M. Satheesh v. The Secretary, Cherthala Municipal Council and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 30TH JANUARY 2008 / 10TH MAGHA 1929 WP(C).No. 27619 of 2007(K) -------------------------- PETITIONER: - ------------ M.SATHEESH, S/O GOPALAKRISHNAN NAIR, PADMAVEETTIL, MEPARAMBATH, PANNIAMKARA, KOZHIKODE, REPRESENTED BY HIS P/A HOLDER, THOMAS JOSEPH, S/O JOSEPH KOSHY, LEMON VILLA, C.M.C.24, CHERTHALA P.O. BY ADV. SRI.ROY CHACKO RESPONDENTS: - ------------- 1. THE SECRETARY, CHERTHALA MUNICIPAL COUNCIL, MUNICIPAL OFFICE, CHERTHALA. 2. SHINO DAVID, KOTTAPARAMBIL VEETTIL, CHERTHALA SOUTH VILLAGE, THEKKU MURI, CHERTHALA. 3. SHELTON DAVID, KOTTAPARAMBIL VEETTIL, CHERTHALA SOUTH VILLAGE, THEKKU MURI, CHERTHALA. 4. OMANAKKUTTAN, CHITHIRA VEETTIL, S/O RAVEENDRAN CHANNAR, KANICHANALLOOR MURI, CHEPPAD P.O., ALAPPUZHA DISTRICT. R1 BY ADV.MR.J.OM PRAKASH, S.C. R2 & R3 BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. R4 BY ADV.SRI.G.GOPAKUMAR (CHERTHALA) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **PIUS C. KURIAKOSE,J.** **- - - - - - - - - - - - - - - - - - - - - - - - -** W.P.(C) No.27619 of 2007 **- - - - - - - - - - - - - - - - - - - - - - - - -** Dated: 30[th] January, 2008 ## **JUDGMENT** Ext.P4 proceedings of the Secretary of the Cherthala Municipality cancelling licence given to the petitioner one Satheesh for conduct of a hotel by name 'Royal Sands' in premises having door No.24/180B of Cherthala Municipality is under challenge in this Writ Petition wherein apart from prayer to quash Ext.P4, there is a further prayer to command the first respondent, the Secretary of the Municipality to renew the licence in favour of the petitioner for the remaining period of 2007-08 to conduct the restaurant in the above building. The petitioner is represented by his Power of Attorney Holder one Thomas Joseph and the building belongs to respondents 2 and 3. The landlords themselves were previously conducting the restaurant by name 'Vimala' restaurant in the premise and pursuant to Ext.P1 agreement between the landlords on the one part and the 4[th] respondent on the other, the petitioner was put in possession of the premises as well as various items of movables, furniture and fixtures detailed in the schedule to Ext.P1. The terms and conditions of the agreement, inter alia, are that the daily rent payable by the tenant shall be Rs.750/- and the petitioner claims that a total amount W.P.C.No.27619/07 - 2- of Rs.7 lakhs was paid in two instalments as advance to respondents 2 and 3. Upon coming in possession of the property by virtue of Ext.P1, the name of the restaurant was changed as Royal Sand and the same was being conducted by the petitioner through his Power of Attorney Holder. While so, alleging that the tenant has violated the licence and that the licence fee from 1.2.2006 is in default, Ext.P2 lawyer notice dated 13.2.2006 was issued at the instance of the landlords demanding surrender of the vacant possession from the petitioner and the 4[th] respondent. To Ext.P2, Ext.P3 reply dated 30.3.2006 was sent contending that the lease is for a period of five years and that there is a stipulation that after the expiry of every 11 months the arrangement will be renewed. It was also contended that the jural relationship between the parties is not that of the licensor and licensee and that the arrangement is one of lease governed by the provisions of the Rent Control Law. The application submitted by the petitioner for renewal of licence to the Cherthala Municipality was rejected by the Municipality in terms of Section 492(3) holding that consent has not been given by the landlords and Ext.P4 is the order of rejection. Ext.P5 series of rent receipts are relied on by the petitioner to show that rent has been promptly paid by him for the W.P.C.No.27619/07 - 3- period from 1.2.2005 to 1.2.2006. The intention of the landlords, it is alleged, is to harass the petitioner and the landlords filed Ext.P6 suit before the Munsiff's Court, Cherthala seeking realisation of arrears of rent due from 1.2.2006. To that suit Ext.P7 written statement has been filed contending that the entire arrears of rent has been discharged. It is also pointed out that more than Rs.6 lakhs has been expended towards purchase of furniture, other implements, air conditioning maintenance etc. of the restaurant. The restaurant has been closed on account of Ext.P4 order of the Municipality which is branded as unreasonable and arbitrary. It is impugning Ext.P4 on various grounds that the Writ Petition has been filed by the petitioner seeking the reliefs already indicated. 