LE ARABIA FAMILY RESTAURANT & SHAMLAD v. PANMANA GRAMA PANCHAYATH & SECRETARY & ASUMABEEVI

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 5[TH] DAY OF FEBRUARY 2024 / 16TH MAGHA, 1945 ``` ## **`WP(C) NO. 20329 OF 2023`** ## **`PETITIONERS:`** - `1 LE ARABIA FAMILY RESTAURANT, PP-XXII/620, KUTTIVATTOM, KUTTIVATTOM, P.O, KOLLAM DISTRICT, REPRESENTED BY ITS PROPRIETOR, SHAMLAD, SON OF JALALUDHHEEN, AGED 41 YEARS KANDACHAM HOUSE, EDAPPALLYKOTTA P.O., PONMANA VILLAGE, KARUNGAPILLY TALUK, KOLLAM DISTRICT, PIN - 691583` ``` 2SHAMLAD, AGED 41 YEARS SON OF JALALUDHHEEN, KANDACHAM HOUSE, EDAPPALLYKOTTA P.O., PONMANA VILLAGE, KARUNGAPILLY TALUK, KOLLAM DISTRICT, PIN - 691583 BY ADVS. P.M.ZIRAJ IRFAN ZIRAJ MOHAMMED SHEHIN.S.S BIPIN KRISHNAKUMAR ABHIJITH P.A. VISHNU P.S. NIMISHA ANTONY ``` ## **`RESPONDENT:`** - `1 PANMANA GRAMA PANCHAYATH, EDAPPALLYKOTTA P.O, CHAVARA, KOLLAM DISTRICT REPRESENTED BY ITS SECRETARY, PIN - 691583` - `2 THE SECRETARY, PANMANA GRAMA PANCHAYATH, EDAPPALLYKOTTA P.O., CHAVARA, KOLLAM DISTRICT, PIN - 691583` - `3 ASUMABEEVI, WIFE OF BASHEERUDHEEN, CHAKKALATH THEKKATHIL (AMBISSERRY VADAKKATHIL),` W.P(C).20329/2023 2 ``` PADANAYARKULANGARA, KARUNAGAPPILLY VILLAGE, KOLLAM DISTRICT, PIN - 690518 BY ADVS. T.R.HARIKUMAR B.RENJITHKUMAR ARJUN RAGHAVAN CLARA SHERIN FRANCIS ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P(C).20329/2023 3 ## **P. V. KUNHIKRISHNAN, J. ------------------------------------------W.P(C).No.20329 of 2023 ------------------------------------------Dated this the 5[th] day of February, 2024** ## **JUDGMENT** The above Writ Petition is filed with the following prayers: 1. Issue a writ of mandamus or any other appropriate writ, order or direction to the second respondent to consider and dispose the application of petitioner for renewal of license which leading to exhibit P8 acknowledgment without any further no objection certificate or consent from the land lord within a reasonable period which this Honourable court may deem fit and proper in the interest of justice and circumstances of the case and thereby renew exhibit P4 license of petitioner. 2. Issue a writ of certiorari or any other appropriate writ, direction or order by call for the records leading to the issuance of exhibit P10 order issued by the second respondent and set aside the same as illegal. 3. Such other writ, order or direction which this Honorable Court may deem fit and proper in the interest of justice and circumstances of the case. W.P(C).20329/2023 4 ## And 4. Dispense with filing of translation of vernacular documents produced along with writ petition. **==> picture [32 x 13] intentionally omitted <==** 2. The above Writ Petition is filed mainly for issuing direction to the 2[nd] respondent to consider and dispose the application of the petitioners for renewal of license leading to Ext.P8 acknowledgment without any further No Objection Certificate or consent from the landlord within a reasonable period. The 1[st] petitioner is a family restaurant operated by its proprietor, the 2[nd] petitioner. The restaurant is operating in the building bearing no.22/620 of Panmana Grama Panchayath. The land is owned by the 3[rd] respondent who executed a license deed dated 15.04.2019 and thereby permitted the 2[nd] petitioner to construct a building in the property at his expense and conduct a restaurant therein. Apart from Ext.P1, the 3[rd] respondent also issued consent letter dated 04.01.2022 for renewing the license of the 1[st] petitioner is the submission. The 2[nd] petitioner also forced to put signature in another deed dated 01.01.2022 due to compulsion on the part of the 3[rd] respondent is the further submission. It is submitted