Narayanankutty alias Haridas v. Thiruvilwamala Grama Panchayath and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **FRIDAY, THE 16TH JULY 2010 / 25TH ASHADHA 1932** **WP(C).No. 14261 of 2010(G)** **---------------------------------------** **PETITIONER:** - **-------------------** **NARAYANANKUTTY ALIAS HARIDAS, S/O.KRISHNANKUTTY GUPTAN, PATTIPARAMBU, KOOTTUPATHA, THIRUVILVAMALA, THRISSUR DISTRICT, PIN: 680 588.** **BY ADVS. SRI.G.HARIHARAN, SRI.PRAVEEN.H.** **RESPONDENTS:** **------------------------** **1. THIRUVILWAMALA GRAMA PANCHAYATH, THIRUVILWAMALA, THRISSUR DISTRICT, PIN: 680 588, REPRESENTED BY ITS SECRETARY,** **2. THE SECRETARY, THIRUVILWAMALA GRAMA PANCHAYATH, THRISSUR DISTRICT PIN: 680 588,** **3. K.R.MOHANAN, S/O.KUTTIRAMAN EZHUTHASSAN, KOTTATTUKULAMBIL, THIRUVILWAMALA, PAZHAYANNUR, THRISSUR PIN: 680 588.** **4. K.MEENAKSHIKUTTY, SECRETARY, THIRUVILWAMALA GRAMA PANCHAYATH, THRISSUR DISTRICT PIN: 680 588.** **R1, R2 BY ADVS. SRI.BINOY VASUDEVAN, SMT.P.G.BABITHA, R3 BY ADV. SRI.A.AHZAR.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/07/2010, THE COURT ON 16/07/2010 DELIVERED THE FOLLOWING:** **W.P.(C). NO.14261/2010-G:** **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXT.P.1: COPY OF THE RENT AGREEMENT EXECUTED BY THE PETITIONER IN FAVOUR OF THE R.3. ON 12/08/1999.** ## **EXT.P.2: COPY OF THE LICENCE ISSUED BY THE THIRUVILWAMALA GRAMA PANCHAYATH ON 24/04/2000 FOR THE PERIOD 2000-2001.** **EXT.P.3: COPY OF THE ORDER DTD. 17/08/2007 ISSUED BY THE 1ST AND 2ND RESPONDENTS.** **EXT.P.4: COPY OF THE ORDER PASSED BY THE COURT OF TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM MADE ON 18/01/2008 IN APPEAL NO. 410/2007.** **EXT.P.5: COPY OF THE COMMUNICATION DT.D 28/02/2009 SENT BY THE PETITIONER BEFORE THE R.2.** **EXT.P.6: COPY OF THE NOTICE DT.D 12/03/2010 ISSUED BY THE R.2. AGAINST THE PETITIONER.** **EXT.P.7: COPY OF THE REPLY DTD. 18/03/2010 SUBMITTED BY THE PETITIONER AGAINST EXT.P.6 SHOW CAUSE NOTICE.** **EXT.P.8: COPY OF THE SANITARY CERTIFICATE DTD. 11/03/2008 ISSUED BY THE HEALTH INSPECTOR, PRIMARY HEALTH CENTRE, KUTHAMPILLY IN FAVOUR OF THE PETITIONER.** **EXT.P.9: COPY OF THE JUDGMENT MADE IN W.P.(C).NO.9573/2010 DTD. 22/03/2010.** **EXT.P.10: COPY OF THE APPLICATION FOR RENEWAL OF LICENCE FILED BY THE PETITIONER FOR THE PERIOD 2010-2011.** **EXT.P.11: COPY OF THE NOTICE OF HEARING DTD. 31/03/2010 ISSUED BY THE R.1.** ## **EXT.P.12: COPY OF THE ACKNOWLEDGEMENT DTD. 05/04/2010 ISSUED BY THE R.1.** **EXT.P.13: COPY OF THE COMPLAINT FILED BY THE PETITIONER'S ADVOCATE SRI. MAHESWARAN ADDRESSED TO THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS.** ## **EXT.P.14: COPY OF THE ORDER NO. A5-1/2010 DTD. 23/04/2010 PASSED BY THE R.2.** **EXT.P.15: COPY OF THE MEMORANDUM OF APPEAL FILED BY THE PETITIONER BEFORE THE ADMINISTRATIVE COMMITTEE OF THE THIRUVILWAMALA GRAMA PANCHAYATH UNDER SECTION 276 OF THE KPR ACT.** **EXT.P.16: COPY OF THE POSTAL RECEIPT EVIDENCING DESPATCH OF EXT.P.15 APPEAL.** **EXT.P.17: COPY OF THE NEWS ITEM EVIDENCING FORCIBLE CLOSURE OF THE PETITIONER'S SHOP BY THE R.1. PUBLISHED IN DESHABHIMANI DAILY DTD. 09/05/2010.** **EXT.P.18: COPY OF THE COMMUNICATION ISSUED BY SRI. A.R. SHANMUGHAN, MEMBER OF WARD NO. 16 AND SMT. BINDHU T.G. MEMBER OF WARD NO. 12 OF THE THIRUVILWAMALA GRAMA PANCHAYATH EXPRESSING THEIR DISSENT AGAINST THE ORDER PASSED IN EXT.P.15 APPEAL.** **W.P.(C). NO.14261/2010-G:** ## **RESPONDENTS' EXHIBITS:** **EXT.R1.A: COPY OF THE NOTICE ISSUED BY THE PANCHAYATH WHICH CONTAINS THE ENDORSEMENT THAT THE PETITIONER HAD ACCEPTED THE NOTICE ON 31/03/2010.** **EXT.R1.B: COPY OF THE ENDORSEMENT MADE BY THE DEPONENT IN THE LETTER OF ADJOURNMENT.** **EXT.R1.C: COPY OF THE COMPLAINT SUBMITTED BY THE DEPONENT BEFORE THE SUB INSPECTOR OF POLICE, PAZHAYANNUR POLICE STATION.** **EXT.R1.D: COPY OF THE REQUEST MADE BY THE DEPONENT TO THE C.I. OF POLICE.** **EXT.R1.E: COPY OF THE LETTER DTD. 07/05/2010 AND RECEIVED BY THE DEPONENT.