2. The second respondent-landlord has filed a detailed counter affidavit contending that the Writ Petition is not maintainable since even on the admission of the petitioner, he has a statutory remedy of appeal to the Tribunal for Local Self Government Institutions against Ext.P4 order of rejection. It is alleged that the petitioner has withheld material facts from this court and has given a distorted version of the facts which disentitles him to favourable exercise of discretion of this court under Article 226 of the Constitution. It is alleged that the W.P.C.No.27619/07 - 4- signatory to the Writ Petition is unauthorisedly in possession of the premises in question. The writ petitioner became constrained to abandon the business and flee from the locality. Taking advantage of that situation, the signatory to the Writ Petition, Thomas Joseph @ Reji assumed possession of the premises without referring to the landlords. The Power of Attorney, it is contended, is product of a rank forgery. The signatures of Mr.Satheesh figuring upon the Power of Attorney are not genuine. Even if it is assumed that the Power of Attorney is a genuine one, the Power of Attorney will not empower Mr.Reji to be put in possession of the premises so long as the landlords do not grant their consent for the same. Reji is indulging illegal activities in the tenanted premises. He and his men are consuming alcoholic drinks inside the premises and the landlords stand the risk of being impleaded as co-accused for offences under the Abkari Act. It is also pointed out that the rent is in arrears since March, 2006 and on account of the huge arrears caused by the tenants, the landlords was unable the dues payable to the K.F.C. with whose financial assistance only the tenanted building was constructed. It is pointed out that the amounts payable to the K.F.C. is Rs.7,15,000/-. It was in that context that the Writ Petition was filed W.P.C.No.27619/07 - 5- by the landlords and this court passed Ext.R2(a) judgment directing the Secretary of the Municipality to pass earlier orders on the representation submitted by the landlords. It was consequent to Ext.R2(a) that Ext.P4 impugned order was passed by the Secretary after conducting a hearing with notice to all affected parties. Mr.Reji who is the signatory to this Writ Petition is not entitled to avail any benefits out of Ext.P1. Reji has never been accepted by the landlords as the tenant. Reji is therefore not entitled to contend that he is entitled to continue in possession unless evicted by process of law. 3. To the above counter affidavit, a reply affidavit has been filed by the petitioner. Ext.P9 produced along with the reply affidavit is the Power of Attorney. It is stated that Ext.P2 lawyer notice was sent without any justification. The petitioner was prepared to pay the rent from 1.3.2006 but respondents 2 and 3 refused to receive payment and rushed to the court filing suit for recovery of money. The reply affidavit reiterates the contention in the Writ Petition and denies those raised through the counter affidavit. It is pointed out that Ext.R2(a) judgment was delivered at the admission stage itself. No notice was received either by the writ petitioner or his Power of Attorney Holder from the Municipal Council pursuant to Ext.R2(a). W.P.C.No.27619/07 - 6- The small delay in the matter of filing the Writ Petition was only because the petitioner was waiting for hearing from the respondents 2 and 3 regarding an amicable settlement of the matter. By way of abundant caution, the petitioner has filed Ext.P10 application for renewal of licence on 6.9.2007 and Ext.P11 is the receipt regarding the said application. Mr.Satheesh has