Sunil Catering Services vs. Kerala State Road Transport Corporation - Kerala High Court, 30 March 2021

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUE AY, THE 30TH DAY OF MARCH 2021 / 9TH CHAITHRA, 1943 WP(C).No.12656 OF 2019(F) PETITIONER: SUNIL CATERING SERVICES 317, PARAMEL BUILDING, VELLANIKKARA PO., CHIRAKKAKODE, THRISSUR-680654 REPRESENTED BY IT'S MANAGING PARTNER P.K. SUNIL, AGED 48 YEARS, SON OF SRI.P.A.KESAVAN BY ADVS. SRI.ANIL S.RAJ SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. SMT.ANILA PETER SRI.S.SUDHEESH SRI.SAJEN THAMPAN RESPONDENTS: 1 KERALA STATE ROAD TRANSPORT CORPORATION TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM-695023 2 THE ASSISTANT TRANSPORT OFFICER, CHERTHALA DEPO, CHERTHALA-688524 3 THE CHERTHALA MUNICIPALITY, CHERTHALA 688524, REPRESENTED BY ITS SECRETARY. SRI.P.C.CHACKO, SC, KSRTC R3 BY SRI.JOBY CYRIAC, SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No.12656 OF 2019(F) 2 JUDGMENT A tender notification was issued by the 1st respondent on 13.12.2017, for auctioning out the license to conduct the Milma Stall and Cool Bar at the Cherthala Bus Stand and the petitioner became the successful bidder. His bid having been accepted on 22.12.2017, he was required to deposit 25% of the license fee. The fee was deposited by the petitioner as is evident from Exhibits P1 and P2 receipts. When the petitioner attempted to commence the functioning in the stall which was being operated by the previous licensee, he met with obstruction as a demand was made for payment of Rs 4.5 Lakhs. Left with no alternative, the petitioner issued Exhibit P4 letter and demanded that they be permitted to erect another stall. By Exhibit P5 letter, permission was accorded to the petitioner by the 1st respondent.

It is contended that the petitioner put up a stall and thereafter submitted a request before the 1st respondent to secure an ownership certificate to enable the petitioner to obtain water and electricity connection so as to commence the business. The Assistant Transport Officer submitted Exhibit P6 request for issuance of the ownership certificate at the instance of the petitioner. While the said application was pending, the 2nd respondent issued Exhibit P8 notice calling upon the petitioner to deposit the balance 75% of the license fee together with GST and other charges which amounts to

WP(C).No.12656 OF 2019(F) 3 Rs 7,27,470/-. The petitioner states that as the petitioner was yet to receive an ownership certificate, which was to be obtained by the 2nd respondent, he cannot be called upon to effect the payment towards the stall. This was communicated to the 1st respondent by Exhibit P9 letter. Later, based on Exhibit P10 request made by the petitioner, the 2nd respondent requested the 3rd respondent on 3.9.2018 to grant permit and also to number the stall. Finally, Exhibit P12 occupancy certificate was issued by the Cherthala Municipality on 17/9/2018. 3. According to the petitioner, having obtained Exhibit P12 occupancy certificate only on 17/9/2018, the petitioner could not have commenced the stall any time earlier. The entire delay had occurred due to the lackadaisical attitude of the respondents 1 and 2, as they alone could have expedited the process of obtaining the occupancy certificate to enable the petitioner to commence the functioning of the stall. It is contended that the petitioner having obtained the certificate only on 17/9/2018, he could not have been asked to pay the license fee from 11.4.2018. It is in the afore circumstances that the petitioner is before this Court seeking to quash Exhibit P14 notice calling upon the petitioner to pay license arrears from 11.4.2018 and also Exhibit P16 communication as per which his request for waiving the license fee until the occupancy certificate is obtained was rejected by the respondent No 1. 4. A counter affidavit has been filed by respondents 1 and 2. It is contended that it was in accordance with Exhibit R1 (a) that a license was

WP(C).No.12656 OF 2019(F) 4 granted to the petitioner to run the stall. The license fee was fixed at 68,500/ as is evident from the order accepting the tender. Thereafter, the petitioner issued numerous communications seeking to refix the license fee and the same were all rejected. It is further stated that this Court by an interim order dated 26.04.2019 ordered the stay of all coercive proceedings on condition that the petitioner remits the admitted amounts. However, the petitioner failed to comply with the said direction and no amounts have been paid till date other than the initial 25% which was paid at the time of entering into the agreement.

