Ibrahim Kutty v. Abdul Rasak and Kuzhimanna Grama Panchayath and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 10TH DAY OF NOVEMBER 2020 / 19TH KARTHIKA, 1942** **RP.No.656 OF 2020 IN WP(C). 14742/2020** **AGAINST THE ORDER/JUDGMENT IN WP(C) 14742/2020(P) OF HIGH COURT OF KERALA** ## **REVIEW PETITIONER/3RD RESPONDENT:** **IBRAHIM KUTTY AGED 62 YEARS S/O.KOMUKUTTY, KANNARATH VEEDU, KUZHIMANNA, KEEZHISSERY, KONDOTTY, MALAPPURAM DISTRICT, PIN - 673641.** **BY ADVS. SRI.B.N.SHIVSANKAR SRI.TINU T.JOSEPH SMT.ARCHANA HARIDAS K. SHRI.HOSH P. DAS SRI.R.JAYAKRISHNAN (MUTHUKULAM) SMT.ARCHANA U.** ## **RESPONDENTS/PETITIONER & RESPONDENT 1,2 & 4** **1 ABDUL RASAK AGED 47 YEARS, S/O.AHAMMEDKUTTY HAJI, RAMLATH MANZIL, KIZHISSERI, KUZHIMANNA AMSOM DESOM, MALAPPURAM DISTRICT.** **2 THE KUZHIMANNA GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, KUZHIMANNA P.O., MALAPPURAM DISTRICT, PIN - 673 641.** **3 THE SECRETARY, KUZHIMANNA GRAMA PANCHAYATH MALAPPURAM DISTRICT, PIN - 673 641.** 2 Review Petition No. 656 of 2020 in W.P(C) No.14742 of 2020 **4 DEPUTY DIRECTOR OF PANCHAYATH CIVIL STATION, MALAPPURAM DISTRICT, PIN - 676 505.** **R1 BY ADV. SRI.K.RAKESH R2-3 BY ADV. SRI.VINOD SINGH CHERIYAN R2-3 BY ADV. SRI.T.M.KHALID R2-3 BY ADV. SMT.K.P.SUSMITHA** ## **SR GP SRI SAIGI JACOB PALATTY** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 10.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 3 Review Petition No. 656 of 2020 in W.P(C) No.14742 of 2020 ## ALEXANDER THOMAS, J. **==> picture [189 x 2] intentionally omitted <==** Review Petition. No. 656 of 2020 in W.P(C) No.14742 of 2020 -----------------------------------Dated this the 10[th ] day of December, 2020 ## **O R D E R** The afore captioned petition has been filed by R3 in W.P(C) No.14742/2020 seeking review and recall of the impugned judgment dated 30-07-2020 rendered by this Court in that W.P(C) filed by R1 herein (writ petitioner). 2. Heard Sri.B.N.Shiv Shankar, learned counsel appearing for the review petitioner/R3 in W.P(C), Sri.K.Rakesh, learned counsel appearing for R1 in R.P/writ petitioner, Sri.Vinod Singh Cherian, learned counsel appearing for R2 & R3 in R.P (Kuzhimanna Grama Panchayat) and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for R4 in R.P. This Court had dispensed with notice to R3 in the W.P(C) and has issued the following directions and orders in para Nos.4, 5 & 6 of the impugned judgment dated 3007-2020 in the said W.P(C) No.14742/2020, which read as follows: _“4. It is pointed out that the application for renewal of licences has been received by the 2[nd] respondent on 20.3.2020 as evident from Ext.P-2, and even if the period of_ Review Petition No. 656 of 2020 in W.P(C) No.14742 of 2020 4 _lock down from 24.3.2020 upto 24.4.2020 is excluded, then the said period of 30 days would have expired as early as on 20.5.2020 and since no decision has been conveyed to the petitioner by the 2[nd] respondent on or before 20.5.2020, the petitioner has successfully obtained the benefit of deemed license in terms of Section 236(6) of the Kerala Panchayat Raj Act. Further that, Ext.P-3 stop memo dated 14.7.2020 can never be treated as a communication of decision in relation to the application for renewal referred to in Ext.P-2, for the simple reason that Ext.P-3 is a stop memo directing the petitioner to stop the business in view of non renewal of license. Moreover, Ext.P-3 stop memo has been issued much after the expiry of 30 days time limit. Further on merits, the petitioner would submit that it is by now well settled by a series of rulings of the Apex Court as well as this Court, including the one rendered by the Apex Court in the case in_ _**Sudhakaran v. Corporation of Trivandrum** [(2016) 14 SCC 263] as well as the decision of Division Bench of this Court in_ _**Marimuthu v. D.G.P.** [1999 (3) KLT 62] , it is by now well established that the consent of land lord for renewal of trade license by the municipality would come into play only at the time of original grant of license, and such consent is not required at the time of renewal of trade license. The petitioner would place reliance on the dictum laid down in_ _**Sudhakaran's** case supra as well as in_ _**Marimuthu's** case supra, etc._ _5. After having heard both sides, since Ext.P-3 adverse decision has been taken behind the back of the petitioner and without affording any reasonable opportunity of being heard to the petitioner, it is only to be held that the same is vitiated for blatant violation of elementary principles of natural justice and fairness, and that the matter would require a remit. For effectuating such a remit it is ordered that, Ext.P-3 order will stand set aside and quashed. Consequently it is ordered that, the application submitted by the petitioner for renewal of trade license for the year 20202021 referred to in Ext.P-2 receipt dated 20.3.2020 will stand remitted to the 2[nd] respondent Secretary of Kuzhimanna