Appeal Corp.docx

BEFORE THE HON’BLE CORPORATION COUNCIL,

Appeal No.

/2019

MEMORANDUM OF APPEAL FILED UNDER SECTION 509(1) OF KERALA MUNCIPALITY ACT, 1994 AGAINST THE ORDER No: F-12/15997/19 dated 27.07.2019 of Municipal Corporation, Health Officer

I. II.

III.

The appellant reside at the above address as shown in the cause title. The respondent No.1 is the local authority constituted under the provisions of Kerala Municipality Act, 1994 and situated in the address shown in the cause title. Respondent No.2 is the successor of appellant’s original landlord and residing at the address shown in the cause title. The address for service of summons and all other process of the appellant and respondents are as shown above.

FACTS OF THE CASE IN BRIEF The appellant before this Council is the licensee holder cum owner of ………………………….. a commercial shop carrying business in grocery and other items and situated at building No. 34/538 issued by Corporation of ……………….. Appellant has been carrying business in grocery and other items in the above mentioned building for the last 30 years as per the trade license No: 44/VIII/18 granted by the ……………….. Municipal Corporation and renewed from time to time by the appellant. The building was in possession of the appellant since 01.01.1990 when he obtained the same by way of koolikacheett from ……………………….., the predecessor of respondent No.2. The building is situated in the land comprised in resurvey No.48/2 of ………………………Village, ………………... As on this date the appellant is having the license No.44/VIII/18 which was renewed with effect from 27.02.2019 by way of license fee receipt No.171016 issued by respondent No.1. On 14.03.2019 the appellant herein received a notice from the respondent No.1 office for clearing the deficiencies in the grocery shop of

the appellant within seven days from the receipt of notice. (Copy of the notice is produced herewith as Document No.1). In pursuance to the notice the 18.03.2019 the appellant herein submitted a reply detailing the actual and true facts before the Health Inspector, Circle VIII, ………………..Corporation. (Copy of reply letter is produced herewith as Document No.2).Thereafter the appellant herein received another notice dated 06.04.2019 from the respondent No.1 office directing the appellant to submit explanation if any against initiation of prosecution proceedings under Section 545 of Kerala Municipality Act, 1994. In furtherance to the above notice the appellant on 20.04.2019 submitted a detailed explanation eliciting the whole true, actual and specific facts through his advocate. (Copy of notice and explanation letter are produced herewith as Document No.3 and 4 respectively) Two months later, by way of notice No: F-12/15997/19 dated 01.07.2019 of Municipal Corporation Office the appellant was directed to attend a hearing on 08.07.2019, 3 p.m. at Health Section of ………………………Corporation Office. In the said notice the appellant was also directed to produce the D & O license fee receipt and professional tax receipt. (Copy of notice is produced herewith as Document No.5). Accordingly the appellant attended the hearing in person and produced the documents stipulated as above. Thereafter to the sudden shock of appellant, on 01.08.2019, received the order No.F-12/15997/19 dated 27.07.2019 of ……………………..Municipal Corporation, Health Officer directing the appellant to close down the shop ………………….” occupying the building No.34/238, within 24 hours. (Copy of the impugned order is produced herewith as Document No.6). After going through the impugned order it came to the knowledge of the appellant that the order was prompted by the finding that the building No. 34/538 is not in existence and the trade license was issued in favour of the appellant was on a building which was demolished years ago. Aggrieved by the said order this appellant most humbly prefers this appeal. GROUNDS OF APPEAL 1. The order passed by the ……………………. Municipal Corporation, Health Officer directing the appellant to close down the shop of the appellant within 24 hours on the finding that the building No. 34/538 is not in existence and the trade license was issued in favour of the appellant was on a building which was demolished years back is illegal, bad in law and erroneous. The impugned Order of the …………………….. Municipal Corporation, Health Officer is arbitrary and passed without any reasonableness.