utmost trust in the signatory to the Writ Petition who continues to enjoy the confidence of Mr.Satheesh. Mr.Satheesh is employed in U.A.E. with his wife and has not come home since November, 2006. Mr.Satheesh has no notice regarding Ext.R2(a) judgment. Mr.Reji took over the administration of the hotel only in May, 2006 and could continue the hotel only till 31.3.2007. The furniture and equipments for running the restaurant belonging to the petitioner are lying idle in the building and due to non-functioning of the unit. They are getting rusted without any utility. The admitted arrears cover the period from 1.3.2006 to 31.3.2007 at the rate of Rs.750/- per day and this amount when compared to the advance amount of Rs.7 lakhs is a small amount. Closing down of the restaurant at the instance of respondents 2 and 3 causing heavy loss to the petitioner. Had it not been for Ext.P4 order the restaurant would have functioned properly, in which case the W.P.C.No.27619/07 - 7- entire amount would have been paid regularly from the income derived from the business. The present stalemate is on account of the unreasonable and recalcitrant attitude of respondents 2 and 3. 4. The 4[th] respondent also has filed a counter affidavit supporting the petitioner's case in all respects. He has produced Ext.R4(a) which is copy of the Power of Attorney executed by him in favour of the signatory to the Writ Petition. It is alleged in the counter affidavit that the landlords after sending Ext.P2 notice, received huge amounts from one Rajan and Kareem suppressing Ext.P1 rental arrangement and claiming the building in their possession giving them the right to run the hotel. On coming to know this, the 4[th] respondent filed a criminal complaint before the Police alleging cheating. On the basis of that, a case has been registered and F.I.R. has been submitted to the Judicial First Class Magistrate Court, Cherthala. The father of respondents 2 and 3 received a sum of Rs.3 lakhs from Joseph Kalathil suppressing the subsistence of Ext.P1 rental arrangement as consideration for admitting him as a partner of his erstwhile business of Vimala restaurant. Ext.R4(b) is copy of that agreement. 5. I have heard the submissions of Mr.Roy Chacko, learned W.P.C.No.27619/07 - 8- counsel for the petitioner, Mr.Mathew John, learned counsel for respondents 2 and 3, Mr.J.Om Prakash, Standing Counsel for the Cherthala Municipality and Mr.G.Gopakumar, counsel for the 4[th] respondent. 6. Considering the vehement submission of Mr.Mathew John that the Power of Attorney relied on by the signatory to the Writ Petition is not a genuine one and that Satheesh, the writ petitioner will not be prepared to own up the Writ Petition or to support the Power of Attorney Holder's endeavour to do business under his name, I directed Mr.Thomas Joseph, the signatory to the Writ Petition to produce before this court an affidavit duly signed by the writ petitioner owning up the Power of Attorney. Pursuant to that, the writ petitioner filed Ext.P13 affidavit sworn to by himself and duly attested by the Vice Consul, Consulate General of India, Dubai. He has also filed copy of the Power of Attorney attested by the Vice Consul, Consulate General of India, Dubai and also by himself as Ext.P13(a). 7. It was extensive arguments which were addressed before me by the counsel. Mr.Roy Chacko while addressing me on the basis of the grounds raised, drew my attention to Exts.P1, P2, P4, P7, P8, P9 and P10. He drew my attention to the statutory provisions, i.e., W.P.C.No.27619/07 - 9- Sections 492 and 509 of the Municipality Act. The learned counsel would refer to the judgments of this court in **Damodaran Suran v. Kesavan Meenakshy** (1983 KLT 1013) and **Marimuthu v. Director General of Police** (1999(3) KLT 662) and also to the judgments of the Supreme Court in **Biswabani Pvt. Ltd. v. Santhosh Kumar Dutta** [(1980) 1 S.C.C. 185], **D.K.Yadav v. J.M.A.Industries Ltd.** [ (1993) 3 S.C.C. 259], **Harbanslal Sahnia v. India Oil Corporn. Ltd** . [(2003) 2 S.C.C. 107] and **Ram and Shyam Company v. State of Haryana** [(1985) 3 S.C.C. 267]. 