Grama Panchayat, for decision in accordance with law and after hearing the petitioner as well as the 3[rd] respondent land lord._ _6. The 2nd respondent Secretary of Kuzhimanna Grama Panchayat, will afford reasonable opportunity of being heard to the petitioner as well as the 3[rd] respondent_ 5 Review Petition No. 656 of 2020 in W.P(C) No.14742 of 2020 _and pass orders on the application for renewal of trade license without any further delay at any rate within a period of 2 weeks from the date of receipt of a certified copy of this judgment. While doing so, the 2[nd] respondent will initially consider the contention raised by the petitioner that he is entitled for the benefit of deemed license in view of the mandatory provisions contained in Section 236(6) of the Kerala Panchayat Raj Act and also the alternate contention that the consent of land lord is not required for renewal of trade license and therefore the 2[nd] respondent is bound to renew the trade license in favour of the petitioner, in view of the dictum laid down in the aforecited decisions.”_ 3. Now, the main contention raised by the review petitioner is that, though initially a rent deed was executed by the review petitioner (landlord) in favour of R1 in R.P/writ petitioner to lease out the subject building in the year 2010, it was renewed upto 2017. Later, the said rent deed was not renewed by the review petitioner and that the writ petitioner had forced a renewed rent deed and claimed for the renewal of the trade licence of the writ petitioner to run his jewellery shop in the said building and that based on the complaint of the review petitioner, the police has registered a crime against the writ petitioner for offences including that for forgery and that the abovesaid aspect regarding forgery has been suppressed by the writ petitioner in the W.P (C) and that the writ petitioner cannot be legally permitted to seek renewal of the trade licence from the 6 Review Petition No. 656 of 2020 in W.P(C) No.14742 of 2020 respondent Panchayat on the basis of forged renewed rent deed etc. 4. Per contra, the contention of the writ petitioner is that, the pendency of the criminal case based on the allegation of forgery has been clearly stated in para No.2 of the abovesaid WP(C) and also about the registration of the crime No.540/2018 of Kondotty Police Station, which led to the pendency of Calendar Case, C.C NO.79/2020 on the file of the Judicial First Class Magistrate Court, Malappuram. Further that the writ petitioner is entitled to get renewal of the trade licence in view of the dictum laid by the Apex Court in decisions as in _**Sudharkaran v. Corporation of Trivandrum**_ [(2016) 14 SCC 263], etc, and further that mere raising of allegations by the landlord regarding the alleged forgery said to have been committed by the tenant cannot be the basis to deny renewal of trade licence by the local body and that it has been well settled by this Court in decisions as in _**Vijaya Jyothi Traders v. Municipal Corporation of Thrissur and others**_ [2018 (5) KHC 680], in paragraph No.21 thereof, that until the competent court of law decides as regards the correctness of the allegations of forgery, it cannot be treated as a disqualification for considering of trade licence by the local body and 7 Review Petition No. 656 of 2020 in W.P(C) No.14742 of 2020 that the Secretary of the local body is not vested with any powers to reject an application for grant of trade licence or renewal of the trade licence on the ground of alleged forgery and that the abovesaid position of law laid down by this Court in _**Vijaya Jyothi Traders's**_ case (supra) [2018 (5) KHC 680] has been relied on by the Division Bench in the decisions as in _**Babu C.S v. Vijayan and others**_ [(2019) 1 KHC 25], etc. 5. Further after hearing it is seen that, though the resp0ndent Panchayat Secretary has afforded opportunity of being heard to both the writ petitioner as well the review petitioner before issuance of the renewed trade licence in favour of the writ petitioner, it is now admitted by the respondent Panchayat Secretary that no formal orders or proceedings have been issued by him dealing with various contentions of both sides and that as a matter of fact, after hearing both sides he had taken a decision to renew the trade licence, but no proceedings or order in that regard was formally issued and that the trade licence was formally renewed and granted to the writ petitioner on 15-09-2020. The abovesaid action on the part of the resp0ndent Panchayat Secretary in not passing order or proceedings so as to deal 8 Review Petition No. 656 of 2020 in W.P(C) No.14742 of 2020 with the rival contentions of both sides in a case like this and merely renewing the trade licence, is not right and proper. Now in pursuance of the interim order passed by this Court in this R.P, this Court is informed that the respondent Panchayat Secretary has already issued proceedings suspending the operation of the renewed trade licence issued in favour of the writ petitioner. 