** **EXT.R1.F: COPY OF THE JUDGMENT IN O.S. NO. 450/2007 PASSED BY THE MUNSIFF'S COURT, WADAKKANCHERRY.** **EXT.R1.G: COPY OF THE AFFIDAVIT SUBMITTED BY K.P. UMASANKAR, PRESIDENT, THIRUVILWAMALA GRAMA PANCHAYAT.** **EXT.R1.H: COPY OF THE AFFIDAVIT SUBMITTED BY KUMARAN, MEMBER, WARD NO.14.** **EXT.R1.I: COPY OF THE AFFIDAVIT SUBMITTED BY V.C. BINDU, MEMBER, WARD NO.6.** **EXT.R1.J: COPY OF THE AFFIDAVIT SUBMITTED BY R. KRISHNA RAJU, MEMBER, WARD NO.2.** **EXT.R1.K: COPY OF THE AFFIDAVIT SUBMITTED BY N. RAMKUMAR, MEMBER, WARD NO.4.** **EXT.R1.L: COPY OF THE AFFIDAVIT SUBMITTED BY A. VALSALA, MEMBER, WARD NO.11.** **EXT.R1.M: COPY OF THE AFFIDAVIT SUBMITTED BY K.M. VELAYUDHAN, MEMBER, WARD NO.1.** **EXT.R1.N: COPY OF THE AFFIDAVIT SUBMITTED BY N. ANDREWS, MEMBER, WARD NO.7.** **EXT.R1.O: COPY OF THE AFFIDAVIT SUBMITTED BY SOMASUNDARAN, MEMBER, WARD NO.5.** **EXT.R1.P: COPY OF THE AFFIDAVIT SUBMITTED BY N. GEETHA, MEMBER, WARD NO.3. EXT.R1.Q: COPY OF THE AFFIDAVIT SUBMITTED BY GOPIDAS, MEMBER, WARD NO.9. EXT.R1.R: COPY OF THE AFFIDAVIT SUBMITTED BY M.R. MANI, MEMBER, WARD NO.8. EXT.R3.A: COPY OF THE PROCEEDINGS ISSUED BY THE PUBLIC HEALTH INSPECTOR.** **//TRUE COPY//** **P.S. TO JUDGE.** **Prv.** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No. 14261 of 2010-G** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 16th day of July, 2010.** ## **JUDGMENT** Ext.P14 order passed by the Secretary of the Panchayat rejecting an application for renewal of licence for conducting the business run by the petitioner in the name and style of 'Haridas Sweet Palace' in Thiruvilwamala, is under challenge in this writ petition. Pending the writ petition, an appeal was filed by the petitioner before the Panchayat which also stands rejected by the Panchayat. 2. Shortly stated, the facts pleaded by the petitioner are the following:- The petitioner is the tenant of a building bearing No.T.P.8/383 which was taken on rent on 12.8.1999. Ext.P1 is the copy of the rental agreement. The Panchayat granted licence for the year 2000-2001, a copy of which is produced as Ext.P2. It is the case of the petitioner that in the year 2007 there was heavy pressure from the landlord to vacate the building and the petitioner was being harassed by the Police also, which led to the petitioner in filing W.P.(C) No.9826/2007. It is pointed out that later, by the influence of the Secretary of the Panchayat, the third respondent sought to forcibly close the business which compelled the wpc 14261/2010 2 petitioner to file W.P.(C) No.16836/2007 wherein this Court directed the Panchayat to hear the petitioner and take a decision. Finally, Ext.P3 order dated 17.8.2007 was issued directing the petitioner to close down the shop within two days. The said order was challenged in W.P.(C) No.25235/2007 and this Court directed the Panchayat to hear the petitioner and take a decision. Again, they confirmed the earlier order which was taken in appeal before the Tribunal for Local Self Government Institutions, which was allowed in favour of the petitioner by Ext.P4. The Tribunal held that the petitioner will be deemed to have been issued licence, as the application for licence was never rejected. It is the case of the petitioner that in the later years also he was submitting the renewal applications which were never rejected and therefore he is deemed to have been issued a licence under Section 236(3) of the Kerala Panchayat Raj Act. 3. The present proceedings started by the issuance of Ext.P6 notice dated 12.3.2010 wherein he was directed to stop the business and to apply for a fresh licence. The reason stated is that he is conducting the business without getting a licence. It is also mentioned that the petitioner has encroached upon a portion of the puramboke land also. The petitioner denied these allegations by filing Ext.P7 reply and later he approached this Court by filing W.P.