8. Mr.Mathew John, learned counsel for the landlords would place strong reliance on the judgment of the Division Bench of this court in **District Executive Officer v. Abel** (2006(2) KLT 758) and would endeavour to distinguish the precedents cited by Mr.Roy Chacko on facts which obtain in this case. 9. As directed by me, the standing counsel for the Municipality made available for my perusal the municipal files relating to Ext.P4 order as well as the file relating to the petitioner's application for review of Ext.P4 and renewal of the D & O licence. The file relating to Ext.P4 shows that Ext.P4 order is not preceded by a hearing of the petitioner, though it would appear as if hearing notices were W.P.C.No.27619/07 - 10- attempted to be served by the Municipality on the tenant-licensee. All those attempts failed since the tenant licensee was not in station and the business had already been entrusted with the signatory to the writ petition, the licensee's power of attorney holder. The existence of a statutory alternative remedy is the main plank on which Sri. Mathew John set up his defence of Ext.P4. Existence of an alternative remedy is not an absolute bar to the exercise of constitutional jurisdiction by this Court though as a rule of prudence this Court may in many cases decline to exercise jurisdiction when it is noticed that the aggrieved party has an alternate remedy available to him under the statute. I am not inclined on the facts of this case to hold that the remedy before the Tribunal is an effective alternative to the remedy available to the petitioner under Article 226 of the Constitution from this Court. The basic premise on which Ext.P4 is issued is that the consent of the landlord of the building is not produced in spite of directions in that regard. The issue is covered in favour of the petitioner by judgment of this Court in **Marimuthu's case (supra)** and also by the judgment in W.P.(C) No.31522 of 2003, a copy of which was actually placed before the Municipality by the petitioner. Even though it was very seriously W.P.C.No.27619/07 - 11- urged by the landlord that the power of attorney relied on by the signatory to the writ petition is not a genuine one and that the writ petitioner tenant Sri.Satheesh, who is admittedly entitled to retain possession of the premises until he is evicted there from in accordance with the provisions of Act 12/1965, will not be prepared to own up the writ petition or to support the endeavour of the signatory of the writ petition to do business in his name, Exts. P13 and P13(a) would show that Sri.Thomas Joseph, signatory to the writ petition continues to be the duly constituted agent of Sri. Satheesh. 10. Under these circumstances, I am inclined to quash Ext.P4 and direct the Municipality to consider the application submitted by the petitioner for renewal of licence without insisting on production of any consent from the landlord. The above direction, however, will not be unconditional. Obviously the rent at the rate of Rs.800/- per day is in arrears since March 2006 and even if it is assumed that the petitioner is not to blame fully for non-payment of rent for the period subsequent to 17-3-2007, I do not find any reason for not directing him to pay a substantial portion of the arrears of rent actually due during the period from March 2006 to March 2007 as a pre-condition for favourable consideration of his application for licence. The W.P.C.No.27619/07 - 12- petitioner is, therefore, directed to pay a sum of Rs.2 lakhs to the 2[nd] respondent in equal monthly instalments of Rs.one lakh each, the first instalment being payable on or before 15-2-2008 and the second instalment payable on or before 15-3-2008. After paying the first instalment, the petitioner shall produce the receipt for the same along with a copy of this judgment before the first respondent who will thereupon consider the application for licence/renewal filed by the petitioner and pass orders on the same in the light of the observations in this judgment without insisting on production of consent from the landlord. The Writ Petition is allowed as above. No costs. ## **PIUS C. KURIAKOSE,JUDGE** ## **srd/ks.**