that, W.P(C).20329/2023 5 Ext.P1 license deed is in existence. After the execution of the license deed, the 2[nd] petitioner raised the level of the land upto the National Highway by deposit of ordinary earth. It is the case of the 2[nd] petitioner that he spent huge amount for the said development work. After the 2[nd] petitioner constructed the building therein, the same was electrified at his expense and obtained electric connection to the building and thereafter conducted the business. It is the case of the petitioners that the 2[nd] petitioner spent all the expenses towards the development and construction and other activities only on the basis of the assurance given by the 3[rd] respondent that the 2[nd] petitioner can conduct the business till he desires. It is also submitted that the 1[st] respondent issued license to the 1[st] petitioner to conduct the hotel business in the premises. There is some dispute between the 2[nd] petitioner and the 3[rd] respondent regarding occupation of the property and the 3[rd] respondent filed a suit before the Munsiff Court, Karunagappally as O.S.No.368/2022 with a prayer to evict the petitioners and to demolish the building constructed by the 2[nd] petitioner. It is submitted that the 2[nd] petitioner appeared in the suit and submitted his objection and that W.P(C).20329/2023 6 the matter is pending consideration. Before the expiry of Ext.P2 license, the 2[nd] petitioner submitted an application for Sanitary Certificate before the health centre of the 1[st] respondent to produce along with the application for renewal of the license before the 2[nd] respondent, which is mandatory. But the Sanitary Certificate was issued to the 2[nd] petitioner only on 26.05.2023. Thereafter, the petitioner submitted an application for renewal of Ext.P5 license on 26.05.2023. In Ext.P8, the 2[nd] respondent mentioned the service delivery date as on 03.06.2023. The 3[rd] respondent submitted an application before the panchayath requesting not to renew the license of the 1[st] petitioner. Thereafter, she submitted a Writ Petition before this Court as WPC 11270/2023 and in the said Writ Petition, this Court was pleased to order that the renewal of license, if any, by the 2[nd] petitioner will be subject to the further orders in the Writ Petition. The said Writ Petition was dismissed as infructuous. It is the case of the petitioners that, there is no adverse order from the Munsiff Court or this Court regarding the renewal of the license. The fact being so , the 2[nd] respondent issued an order dated 30.05.2023 to the 2[nd] petitioner and thereby directed the W.P(C).20329/2023 7 petitioners to stop functioning of the hotel and report the same to the 2[nd] respondent, otherwise action will be taken against the petitioners. The said order has been issued to the 2[nd] petitioner without giving an opportunity of personal hearing is the submission. The 2[nd] petitioner submitted a reply dated 06.06.2023 to the same narrating the same but, no action has been taken by the respondent. Hence, this Writ Petition is filed. 3. Heard counsel for the petitioner and the counsel appearing for the panchayath. I also heard the counsel appearing for the 3[rd] respondent. 