ABDUL RAHIMAN Vs. MATTANCHERRY MUNICIPAL COMMISSIONER

JUDGEMENT

(1.) The petition is by a tea-shop keeper in Mattancherry and he has filed it under Art. 226 of the Constitution of India. He had obtained from the Mattancherry Municipality a small plot of poramboke land measuring roughly 9 koles by 7 koles on the western side of the Krishna Talkies in Mattancherry. He got it for conducting a temporary tea-shop. The term had expired by the end of Karkadakom 1124. It was stated that after this date the Executive Authority of the Mattancherry Municipality served him with a notice to quit after removing the shed and that his appeal against the notice of the Municipal Council went against him as the said Council on 3.5.1950 passed a Resolution authorising the Commissioner to forcibly demolish the shed and take possession of the premises immediately. The petitioner would say that the plot of ground where the shed has been erected was leased out to him by the Municipality, that the Executive Authority by summary process was incompetent to secure possession of the plot by evicting him, that the action of the Commissioner who was the Executive Authority was ultra vires, that being a lease the Municipal Council was also incompetent to a resolution supporting the Commissioner, that their resolution also was ultra vires, illegal and unenforcible and that therefore this court might be pleased to issue a writ of mandamus and prohibition restraining - the counter petitioner from carrying out the resolution of the Municipal Council until the matter is adjudicated by a Civil Court.

(2.) The Commissioner of the Municipal Council is the counter petitioner. On notice given to him he has entered appearance and filed a counter affidavit. He had also produced along with the affidavit the necessary records in support of his contentions. The plot according to him, was never leased out to the petitioner. The plot referred to in the petition was a portion of a compound about 26 cents in extent. This compound had vested in the Municipality for the purpose of town improvement. The Municipality had never leased a portion of this compound nor had the Municipality any authority to lease it out to the petitioner. On 15.11.1124 the petitioner applied to the Municipality for permission to put up a temporary shed for the purpose of conducting a tea-shop on the site in question. In that petition he had undertaken to demolish and remove at his own cost the shed he wanted to put up after obtaining sanction within 24 hours of a demand made by the Municipality in that behalf. On the basis of this undertaking the council at its meeting held on 22.11.1124 granted the petitioner a license terminable on the last day of Karkadakam 1124 in respect of the site in question for the purpose of putting up a temporary shed for conducting a tea-shop till the end of 1124. On the strength of the license thus granted the petitioner put up a small shed agreeing to pay the license fee Rs. 6 for the site in question. This arrangement was never intended to be a lease. Since the petitioner did not remove the shed after the expiry of the license, a notice was served on him on 1.10.1949 to demolish and remove the shed at once. The petitioner accepted the notice and after that he by a petition moved the Council to extend the period of the license in respect of the site in question till the end of Karkadakom 1125. This prayer was not allowed and so the petitioner was incompetent to remain on the site any further. The action taken by the Commissioner and the Municipality were intra vires and supported by the provisions of the Municipal Act XVIII of 1113 (Cochin). The petition was therefore prayed to be dismissed with costs.