(C) No.9573/2010 which was disposed of by Ext.P9 wpc 14261/2010 3 judgment, directing the first respondent to consider and take a decision on Ext.P6 herein in the light of the explanation offered. It is the case of the petitioner that he had also sent an application for renewal of licence as per Ext.P10. A hearing was conducted by the Secretary and finally a decision was taken against the petitioner, as per Ext.P14. 4. Mainly, the reasons stated in Ext.P14 are that the petitioner has not produced the consent of the landlord and as the petitioner was not having any licence for certain years, the application can only be treated as a new one and not an application for renewal and therefore the application for renewal of the licence which does not comply with the conditions, cannot be acted upon. This was under challenge in appeal by the petitioner before the Committee of the Panchayat, but in the meanwhile with Police help, the shop was closed by the Secretary. 5. The Secretary of the Panchayat has filed a counter affidavit and the petitioner has filed a reply affidavit. The third respondent landlord has also filed a counter affidavit. The communication showing the rejection of the appeal by the Committee of the Panchayat has been produced in the pleadings. 6. Learned counsel for the petitioner raised the following contentions. The petitioner was having licence from 2000-2001. The wpc 14261/2010 4 landlord has already filed an application for eviction under the Rent Control Act. Therefore, the landlord has not given any consent to renew the licence and the same is an impossibility and the Secretary is not right in insisting for a written consent for renewal of the licence. It is further pointed out that the petitioner was having deemed licence, going by Ext.P4 order passed by the Tribunal for Local Self Government Institutions. The same situation continued in respect of the succeeding years, viz. 2008-2009 and 20092010. In both these years the applications for licence have not been rejected by the Panchayat. It is submitted that the requirement under law is only to produce a consent, if at all, of the landlord at the time of initial application for the first year and for renewal it need not be insisted. It is also submitted that the Secretary of the Panchayat is acting in tandem with the third respondent and various proceedings from 2007 onwards will show that the Secretary of the Panchayat along with the landlord, were trying to stop the business run by the petitioner. Immediately after the order was passed, with the Police help the shop has been closed down. 7. Learned counsel for the Panchayat submitted that Ext.P1 is not signed by the landlord and it cannot be considered as a rent deed and therefore the petitioner is bound to produce a proper copy of the rent deed and consent of the landlord. It is submitted that the application for this year wpc 14261/2010 5 was defective for these reasons and hence that was returned. In 2008-2009 and 2009-2010 the applications were returned as defective and the benefit of the deeming provision is therefore not applicable in respect of the licence for these years. The application submitted in 2009-2010 was not accompanied by the rent deed as contemplated under the Kerala Panchayat Raj Act (Issue of licence to Dangerous and Offensive Trades and Factories) Rules 1996. Reference is made about the judgment in O.S. No.450/2007 filed by the petitioner seeking for injunction against eviction sought against the Panchayat which was dismissed. 8. The plea raised by the landlord is that the room was given on rent, but no separate rent deeds were executed. The Landlord has filed an application under the Rent Control Act before the Munsiff's Court, Vadakkancherry, seeking eviction. 