6. Further that Sri.B.N.Shiv Shanker, learned counsel appearing for the review petitioner has raised certain other contentions as well and that the area in question of the building owned by him is situated is not one, which is notified for the purpose of the enforcement of the Kerala Building (Lease and Rent Control) Act and that therefore the relationship between the landlord and tenant in such an area would be governed by the provisions contained in the Transfer of Property Act and that as the review petitioner/landlord has already terminated the tenancy by issuing notice to the writ petitioner/tenant and as thereafter rent has not been received by the review petitioner/landlord, the writ petitioner at best can claim that he is a tenant by sufferance, who is a trespasser and that in view of these aspects flowing out as a result of the 9 Review Petition No. 656 of 2020 in W.P(C) No.14742 of 2020 non-applicability of the provisions of the Rent Control Act to the area in question, petitioner cannot seek the benefit of the abovesaid decisions rendered by the Apex Court and this Court relied on by him, etc. 7. Since various rival contentions have been raised by the parties, it is all the more so that the respondent Panchayat Secretary should have considered the impact of these contentions and then only should have passed an order on the plea of the writ petitioner for renewal of the trade licence after dealing with such contentions and then take a considered decision thereon. Accordingly, the following directions and orders are passed: - _(i) The act on the part of the respondent Panchayat Secretary in having issued the renewal of the trade licence on 15-09-2020 without passing an order or proceedings dealing with the rival contentions of the parties, is illegal and improper and would amount to non-compliance of the directions in the judgment in the abovesaid W.P(C). Hence the abovesaid decision taken by the respondent Panchayat Secretary will stand quashed and set aside on account of the abovesaid_ 10 Review Petition No. 656 of 2020 in W.P(C) No.14742 of 2020 _reasons and also to enable the Panchayat Secretary to pass a_ _considered order consequent to this remit._ - _(ii) The plea/application of the writ petitioner for renewal of trade licence will stand remitted to the respondent Panchayat Secretary to consideration and decision afresh._ - _(iii) The Panchayat Secretary will issue notices of hearing to both the review petitioner as well as the writ petitioner and then may permit them to file their written submissions in the matter and then should afford reasonable opportunity of being heard to both these parties through their authorised representative/counsel if any, and then should deal with the rival contentions and then pass a considered order, so as to take a decision on the plea of the petitioner for renewal of the trade licence in accordance with law, without much delay, preferably within a period of one month from the date of production of a certified copy of this order. It is made clear that the abovesaid directions in the matter of remit has been made since the respondent Panchayat Secretary has not passed any order or proceedings so as to deal with rival_ 11 Review Petition No. 656 of 2020 in W.P(C) No.14742 of 2020 _contentions of the parties and also to enable the respondent Panchayat Secretary to hear the rival parties and then consider the rival contentions and then to pass a considered order on the said application of the petitioner._ 8. The directions and orders passed by this Court in the impugned judgment will stand modified to the extent as directed herein above. Until orders are passed afresh by the resp0ndent Panchayat Secretary on the application of the petitioner for renewal of the trade licence as afore directed, the functioning of the petitioner's shop need not be disturbed. With these observations and directions, the above Review Petition will stand disposed of. **Sd/ALEXANDER THOMAS, JUDGE** KAS 12 Review Petition No. 656 of 2020 in W.P(C) No.14742 of 2020 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1** **TRUE COPY OF THE SUIT FILED O.S.201/2019.** **ANNEXURE A2 TRUE COPY OF THE WRITTEN STATEMENT.** - **ANNEXURE A3 TRUE COPY OF THE I.A.1/2019.** - **ANNEXURE A4 TRUE COPY OF THE COUNTER FILED BY 1ST RESPONDENT.** **ANNEXURE A5 TRUE COPY OF THE F.I.R. AS CRIME NO.540/18.** - **ANNEXURE A6 TRUE COPY OF THE REPORT FOR FURTHER INVESTIGATION.** - **ANNEXURE A7 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER.** - **ANNEXURE A8 TRUE COPY OF THE ACKNOWLEDGMENT REGARDING COMPLAINT ABOUT LICENCE.** - **ANNEXURE A9 TRUE COPY OF INTIMATION RECEIVED FROM THE PANCHAYATH ASSISTANT DIRECTOR.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1(A) TRUE COPY OF THE ORDER DATED 11-04-2019 IN CRL.M.C NO.2112/2019 OF THIS HON'BLE COURT.**