Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 19TH DAY OF MARCH 2024 / 29TH PHALGUNA, 1945 WP(C) NO. 3557 OF 2024 PETITIONER:
FAYAZ RAHMAN AGED 44 YEARS S/O BABU, PROPRIETOR, DQF AGENCY, PUTHEN CHACKALAKKAL VEETIL, AMBELIPADAM ROAD, POONITHURA, VYTILLA, ERNAKULAM, PIN - 692019 BY ADVS.
RAMEEZ NOOH RONIT ZACHARIAH FATHIMA K.
BADIR SADIQUE RESPONDENTS:
1 THE CHIEF EXECUTIVE OFFICER KERALA MARITIME BOARD, HO TC XXII/1666 (4 AND 5) 1ST FLOOR, MULAMOOTTIL BUILDING, PIPINMOODU, SHASTHAMANGALAM, PIN - 695010 2 THE PORT OFFICER ALAPPUZHA PORT, KERALA MARITIME BOARD BEACH ROAD, BAZAR PO, ALAPPUZHA, PIN - 688012 BY ADV K.P. SUDHEER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 3557 OF 2024 2 JUDGMENT The petitioner took on lease certain extent of land owned by the Kerala Maritime Board, as is evident from Ext.P1; and points that the term under it, as limpid from Ext.P2, was from 01.12.2023 to 28.01.2024.
2.
The petitioner submits that, however, since he required a few more days time to remove installations after the event was over, he addressed the Maritime Board through a letter dated 15.01.2023, seeking time upto the first week of February, 2024; which, however, has been answered by the former through Ext.P6, saying that they have fixed Rs.50,000/- per day as rent and that he is liable to pay it, along with 18% GST. He says that, therefore, he preferred Ext.P7 representation before the Port Officer of
WP(C) NO. 3557 OF 2024 3 the Maritime Board and seek that the same be directed to be taken up and disposed of, within a time frame to be fixed by this Court.
3.
Sri.K.P.Sudheer – learned Standing Counsel for the Maritime Board, in response to the afore submissions of Sri.Rameez Nooh – learned counsel for the petitioner, submitted that this Writ Petition is not maintainable because, the petitioner was fully aware of the rigor of Ext.P1, which provides unambiguously that if the petitioner is to seek any further extension of time than what has been granted through Ext.P2, they will have to pay compensation at the rates fixed by his client.
He explained that, it is in such manner, that when a request was made before them by the petitioner, that Ext.P6 was issued, fixing the per day compensation to be Rs.50,0000/-. He
WP(C) NO. 3557 OF 2024 4 asserted that this is not usurious because, even going by Ext.P2, the per day rent was in the vicinity of Rs.25,000/- or Rs.30,000/-; and thus prayed that this Writ Petition be dismissed, further asserting that, in any event, it is not maintainable because the disputes are in the contractual realm.
4.
In reply, Sri.Rameez Nooh – learned counsel for the petitioner, submitted that, even when it is assumed that Ext.P1 vests power to the Maritime Board to fix the rent/compensation for his client to continue occupation beyond the term granted by Ext.P2, it could not have been enforced by them in an arbitrary or capricious manner. He submitted that the figure of Rs.50,000/- mentioned in Ext.P6 is double of what was imposed upon them through Ext.P2; and therefore, that it can only be seen to be
WP(C) NO. 3557 OF 2024 5 usurious.
5.
I have considered the afore submissions on the touchstone of the various materials on record.
6.
There can be hardly any doubt that, going by the contractual terms, for every day the petitioner is to overstay, the Maritime Board is authorised to fix “compensation” at any rate that they may deem fit.
7.
However, it must be borne in mind that Ext.P2 had fixed the rate of rent for the property in question and it is asserted by the petitioner that what has been now fixed through Ext.P2 is almost double the same.
8.
Obviously, these are matters into which this Court cannot enter affirmatively because, as rightly argued by Sri.K.P.Sudheer, they are
WP(C) NO. 3557 OF 2024 6 in the contractual realm, which is to a large extent, barricaded from the consideration of this Court, while acting under Article 226 of the Constitution of India.
9.
I am, therefore, of the firm view that the petitioner’s request in Ext.P7 deserves to be considered by the competent Authority of the Kerala Maritime Board.
10. When I say as afore, I am fully cognisant that a counter affidavit has been filed by the Maritime Board, producing therewith as Ext.R2(a), which is stated to be a communication made by the Port Officer to its Chief Executive Officer, deciding that, based on Ext.P7, the compensation can be reduced by 10% per day. However, this is not a decision that was taken after hearing the petitioner and there is nothing on record to show that it has been
WP(C) NO. 3557 OF 2024 7 communicated to them.
11. I am, therefore of the firm view that the matter will require to be decided in terms of my observations above.
Resultantly, I allow this Writ Petition and direct the 1st respondent - Chief Executive Officer, to hear the petitioner and take a final decision on Ext.P7, adverting to their contention that the rent originally fixed, through Ext.P2, is less than half of what has been fixed through Ext.P6. A final communication in this regard shall be issued to the petitioner as expeditiously as is possible, but not later than one month from the date of receipt of a copy of this judgment.
I, however, clarify that I have not entered into the merits of any other rival contentions and that my observations herein are only
WP(C) NO. 3557 OF 2024 8 intended to guide me in this judgment and nothing more; thus leaving them all open to be decided by the 1st respondent appositely, while the afore exercise is completed.
Sd/- DEVAN RAMACHANDRAN JUDGE SAS
WP(C) NO. 3557 OF 2024 9 APPENDIX OF WP(C) 3557/2024 PETITIONER’S EXHIBITS:
Exhibit P1 TRUE COPY OF THE SANCTION LETTER NO. A6- 5533/2023 DTD. 16.11.2023 ISSUED BY THE KERALA MARITIME BOARD Exhibit P2 TRUE COPY OF THE PORT LAND RENT AGREEMENT DT.
01.12.2023 ENTERED INTO BETWEEN THE PETITIONER AND THE 1ST RESPONDENT Exhibit P3 TRUE COPY OF THE PPR LICENSE NO. H2/28583/23 DTD. 21.12.2023 ISSUED BY THE HEALTH OFFICER, ALAPPUZHA MUNICIPALITY Exhibit P4 TRUE COPY OF THE PAYMENT RECEIPT OF RS.
17,40,500/- DTD 30.11.2023 Exhibit P5 TRUE COPY OF THE LETTER DTD. NIL ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT Exhibit P6 TRUE COPY OF THE LETTER NO. A6-5533/23 DTD.
24.01.2024 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER Exhibit P7 TRUE COPY OF THE LETTER DTD. 25.01.2024 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT Exhibit P8 True copy of the communication dated 09.02.2024 sent by the petitioner to the 2nd respondent, acknowledged by the 2nd respondent Exhibit P9 True copy of the photographs of the port land area being inspected by officials of Municipality and KMB on 09.02.2024 RESPONDENTS’ EXHIBITS:
EXHIBIT R2 ( a ) A true copy of communication No. A6. 5533/23 dated 7.2.2024 issued by the 2nd respondent to the 1st respondent