2. As far as the building number is concerned the order was passed ex-parte without serving notice and hearing the appellant. The health officer at any rate and mandatorily ought to have gone for lawful participation of the Appellant. Thus the order passed in the proceeding; conducted in the absence of the appellant is illegal, void ab-initio and bad in law. 3. As far as the other matters contained in the previous notices issued to the appellant, the respondent No.1 has not considered on merits the actual and true facts submitted by the appellant. Apart from that the respondent No.1 has not ensured the lawful participation of the appellant and was in a haste to pass an order against the appellant. 4. The appellant has been carrying business in grocery in the building No.34/538 of .……………. Corporation for the last 30 years. The appellant has in good faith, during the said period of 30 years, regularly paying the professional tax, renewing the trade license etc. with the honest belief that the building No.34/538 issued by the Corporation of …………………….. is correct. 5. Under no circumstances the appellant is not presumed to be having any knowledge about the ambiguity in the number of building in which he carries on business. In fact the mandatory legal formalities prior to the issuance of trade license in favour of the appellant in the building were carried out by the authorities deputed by the respondent. A careful examination of the concerned registers kept in the respondent’s office will reveal the same. 6. Moreover the respondent has accepted the all the revenue and other periodical payments owed by the appellant, in the name of appellant acknowledging the building number as 34/538. Now all of a sudden, with an ulterior motive, solely to harass the appellant herein, the respondent No.1 conducted the one sided enquiry and found that the building number is not correct in the records. 7. Thus at any rate the appellant cannot be held liable for any willful default or negligence, suppression of material facts or nondisclosure of material facts as regards the building number is concerned. In fact the appellant is in good faith and lawfully carrying on the business as per the trade license issued by the respondent for the last 30 years. 8. And also throughout the pendency of proceedings initiated against the appellant herein, by way of prompt and timely written communications, the appellant has communicated his unconditional willingness to perform the conditions prescribed by the authorities to the satisfaction of the authorities, provided a clear and specific written guidance or direction is made in that behalf. 9. Apart from that the respondentNo.1 failed to issue notice to the appellant before passing the impugned order. Thus the appellant has not given any reasonable opportunity to contest and adduce evidence against the finding on ambiguity regarding the number of the building. Therefore, the order passed by the respondent No.1 in

the instant case is arbitrary, unreasonable, without jurisdiction and a nullity. 10.Further a prima facie reading of the impugned order will show that it is not a speaking order. The impugned order is silent and vague as regards the finding, facts and reasons which culminated in the passing of impugned order. 11.Therefore the order No: F/15997/19 dated 27.07.2019 passed by ………………………. municipal corporation health officer is totally mis-conceived, and passed with non-application of law and mind, and liable to be set aside. PRAYER For these and other grounds that would be urged at the time of hearing, this Honourable Council may be pleased to receive this appeal on file and on merits, be pleased to set aside the order passed in the matter.

Dated this the 2nd day of August, 2019.

Advocate Documents enclosed: 1. Notice No.40/VIII/2019 dated 14.03.2019 (copy) 2. Reply dated 16.03.2019 furnished to Notice No.40/VIII/2019(copy) 3. Notice dated 06.04.2019 issued by respondent No.1(copy) 4. Reply dated 20.04.2019 furnished by appellant(copy) 5. No: F-12/15997/19 dated 01.07.2019 of Municipal Corporation Office(copy) 6. No.F-12/15997/19 dated 27.07.2019 of Municipal Corporation, Health Officer(copy) 7. Trade license 44/VIII/18 dated 27/07/2018(copy) 8. Trade license receipt No. 171016 dated 27.02.2019(copy) 9. License fee receipt No.01/11402151402 dated 27.03.2015(copy) 10.Professional tax receipt No.61646 dated 05.01.2008(copy) 11.Professional tax receipt No.127224 for the period ending on 30.09.2019(copy) 12.Professional tax receipt No.10465 for the period ending on 30.09.2017

13.Rent receipt for the period 01.07.1994 to 31.01.1995 (copy) Dated this the 2nd day of August, 2019.

Advocate