Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH WEDNESDAY, THE 11TH DAY OF JANUARY 2023 / 21ST POUSHA, 1944 WP(C) NO. 160 OF 2023 PETITIONER:
SADHIYA AGED 26 YEARS D/O.SAKEER HUSSAIN,, KARAYIKUDATH HOUSE, U.C.COLLEGE P.O., ALUVA WEST VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT, PIN – 683102 BY ADVS.
P.M.ZIRAJ IRFAN ZIRAJ RESPONDENTS:
1 ALUVA MUNICIPAL CORPORATION MUNICIPAL COMPLEX, ALUVA, ERNAKULAM DISTRICT, REPRESENTED BY ITS SECRETARY, PIN - 683101 2 THE SECRETARY ALUVA MUNICIPAL CORPORATION, MUNICIPAL COMPLEX, ALUVA, ERNAKULAM DISTRICT, PIN – 683101 BY ADVS.
SRI.V.M.KURIAN, SC, ALUVA MUNICIPALITY K T THOMAS MATHEW BOB KURIAN(K/381/1991) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No.160 of 2023 2 JUDGMENT Dated this the 11th day of January, 2023 The petitioner is before this Court aggrieved by Ext.P8 order terminating the contract given to her for collection of parking fee.
2.
The petitioner states that she is an unemployed youth and she was granted right to collect parking fee from the underground of the flyover and Metro Rail commencing from Aluva Metro Station to Pulinchuvadu Junction, Aluva for a period from 01.04.2022 to 31.03.2023. The petitioner remitted ₹1,00,999/- along with GST towards the licence fee to collect parking fee.
3.
The petitioner states that she was issued with a notice alleging that she has violated the auction conditions, by permitting Lorry parking and collecting fee for the same in the restricted area. The petitioner was directed to submit show- cause, if any, in the subject matter.
WP(C) No.160 of 2023 3 4.
The petitioner submits that the allegations are entirely incorrect. The petitioner submitted a reply. The petitioner points out that there was parking of Autorickshaws and Vans authorised by the Municipality. When such authorised parking is functioning there, the petitioner cannot prevent them. In spite of that, the respondents issued Ext.P6 notice dated 27.09.2022. The petitioner submitted reply to Ext.P6 as per Ext.P7. Contract with the petitioner stands terminated as per Ext.P8 order dated 28.12.2022.
5.
The petitioner would submit that Ext.P8 order is a non-speaking order and it has been passed without giving an opportunity of hearing to the petitioner. The respondents ought to have considered that the area, which is allotted to the petitioner, is in front of Aluva Market. It is impossible to prevent the entry of Lorries inside the Market. So, usually Lorries will park in the places which are available nearby. The Trade Unions in the area are helping the Lorry drivers. The petitioner has not collected any amount from such Lorries.
There are authorised street vendors also in the area. The
WP(C) No.160 of 2023 4 respondents ought to have considered the existence of three permitted Auto Stands in the space allotted to the petitioner.
Vast area is being occupied by the Autorickshaws. In the circumstances, termination of the contract is illegal and unsustainable, contended the petitioner.
6.
Standing Counsel entered appearance on behalf of the Municipality. The Standing Counsel submitted that it was found that the petitioner is permitting Lorries and Vans to park in the area. Repeated notices were given to the petitioner.
The petitioner, however, did not take any preventive steps.
The petitioner was required to provide the number of the Lorries being unauthorisedly parked in the area. The petitioner failed to do that also. It was in such circumstances that the contract with the petitioner was terminated on 28.12.2022.
7.
I have heard the learned counsel for the petitioner and the learned Standing Counsel for the respondents.
8.
The specific reason for terminating the contract entered into by the Municipality with the petitioner is that the petitioner has been permitting Lorries and Vans and other big
WP(C) No.160 of 2023 5 vehicles to be parked in the area, where the parking was confined to smaller vehicles. The petitioner has been levying fees from such bigger vehicles like lorries and vans. Apart from that, the petitioner has been permitting unauthorised street vending in the areas for monetary gain.