4. When this Writ Petition came up for consideration, this Court passed an interim order staying all further proceedings consequent to Ext.P10 order and that order is in force even now. It is the settled position that in the light of the principle laid down by the Apex Court in **Sudhakaran v. Corporation of Trivandrum** [2016(3) KLT 247 (SC)] and the dictum laid down by the Division Bench of this Court in **Babu v. Vijayan [2019(1) KLT 684],** the requirement of consent of landlord is applicable only when a person intends to obtain a license for the first time. The relevant portion of W.P(C).20329/2023 8 the dictum laid down by the Apex Court in **Sudharan** ’s case (supra) is extracted hereunder: ‘8. After due consideration of the issues involved, we find merit in the submission made on behalf of the appellant. The statutory provision already quoted above shows that the requirement of consent of landlord is applicable only when a person intends to obtain a license for the first time. Renewal or subsequent application for obtaining license on expiry of the period of the existing license, during the currency of the tenancy, is not applicable for obtaining license. Even in the case of application for obtaining license for the first time, the tenant cannot be deprived of running lawful business merely because the landlord withheld the consent. Valid tenancy itself has implied authority of the landlord for legitimate use of the premises by the tenant.’ The relevant portion of the judgment in **Babu** ’s case (supra) is extracted hereunder: ‘8. On the above legal issue, we may benefit by referring to the pronouncement in Sudhakaran v. W.P(C).20329/2023 9 Corporation of Trivandrum and another reported in (2016 (3) KLT 247 (SC)=(2016) 14 SCC 263) where the Supreme Court on the issue of the renewal of a trade license, stated that a tenant cannot be deprived of running a lawful business merely because the landlord withheld his consent, and further that, a valid tenancy itself has implied authority of the landlord for legitimate use of the premises by the tenant.’ 5. In the light of the above principle laid down by this Court and the Apex Court, I am of the considered opinion that the 1[st] respondent is bound to consider the renewal application _dehors_ the reason mentioned in Ext.P10. Therefore, this writ petition is disposed of with the following directions; 1. Ext.P10 is set aside. 2. The 2[nd] respondent is directed to dispose of the application of the petitioners for renewal of license as evident by Ext.P8 acknowledgment, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a certified copy of this judgment. W.P(C).20329/2023 10 3. Till final orders are passed, the status-quo as on today will continue. Sd/- **P. V. KUNHIKRISHNAN JUDGE** Sbna/ W.P(C).20329/2023 11 ## **`APPENDIX OF WP(C) 20329/2023`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1TRUE COPY OF THE LICENSE DEED DATED 15.4.2019 EXECUTED BY THE THIRD RESPONDENT IN FAVOUR OF THE SECOND PETITIONER ``` - `Exhibit P2 TRUE COPY OF THE CONSENT LETTER DATED 4.1.2022 ISSUED BY THE THIRD RESPONDENT TO THE SECOND PETITIONER` - `Exhibit P3 TRUE COPY OF THE DEED DATED 01.01.2022 EXECUTED BETWEEN THE SECOND PETITIONER AND THIRD RESPONDENT` - `Exhibit P4 TRUE COPY OF THE LICENSE DATED 17.9.2019 ISSUED BY THE SECOND RESPONDENT TO THE FIRST PETITIONER` - `Exhibit P5 TRUE COPY OF THE LAST LICENSE DATED 19.10.2022 ISSUED BY THE SECOND RESPONDENT TO THE FIRST PETITIONER` - `Exhibit P6 TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT ISSUED BY THE COMMUNITY HEALTH CENTRE, CHAVARA DATED 14.2.2023` - `Exhibit P7 TRUE COPY OF THE SANITARY CERTIFICATE DATED 26.05.2023 ISSUED BY THE COMMUNITY HEALTH CENTRE, CHAVARA` - `Exhibit P8 TRUE COPY OF THE ACKNOWLEDGEMENT RECEIPT DATED 26.05.2023 ISSUED BY THE SECOND RESPONDENT REGARDING RECEIPT APPLICATION FOR RENEWAL` - `Exhibit P9 TRUE COPY OF THE INTERIM ORDER OF THIS HONOURABLE COURT DATED 30.3.2023 IN WPC NO.11270/2023` ``` Exhibit P10TRUE COPY OF THE ORDER DATED 30.5.2023 ISSUED BY THE SECOND RESPONDENT Exhibit P11TRUE COPY OF THE REPLY DATED 06.06.2023 SUBMITTED BY THE SECOND PETITIONER BEFORE THE SECOND RESPONDENT ```