MAVIS DAVIS vs THRISSUR MUNICIPAL CORPORATION; BHARAT PETROLEUM CORPORATION LTD. & ORS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY, THE 29[TH] DAY OF SEPTEMBER 2022 / 7TH ASWINA, 1944** **WP(C) NO. 27197 OF 2022** ## **PETITIONER:** **MAVIS DAVIS AGED 55 YEARS S/O.LATE M.I.DAVIS, MANAGING PARTNER, OLLUR FUELS, OLLUR P.O., THRISSUR DISTRICT - 680 306.** **BY ADVS. P.B.KRISHNAN P.B.SUBRAMANYAN B.ANUSREE MANU VYASAN PETER MEERA P.** ## **RESPONDENT/S:** - **1 THRISSUR MUNICIPAL CORPORATION REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, M.O.ROAD, THRISSUR - 680 001.** - **2 THE SECRETARY THRISSUR MUNICIPAL CORPORATION, CORPORATION OFFICE, M.O.ROAD, THRISSUR - 680 001.** - **3 BHARAT PETROLEUM CORPORATION LTD., COCHIN REFINERY, MARADU P.O., ERNAKULAM - 682 304, REPRESENTED BY ITS GENERAL MANAGER.** **WP(C) NO.27197 OF 2022** **2** **4 THE TERRITORY MANAGER (RETAIL) BHARAT PETROLEUM CORPORATION LTD., ERNAKULAM RETAIL TERRITORY, SEAPORT - AIRPORT ROAD, IRIMPANAM P.O., ERNAKULAM - 682 309.** **BY ADVS. SRI. SANTHOSH P.PODUVAL, SC, THRISSUR CORPORATION SRI.K.I.MAYANKUTTY MATHER SMT.S.PARVATHI SMT.UTHARA ASOKAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO.27197 OF 2022** **3** ## **JUDGMENT** Dated this the 29[th] day of September, 2022 The petitioner is aggrieved by the refusal on the part of respondents 1 and 2 to issue Trade Licence for starting a Fuel Station in Ollur, Thrissur District. 2. It is discernible from the pleadings that a Retail Petroleum Outlet/Fuel Station was functioning in the land in question. One Mr.Kuttappan K.I was the franchisee of the said Fuel Station. Kuttappan was issued with a Trade Licence by the Municipal Authorities. 3. Later, the 3[rd] respondent-Petroleum Corporation entered into an agreement with a Partnership Firm, in which the petitioner is the Managing Partner. The petitioner is a coowner of the land where the Fuel Station is functioning. When the petitioner applied for D&O Licence to respondents 1 and 2, the petitioner was required to produce the consent of all the remaining co-owners of the property. It is aggrieved by the **WP(C) NO.27197 OF 2022** **4** insistence on consent from all co-owners that the petitioner is before this Court. 4. The petitioner states that a co-owner of a property should be treated as owner of the property for all practical purposes, till the property is partitioned in accordance with law. Respondents 1 and 2 therefore are not justified in insisting for consent from all co-owners of the property. 5. Standing Counsel for respondents 1 and 2 entered appearance and opposed the writ petition. The Standing Counsel denied all the allegations made by the petitioner in the writ petition. It was pointed out that there are about 11 claimants for the land in question. All of them are co-owners. Therefore, respondents 1 and 2 insisted that no objection from all the co-owners be produced for considering the petitioner's application for Trade Licence. In the absence of such consent, if any of the co-owners approached the Civil Court, the Corporation Authorities will be dragged to unnecessary civil litigation. **WP(C) NO.27197 OF 2022** **5** 6. Standing Counsel representing the 3[rd] respondentPetroleum Corporation submitted that they have legally entered into a franchise agreement with a partnership, in which the petitioner is a partner. Since the petitioner is a coowner of the land in question, respondents 1 and 2 are compellable to consider the application for Trade Licence without insisting to obtain consent from all the co-owners, contended the counsel for the 3[rd] respondent. 7. I have heard the learned counsel for the petitioner and the respective learned Standing Counsel representing respondents 1 to 4. 8. The petitioner is the Managing Partner of a Partnership Firm, who has entered into an agreement with the 3[rd] respondent-Petroleum Corporation for running the dealership in question. The Fuel Station is an existing functional Fuel Station. The Fuel Station was functioning in the land of which the petitioner is a co-owner. Now, a Partnership Firm in which the petitioner himself is the **WP(C) NO.27197 OF 2022** **6** Managing Partner proposes to run the Fuel Station. 9. The partnership of the petitioner is not in a position to start the functioning of the Fuel Station in view of the nonissuance of Trade Licence by respondents 1 and 2. Respondents 1 and 2, on the other hand, would urge that since the land belongs to more than one person, the consent from all the co-owners of the land is required. 10. This Court has dealt with a similar issue in _**Jayaprakash v. Kozhikode Corporation** [2021 (3) KLT 127]._ This Court held as follows:- A co-owner of a property owns every part of the composite property along with others, and it cannot be said that he is only a part-owner or factional owner of the property. In other words, a co-owner of a property has to be treated as the owner of the property for all practical purposes until the property is partitioned among the co-owners. Placing reliance on a passage from Salmond on Jurisprudence (13[th] Edition), the Apex Court has clarified the said legal position in _Sri.Ram Pasricha v. Jagannath and others_ [1976 KLT Online 1093 (SC) = (1976) 4 SCC 184]. ## 11. Therefore, the petitioner being a co-owner of the property, should be treated as owner of every part of the **WP(C) NO.27197 OF 2022** **7** composite property along with others. If that be so, there is no justification for insisting for consent from all the co-owners of the property. 12. The Standing Counsel for respondents 1 and 2 pointed out that _**Jayaprakash v. Kozhikode Corporation**_ (supra) was a case where one of the co-owners granted consent to the tenant which was found to be sufficient. In the petitioner's case, the agreement is by a Partnership Firm. The Partnership Firm is not a co-owner of the property. In such circumstances, the law laid down by this Court in _**Jayaprakash v. Kozhikode Corporation**_ (supra) cannot be made applicable. 13. The argument is not appealing. This Court has categorically held that a co-owner of the property owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. If that be so, a consent from the petitioner or any one of the co-owners of the property would suffice to **WP(C) NO.27197 OF 2022** **8** satisfy the requirements. In the facts of the case, the writ petition is disposed of directing respondents 1 and 2 to consider the application for Trade Licence submitted by the petitioner's Partnership Firm, without insisting for consent from all co-owners. **Sd/-** **N.NAGARESH JUDGE** spk **WP(C) NO.27197 OF 2022** ## **9** ## **APPENDIX OF WP(C) 27197/2022** **PETITIONER EXHIBITS Exhibit P1 DATED 6/2/2021, TRUE COPY OF THE TAX RECEIPT ISSUED BY THE THRISSUR CORPORATION IN THE NAME OF BPCL. Exhibit P1A DATED 25/4/2022, TRUE COPY OF THE TAX RECEIPT ISSUED BY THE THRISSUR CORPORATION. Exhibit P2 DATED 12/06/2021, TRUE COPY OF THE DISPENSING PUMP AND SELLING LICENCE AGREEMENT. Exhibit P3 DATED 25/3/2022, TRUE COPY OF THE LETTER ISSUED BY THE BPCL. Exhibit P4 DATED 1/7/2022, TRUE COPY OF THE LETTER ISSUED BY THE THRISSUR MUNICIPAL CORPORATION.** ## **RESPONDENT'S/S EXHIBITS : NIL**