Anoop Varghese v. Meloor Grama Panchayat & Shaju Augustine Akkara

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN TUESDAY, THE 10TH DAY OF DECEMBER 2013/19TH AGRAHAYANA, 1935 WP(C).No. 30077 of 2013 (H) ---------------------------- PETITIONER: ----------- ANOOP VARGHESE, AGED 32 YEARS S/O.C.L.VARGHESE, RESIDING AT CHOWARAKARAN HOUSE NEAR K S R T C BUS STAND KIZHAKKE CHALAKKUDY VILLAGE, MUKUNDAPURAM TALUK THRISSUR-680307. BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN RESPONDENTS: ------------ 1. MELOOR GRAMA PANCHAYAT REP BY ITS SECRETARY, MELOOR P O, CHALAKKUDY THRISSUR-680311. 2. SHAJU AUGUSTINE AKKARA, AGED 43 YEARS, BUSINESS, S/O.AUGUSTINE, AKKARA HOUSE M G ROAD, KIZHAKKE CHALAKUDY VILLAGE MUKUNDAPURAM TALUK-680307. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 30077 of 2013 (H) --------------------------- ## **APPENDIX** PETITIONER(S)' EXHIBITS ----------------------- P1:-TRUE COPY OF SALE DEED NO.156/1/2013 OF SRO CHALAKKUDY EXECUTED BY THE 2ND RESPONDENT IN FAVOUR OF THE PETITIONER DTD 9/1/2013. P2:-TRUE COPY OF THE BASIC TAX PAID RECEIPT NO 6818637 DTD 19/3/2013 ISSUED BY THE MELOOR VADAKKUMMURI VILLAGE OFFICE IN FAVOUR OF THE PETITIONER. P3:-TRUE COPY OF THE APPLICATION DTD 2/9/2013 FILED BY THE PETITIONER BEFORE THE IST RESPONDENT. P4:-TRUE COPY OF THE RECEIPT NO 0453419 DTD 2/9/2013 ISSUED BY THE IST RESPONDENT. P5:-TRUE COPY OF THE PLAINT OS NO 569/2013 DTD 11/9/2013 ALONG WITH THE AFFIDAVIT FILED BEFORE THE SUBORDINATE JUDGE'S COURT, IRNGALAKKUDA. P6:-TRUE COPY OF IA NO 3893 OF 2013 IN OS NO 569/2013 DTD 11/9/2013. P7:-TRUE COPY OF THE EX-PARTE INTERIM ORDER IN IA NO 3893/2013 IN OS NO 569/2013 DTD 12/9/2013 PASSED BY THE SUBORDINATE JUDGE'S COURT, IRINGALAKKUDA. P8:-TRUE COPY OF THE WRITTEN STATEMENT AND COUNTER CLAIM DTD 28/11/2013 FILED BY THE PETITIONER IN OS NO 569 OF 2013 BEFORE THE SUBORDINATE JUDGE'S COURT, IRINJALAKKUDA. P9:-TRUE COPY OF THE DETAILED COUNTER AFFIDAVIT DTD 28/11/2013 FILED IN EXT-P6 INJUNCTION APPLICATION BY THE PETITIONER. P10:-TRUE COPY OF THE LICENSE DTD 6/12/2012 FOR EXHIBITION FOR CINEMATOGRAPH SHOWS UNDER THE KERALA CINEMAS(REGULATION)ACT, 1975 ISSUED BY THE IST RESPONDENT IN FAVOUR OF THE 2ND RESPONDENT. P11:-TRUE COPY OF THE REPRESENTATION DTD 6/11/2013 FILED BY THE PETITIONER BEFORE THE IST RESPONDENT. P12:-TRUE COPY OF THE RECEIPT NO 0455117 DTD 6/11/2013 ISSUED BY THE IST RESPONDENT FOR EXT P11 REPRESENTATION. P13:-TRUE COPY OF THE ORDER NO A8-5237/2013 DTD 2/12/2013 ISSUED BY THE IST RESPONDENT TO THE PETITIONER. RESPONDENT(S)' EXHIBITS ----------------------- Nil. /true copy/ P.S to Judge ## **K.SURENDRA MOHAN, J. ----------------------------------------------------W.P(c) No.30077 of 2013-H ---------------------------------------------------Dated this the 10[th] December, 2013** ## **J U D G M E N T** The petitioner has filed this Writ Petition seeking the following reliefs: “i) to call for the records leading to Ext.P13 order and set aside the same by issuing writ of certiorari or by any other appropriate writ order or direction; ii) to issue writ of mandamus or any other appropriate writ order or direction to the Secretary of the 1[st] respondent and direct him to hear the petitioner on Ext.P11 representation; iii) to issue appropriate writ, order or direction staying Ext.P13 order, pending disposal of the above writ petition; iv) to grant such other reliefs as this Hon'ble Court deem fit and proper during the course of the proceedings.” 2. The case of the petitioner is that, he had purchased a Theatre from the 2[nd] respondent as per Ext.P1 sale deed. After the sale deed was duly executed, the 2[nd] respondent requested the petitioner for permission to conduct the Theatre for a period 2 **W.P(c) No.30077 of 2013-H** of six months, which was granted. The period has expired and the petitioner has not renewed his permission. However, in the meantime alleging that Ext.P1 was executed only as security for a loan transaction, on the specific understanding that the property would be re-conveyed to him once the loan amount was repaid, the 2[nd] respondent has filed O.S.No.569 of 2013 before the Sub Court, Iringalakkuda. The relief sought for in the Suit is re-conveyance of the property. As per Ext.P9 order of temporary injunction, the petitioner has been restrained from forcibly dispossessing the 2[nd] respondent of the Theatre. The Suit is still pending. 3. The petitioner has filed his written statement, Ext.P8, putting forward a counter claim and seeking recovery of possession of the Theatre from the 2[nd] respondent on the strength of his title acquired as per Ext.P1 sale deed. The matter is pending trial. 