9. The crucial question is whether the non production of a written consent by the landlord or the rent deed for the current year will disentitle him from getting the licence. Reliance is placed on the decision of a Division Bench of this Court in **Marimuthu v. Director General of Police** (1999 (3) KLT 662) wherein it was held that the local authority cannot insist upon the tenant holding-over, to produce the written consent from the landlord for the purpose of the issuance of licence for conducting business. wpc 14261/2010 6 10. That the petitioner had been doing business from the year 20002001 cannot be disputed and Ext.P2 is the copy of the licence issued for the year 2000-2001. The order of the Tribunal, Ext.P4 relates to the year 20072008 wherein also the Tribunal held that as the application was not rejected, the petitioner is entitled to get the benefit of Section 236(3) of the Act for deemed licence. Learned Standing counsel for the Panchayat submitted that against column 6 of Ext.P10 which require production of a rent deed, the petitioner has showed it as “deemed licence”. It is therefore contended that in the absence of such a rent deed or consent from the landlord, the Panchayat is not bound to renew the licence. It is submitted that Ext.P1 being one signed by the petitioner alone, it cannot be treated as a valid one and therefore a fresh document showing the consent of the landlord is necessary and the application can only be treated as an application for fresh licence and not for renewal. 11. The legal position has been laid down by the Division Bench in **Marimuthu's case** (1999 (3) KLT 662). That was also a case where the landlord had filed eviction petition under the Kerala Buildings (Lease & Rent Control) Act. It was held that the tenant, in such circumstances, is a statutory tenant and is in lawful possession of the premises. The landlord is not entitled to withhold his consent. It was held that in such circumstances, wpc 14261/2010 7 the production of a written consent cannot be insisted for issuing licence. The dictum was laid down in paragraphs 14 and 17 thus: “The statement made in the eviction petition filed by the landlord would clearly show that the first petitioner Marimuthu is in actual possession of the premises in question and that she was permitted to conduct a textiles shop there for a period of five years and further that the premises in question was rented out to the first petitioner under the circumstances mentioned above. The above facts are not in dispute in these proceedings. Even after the expiry of the period of five years on 30.6.1998, the tenant is continuing in possession. Though it is contended by the 4[th] respondent landlord that the continuance of the tenant in the premises in question after the expiry of the term is unlawful, such a contention cannot be countenanced. The tenant is now continuing in possession of the premises and is now contesting the eviction petition filed by the landlord. In view of the facts stated above, the possession of the tenant cannot be treated as unlawful. She is a tenant holding over. A statutory tenant under the Kerala Buildings (Lease & Rent Control) Act can be evicted only as per the provisions of the said Act, on the grounds enumerated therein. Since the possession of the tenant is lawful, the landlord is not entitled to withhold his consent for the conduct of the business for which the premises were given on rent. In the instant case, we are satisfied that the landlord is purposefully and with malafide intention withholding consent inspite of the direction from this Court. Under such circumstances, the Corporation also cannot insist upon wpc 14261/2010 8 production of written consent from the landlord for the purpose of issuance of licence for the conduct of business in the premises in question. For carrying on business in readymade dresses a licence issued under S.492 of the Kerala Municipality Act is necessary. As on date, the petitioner is not having any licence to carry on such business. A person in occupation can be allowed to carry on a trade or business which requires a licence, only after obtaining such licence.” 