9.
It is seen from the pleadings in the writ petition that the petitioner was initially issued with Ext.P2 notice as early on 30.04.2022. It was pointed out that the petitioner’s action in permitting Lorries and Mini Lorries to be parked in the area cannot be permitted. That is a violation of contract conditions.
The petitioner submitted Ext.P4 reply. It is to be noted that in Ext.P4 reply, the petitioner has specifically stated that she does not have enough staff to levy fees from those vehicles being parked from 8.00 p.m. to 4.00 a.m.
10.
Thereafter, Annexure R1(a) Notice was issued by the Municipality. The petitioner was cautioned about the unauthorised parking permitted in the area. Again, the petitioner was issued with Ext.P6 notice. The petitioner was required to give explanation as regards the unauthorised
WP(C) No.160 of 2023 6 street vending being carried out in the area. Ext.P7 is the reply given by the petitioner. Ext.P7 is not a satisfactory reply to Ext.P6 notice. It was in such circumstances that the Municipal authorities were forced to terminate the contract with the petitioner as per Ext.P8. I do not find any reason to interfere with Ext.P8 order.
11.
The petitioner would submit that an opportunity of personal hearing was not extended to the petitioner. But, the pleadings would show that repeated notices were given to the petitioner and the petitioner had submitted reply to such notices.
12.
Counsel for the petitioner would submit that in one of the replies, the petitioner had given the numbers of the Lorries, which were unauthorisedly parked in the area.
However, the fact remains that the petitioner was not in a position to prevent unauthorised parking of larger vehicles in the areas allotted to her. Unauthorised street vending also was rampant in the area. It is an admitted position that the petitioner was not in a position to deploy sufficient staff during
WP(C) No.160 of 2023 7 night hours.
For all the above reasons, I do not find any illegality in Ext.P8. Consequently, Ext.P9 Notification cannot be interfered with. The writ petition is accordingly dismissed. This will be without prejudice to the right, if any, of the petitioner to negotiate for refund of any amount, if the petitioner is otherwise eligible.
Sd/- N.NAGARESH JUDGE spk
WP(C) No.160 of 2023 8 APPENDIX OF WP(C) 160/2023 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE AGREEMENT SIGNED BY THE PETITIONER AND HANDOVER TO THE SECOND RESPONDENT WITHOUT DATE Exhibit P2 TRUE COPY OF THE NOTICE DATED 30.04.2022 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER Exhibit P3 TRUE PHOTOGRAPHS OF THE LORRIES AND AUTORIKSHAW PARKING IN THE PARKING AREA ALLOTTED TO THE PETITIONER UNDER THE LEADERSHIP OF CITU AND BMS UNION ALONG WITH PHOTOGRAPHS OF NO PARKING BOARD FIXED BY THE PETITIONER Exhibit P4 TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER DATED 12.05.2022 BEFORE THE FIRST RESPONDENT Exhibit P5 TRUE COPY OF THE RECEIPT ISSUED FROM THE OFFICE OF FIRST RESPONDENT DATED 12.05.2022 REGARDING RECEIPT OF REPLY Exhibit P6 TRUE COPY OF THE NOTICE DATED 27.09.2022 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER Exhibit P7 TRUE COPY OF THE REPLY DATED 11.10.2022 ISSUED BY THE PETITIONER TO THE SECOND RESPONDENT Exhibit P8 TRUE COPY OF THE ORDER DATED 28.12.2022 ISSUED BY THE SECOND RESPONDENT Exhibit P9 TRUE COPY OF THE RE-TENDER NOTICE DATED 29.12.2022 ISSUED BY THE SECOND RESPONDENT RESPONDENT ANNEXURES ANNEXURE-R1(A):
TRUE COPY OF THE NOTICE DATED 23.05.2022 ISSUED BY THE MUNICIPALITY