SC Community Status, Physical Disability No Grounds To Remain In Infinite Possession Of Kiosks Allotted By State's Development Authority: Kerala HC

The Kerala High Court recently held that no person could seek to remain in possession of a commercial enterprise under the Greater Cochin Development Authority (GCDA) ad infinitum, irrespective of their credentials. 

Justice Devan Ramachandran held so while hearing a petition filed by a handicapped person belonging to the Scheduled Caste community seeking to retain his possession of the Kiosk allotted to him by the GCDA for a year, despite the expiration of his license to conduct the same. 

"No person can – whatever be his credentials or attributes - seek to remain in possession of a commercial enterprise under the GCDA ad infinitum. The said Authority is expected to conduct its affairs as per law and to abide by tendering processes with respect to the allotment of its stalls and ‘Kiosks’." 

The petitioner has been in possession of a 'Kiosk' owned by GCDA since 2014. Although his license expired in 2015, he continued to operate the kiosk without a renewed license, citing physical disability and a lack of alternative livelihood sources.

He claimed that although he submitted a representation to the GCDA, it was not considered. Accordingly, he approached the Court seeking directions to the GCDA to review his representation and allow him to continue operating the kiosk.

Advocate R. Divakaran submitted on behalf of the petitioner that he was handicapped and belonged to a scheduled caste, entitling him to constitutional protection for his right to operate the kiosk. He thus sought his grievance to be considered by the GCDA and appropriately disposed of, until which time he ought to be permitted to operate the Kiosk. 

However, the counsel for the respondents argued that the petitioner could not indefinitely occupy the kiosk solely based on his physical disability or community status. The counsel submitted that the GCDA intended to auction the Kiosk and that the petitioner could take part in the same, pursuant to which he could be granted the licence, if found eligible for the same. 

The counsel averred that the petitioner’s physical condition, the factum of his belonging to the Scheduled Caste community and that he had been operating the Kiosk for a long period of time shall be kept in mind by the GCDA while finally allotting it.

Upon taking note of these submissions, the Court agreed that no individual, regardless of their qualifications or attributes, could retain possession of a commercial enterprise owned by GCDA indefinitely. It further said that the GCDA must follow legal procedures and adhere to tendering processes for allotting its stalls and kiosks.

It thus granted liberty to the GCDA to conduct necessary tendering processes with respect to the kiosk in question, allowing the petitioner to participate, subject to compliance with all legal requirements.

The Court clarified that until the tendering processes are completed, and a new agreement is finalised, the petitioner is permitted to continue operating the kiosk under the existing terms.

Importantly, the Court directed the GCDA to afford all empathy and necessary preference to the petitioner, as legally available, taking note of his condition and the fact that he had been continuing to operate the Kiosk for the past several years, during the tendering processes.

The petition was ordered accordingly. 

Standing Counsel for GCDA M.K. Thankappan, and Advocates C.A. Majeed and Jayaprakash appeared on behalf of the respondents. 

Case Title: Kashyap Saigal v. State of Kerala & Anr. 

Citation: 2023 LiveLaw (Ker) 493

Case Number: WP(C ) NO. 2028 OF 2015

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