a Division Bench of the Kerala High Court. While CA Nos. 4982 of2000
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     B
rejecting the application for renewal of licence made by the respondent No.I
(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:-
                                                                                   c
     The Society represented b~ 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         D
Village facing 'Sahodaran Ayyappan' road in Emakulam. 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.
                                                                                   E
       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,      F
an extent of 2.650 cents of 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         G
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.
                                                                                   H
     614                     SUPREME COURT REPORTS [2006) SUPP. 5 S.C.R.

A This was challenged by some of the occupants of the shop rooms, which
    resulted in the filing ofO.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
B   periods 1997-98 and 1998-99. The Society with a covering letter dated 4.8.1998,
    forwarded a cheque for Rs.5, I00/- 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
C 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. I0.1998. 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
D dated 17.12.1998. 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 not in accordance
E with the directions contained in ~arlier 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
F 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
G 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
H the ground of traffic congestion is invented only for the purpose of denying
 CORPN OF KOCH! r. ELAMKULAM VlLLAGECO-OPERATIVESOCIETYLTD. (PASYAYAT, J.] 6 J 5


licence to the Society. As a matter of fact, the Society itself has surrendered     A
free of cost an extent of nearly 2\lz cents 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.
                                                                                    B
       On behalf of the Corporation, a counter-affidavit was filed. According
to it, an alternate remedy is available to the Society under Section 509(1)(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        C
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 t!ie 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      D
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          E
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           F
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( I)(b) of the A ct. I
        also find that certain disputed questions of fact are also involved in      G
        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. Pl 0 order has flouted the directions issued in Ext. P9 judgment
        will also be considered by the appellate authority in the appeal."          H
    616                    SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A         An appeal was filed by respondent no. I-society before the High Court.
   Primary stand taken was that respondent no. I-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
B 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 that because the order which was impugned in the writ petition was
c 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( I) of the Act
D 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
E 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
F 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
G 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
H
     CORPN. OFKOCHlr. ELAMKULAMVILLAGECO-OPERATIVESOCIETYLTD.[PASYAYAT,J] 617


     being operated without proper licence. That is why direction was given to A
     stop activities. It is to be noted that respondent no. I-society did not want
    to renew its licence. It has categorically stated by way of an affidavit that
    there was no 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 B
    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 1998-
    99 were considered and fresh order was passed. It is not the case of the
    respondent no. I-Society that it intended to continue business and there was C
    some unintentional delay. As a matter of fact, when the shopkeepers had filed
    the writ petition, at that time the respondent no. I-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.
                                                                                    D
           Learned counsel for respondent no. I 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:                                                                     E
           "460. Licence for private markets.- (I) 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 (I) shall he made _by    F
           the owner of the place in respect of which the licence is sought to
           be renewed, not Jess 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.
                                                                                    G
           (3) The Municipality shall, as regards private markets already


I          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
                                                                                    H
     618                    SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A           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
B
            granted, refused, modified, suspended or cancelled under this section,
            the Municipality shall cause a notice of such grant, refusal,
            modificatiqn, 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
C           had been obtained.

            (5) Every licence granted under this section shall expire at the end of
            the year in which it is granted,

            [Explanation.- For the purpose of his section private market includes
D           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
E 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. I-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
F 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
G was passed on 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
H
        CORPN. OF KOCH! v. ELAMKULAMVILLAGECO-OPERATI VE SOCIETY.LTD [PASYAYAT, J] 6J9


        renewal of the licence after the expiry of the period which is the case for the A
        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 B
        indefensible, and is set aside. The appeals are allowed but in the circumstances
        without any order as to costs.

        RP.                                                        Appeals allowed.




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