I have considered the submissions advanced. Records reveal that the petitioner was the successful bidder and his tender was accepted by Exhibit R1(c) order. However, the fact remains that due to disputes with the licensee who was running the stall earlier, the petitioner was not in a position to use the existing stall. The petitioner had to put up a new stall after obtaining permission from respondents 1 and 2. However, what is discernible from the records is that being the owner of the property, only the 2nd respondent could have applied for the occupancy certificate from the local authority. The construction of the stall was completed by the petitioner towards the end of February and it was based on his request that the 2nd respondent, on 1.3.2018, had requested the Local Authority to issue an ownership certificate for obtaining an electricity connection. However, nothing transpired after that. The earlier number allotted to the building was later cancelled by the local authority. I find that it was on 3.9.2018 that the 2nd respondent issued a request to the 3rd respondent to

WP(C).No.12656 OF 2019(F) 5 grant a permit and number to the stall put up by the petitioner. Exhibit P12 would reveal that the ownership certificate dated 17.9.2018 was issued only thereafter. In that view of the matter, there is no justification on the part of respondents 1 and 2 to demand payment of license fee from 1.4.2018 as the petitioner could have legally operated the stall only after 17.9.2018 on which day the ownership certificate was issued by the local authority. I am of the view that the petitioner can be called upon to pay the amount due under the license from 17.9.2018 on which date the ownership certificate was issued.

In the result, Exhibit P14 and P16 will stand quashed. There will be a direction to the respondents to refix the license fee due from the petitioner by fixing the date of commencement as 17.9.2018 on which day, ownership certificate was issued. The refixation shall be done within a period of two weeks from today. The amount refixed as above shall be paid by the petitioner within a period of 30 days from the date on which the refixed license fee, as well as the applicable charges due, are communicated to the petitioner. This petition will stand disposed of. RAJA VIJAYARAGHAVAN V ps JUDGE

WP(C).No.12656 OF 2019(F) 6 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1OF CASH RECEIPT ISSUED BY THE 2ND RESPONDENT DATED 22.12.2017 EXHIBIT P2OF THE CASH RECEIPT ISSUED BY THE 2ND RESPONDENT DATED 04.1.2018 EXHIBIT P3OF THE LETTER OF THE 2ND RESPONDENT DATED 17.1.2018 EXHIBIT P4OF THE LETTER ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 22.1.2018 EXHIBIT P5OF THE LETTER DATED 7.2.2018 EXHIBIT P6OF THE APPLICATION MADE TO THE 3RD RESPONDENT BY THE 2ND RESPONDENT DATED 1.3.2018 EXHIBIT P7OF THE RECEIPT DATED 1.3.2018 EXHIBIT P8OF THE NOTICE DATED 5.7.2018 EXHIBIT P9OF THE LETTER OF THE PETITIONER DATED 16.7.2018 EXHIBIT P10OF THE LETTER SENT BY THE PETITIONER TO THE 1ST RESPONDENT DATED 1.8.2018 EXHIBIT P11OF REQUEST OF THE 2ND RESPONDENT TO THE 3RD RESPONDENT DATED 3.9.2018 EXHIBIT P12O THE OCCUPANCY CERTIFICATE DATED 17.09.2018 EXHIBIT P13OF OWNERSHIP CERTIFICATE DATED 25.10.2018 EXHIBIT P14OF NOTICE ISSUED BY THE 2ND RESPONDENT DATED 26.2.2019 EXHIBIT P15OF REPRESENTATION SUBMITTED BY THE PETITIONER DATED 28.2.2019

WP(C).No.12656 OF 2019(F) 7 EXHIBIT P16OF LETTER DATED 14.3.2019 EXHIBIT P17OF THE ALLOTMENT LETTER FOR THE MUVATTUPUZHA STAND EXHIBIT P18OF RECEIPT FOR THE SECOND INSTALLMENT AS PER EXHIBIT P17 EXHIBIT P19OF RECEIPT FOR THE THODUPUZHA STATION RESPONDENTS EXHIBITS: EXHIBIT R1AOF THE NOTIFICATION DATED 13.12.2017 ISSUED BY THE UNIT OFFICER, KSRTC, CHERTHALA EXHIBIT R1BOF THE TERMS AND CONDITIONS FOR GRANTING LICENCE OF KSRTC STALL DATED 7.12.2017 ISSUED BY THE 1ST RESPONDENT EXHIBIT R1COF THE ORDER DATED 11.1.2018 ISSUED BY THE ESTATE OFFICER EXHIBIT R1DOF THE INTERIM ORDER IN THE ABOVE WRIT PETITION DATED 26.4.2019 EXHIBIT R1EOF THE NOTICE DATED 1.1.2021 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER EXHIBIT R1FOF THE REPLY GIVEN BY THE PETITIONER DATED 18.1.2021 TO THE 2ND RESPONDENT