4. In the above circumstances, the 2[nd] respondent had sought for renewal of his licence to conduct the Theatre. The 1[st] respondent has by Ext.P13 granted the licence, despite objections preferred by the petitioner. The petitioner contends that being the owner of the property, he had a right to be **W.P(c) No.30077 of 2013-H** 3 afforded an opportunity of being heard before Ext.P13 was issued. Such an opportunity not having been afforded, it is contended that Ext.P13 is violative of the principles of Natural Justice and liable to be set aside. Reliance is also placed on a Division Bench decision of this Court in **Vamakshy v. State of Kerala** [1983 KLT 53]. According to the learned counsel for the petitioner, in **Philomina v. Executive Officer** [1987(2) KLT 89] a Single Bench of this Court has followed the earlier Division Bench decision and held that the owner of the Theatre has a right to be heard. For the above reasons, it is contended that Ext.P13 is liable to be set aside. 5. Heard. This Writ Petition comes up before me for admission. In the present case, the petitioner places reliance on Ext.P1 sale deed by which, according to him, he has acquired title over the property and the Cinema Theatre. However, Ext.P1 sale deed is the subject matter of challenge in O.S.No.569 of 2013 filed by the 2[nd] respondent. The allegation of the 2[nd] respondent is that, Ext.P1 was not executed for the purpose of conveying the property to the petitioner. But, the same was executed only as security for a loan transaction, on the specific understanding that the property would be re-conveyed to the 2[nd] 4 **W.P(c) No.30077 of 2013-H** respondent on repayment of the loan. Of course, the petitioner has refuted the said allegation in his written statement, Ext.P8. He has also made a counter claim and sought for recovery of the property from the 2[nd] respondent on the strength of the title that he claims to have acquired under Ext.P1. Therefore, in the present case, the petitioner's status as a landlord itself is in dispute and is the subject matter of a civil suit that is pending before the Sub Court, Iringalakkuda. Since the petitioner's title itself is disputed, he would be entitled to claim any right on the basis of his status as a landlord only after his title is established in the Suit. If the Civil Court finds that Ext.P1 is a validly executed sale deed, certainly the petitioner would be able to claim that he has a right to object to the grant of a licence to the 2[nd] respondent, as claimed. I also notice that the Sub Court has granted an interim order, Ext.P7, restraining the petitioner from forcibly dispossessing the 2[nd] respondent of the property, which is in force. According to the learned counsel for the petitioner, the Interlocutory Application has been posted for hearing on 13.12.2013. The above being the fact scenario in the present case, the decisions relied upon by the petitioner cannot have any application here. This is for the reason that, the petitioner's 5 **W.P(c) No.30077 of 2013-H** status as landlord itself is in serious dispute. 6. In view of the fact that the entire issue is pending consideration of the Sub Court, consideration of any of the contentions of the petitioner on the merits in this Writ Petition would only prejudice the adjudication that is to take place in the Suit, after both parties let in evidence. Therefore, I am not satisfied that any of the issues that arise for consideration in the Suit requires to be considered in this Writ Petition. 7. A perusal of Ext.P13 shows that the 1[st] respondent has taken note of the pendency of the Original Suit and has with necessary circumspection, granted only a temporary renewal of the licence to conduct the Theatre, subject to the rider that the said order would be subject to the decision of the civil court in the matter. Therefore, I do not find any grounds to interfere with Ext.P13 at this stage. It is for the petitioner to work out his remedies in the Suit, if necessary by seeking appropriate interlocutory orders also. The Sub Court, Iringalakkuda, which is in seizin of the entire dispute is sufficiently empowered to pass necessary interlocutory orders to safeguard the interest of both parties. Ext.P13 would cease to operate on the civil court pronouncing its judgment. Therefore, it is sufficient that this 6 ## **W.P(c) No.30077 of 2013-H** Writ Petition is disposed of leaving the parties to abide by the decision to be taken in the Suit that is pending. In view of the above, while declining relief in this Writ Petition, it is made clear that the parties shall abide by the decisions of the Sub Court, Iringalakkuda in O.S.No.569 of 2013, that is pending between the parties. Sd/- _**(K.SURENDRA MOHAN, JUDGE)**_ rtr/