12. In this case the landlord in the counter affidavit, has stated that there was no rent deed as such. But the tenancy arrangement is not disputed and the landlord has sought for eviction of the tenant from the premises. It cannot therefore be stated that the petitioner is not in lawful occupation of the premises. He is a statutory tenant entitled for possession until evicted under due process of law. 13. It is therefore clear from the facts that as the landlord has sought for eviction, the Panchayat cannot insist for a fresh consent from the landlord which is an impossibility as far as the petitioner to comply with. In the counter affidavit filed by the landlord,he has not consented for granting renewal of licence to the petitioner and has taken a stand against the continuance of the business. This is an important factor to be considered. 14. In that view of the matter, the insistence that the petitioner's wpc 14261/2010 9 application Ext.P10 is defective for non production of a proper copy of the rent deed signed by both parties or a written consent of the landlord, cannot be justified. The stand taken by the Panchayat is clearly against the dictum laid down by this Court in **Marimuthu's case** (1999 (3) KLT 662). Therefore, even without producing a consent of the landlord, the petitioner is entitled for grant of renewal of licence. 15. The other reason stated against the petitioner is regarding the allegation of trespass of the nearby land. The petitioner contends that he is not the landlord of the building and he cannot be made answerable for any such allegations. Further, an action if any for occupation of a puramboke cannot be a reason for rejecting the application for renewal of licence. The reason stated by the Panchayat that the petitioner was not having any licence at all and therefore the business has to be stopped, cannot be accepted. The dispute, if any, with regard to the licence for the years 2008-2009 and 2009-2010 are not relevant now as the petitioner was allowed to continue business all these years and there was no stoppage of the business also for want of any licence. The rent control proceedings or any allegation of trespass in puramboke land by the landlord or the tenant cannot be a ground for rejection of the application for licence. 16. Learned counsel for the Panchayat relied upon the decision of a wpc 14261/2010 10 learned Single Judge of this Court in **Bridgeway Engineering Co.(P) Ltd. v. Southern Railway** (2000 (2) KLT 861) to contend that the past performance record of the petitioner is relevant to deny the licence. That was a case of acceptance of tender and the said principle cannot therefore obviously apply here. Herein, the petitioner was initially granted licence by the Panchayat and he was continuing the business also thereafter. 17. Therefore, the reasons stated in Ext.P14 that the petitioner is not entitled for grant of licence for want of production of consent or permission from the landlord, cannot be justified. The return of the application for licence is for want of production of such documents. Learned counsel for the petitioner submitted that he is prepared to remit any amount towards deficit fee as directed by the Panchayat. 18. For all these reasons, the writ petition is allowed. Ext.P14 and the decision taken by the Panchayat Committee in the appeal filed by the petitioner, which is only a dependent order, are therefore quashed. There will be a direction to the Secretary of the Panchayat to receive the application for renewal of licence from the petitioner without insisting for any consent or rent deed from the landlord and grant renewal on fulfilling the conditions stipulated for payment of required fees, within a period of two weeks from the date of production of a copy of this judgment. On wpc 14261/2010 11 grant of licence, the petitioner will be entitled to open the shop and continue the business . No costs. **(T.R. Ramachandran Nair, Judge.)** ## **kav/**