Pathumma Palakkeel and others v. The Corporation of Kannur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 19TH DAY OF NOVEMBER 2019 / 28TH KARTHIKA, 1941** **WP(C).No.27517 OF 2019(L)** ## **PETITIONER/S:** |**1**|**PATHUMMA PALAKKEEL**| |---|---| ||**AGED 75 YEARS**| ||**W/O.LATE KHADER, RESIDING AT PUTHIYAPURAYIL,**| ||**FATHIMA MANZIL, KANNOTHUMCHAL ROAD,**| ||**THANA.P.O., KANNUR DISTRICT.**| |**2**|**SHEREEFA PALAKKEEL**| ||**AGED 50 YEARS**| ||**D/O.LATE KHADER, RESIDING AT DO.**| |**3**|**SALEEM PALAKEEL**| ||**AGED 44 YEARS**| ||**S/O.LATE KHADER, RESIDING AT DO.**| |**4**|**MUHAMMED SAMEER PALAKKEEL**| ||**AGED 40 YEARS**| ||**S/O.LATE KHADER, RESIDING AT DO.**| |**5**|**SHAREEFA TRAVEL SERVICE,**| ||**BUILDING NOS XLIX/2077 AND 2078, NEAR CALTEX**| ||**JUNCTION, KANNUR DISTRICT, REPRESENTED BY ITS**| ||**MANAGING PARTNER SALIM PALAKKEEL,**| ||**PUTHIYAPURAYIL, FATHIMA MANZIL, KANNOTHUMCHAL**| ||**ROAD, THANA.P.O., KANNUR DISTRICT.**| **BY ADVS. SRI.K.R.AVINASH (KUNNATH) SRI.ABDUL RAOOF PALLIPATH** ## **RESPONDENT/S:** WP(C).No.27517 OF 2019(L) ..2.. - **1 THE CORPORATION OF KANNUR, REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, KANNUR-670001.** - **2 LATHISH KUMAR.M.C., S/O.LATE KUNHAMBU, SAJINI NIAS, THALASSERY ROAD, KANNUR-670002.** - **3 SAJINI.M.C., W/O.ASHOK SHEKHAR, DEVAGURU, CHETTIYARKULAM.P.O., KANNUR-670001.** - **4 NAMITH VIJAYAN, S/O.LATE T.C.VIJAYAN, NAMRATHA, MUZHATHADAM, P.,O.CIVIL STATION, KANNUR-670002.** - **5 NIMISHA VIJAYAN, D/O.LATE T.C.VIJAYAN, NAMRATHA, MUZHATHADAM, P.,O.CIVIL STATION, KANNUR-670002.** - **6 RAMALAKSHMI, W/O.NARAYANAN, THAYAMBALLI HOUSE, MUZHATHADAM, P.,O.CIVIL STATION, KANNUR-670002.** **R1 BY ADV. SRI.K.K.CHANDRAN PILLAI (SR.) R1 BY ADV. SMT.S.AMBILY R1 BY ADV. SMT.NAMITHA NAMBIAR R1 BY ADV. SRI.SAJI THOMAS R1 BY ADV. SHRI.MICKY THOMAS** ## **OTHER PRESENT:** ## **GP K.J.MANURAJ** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.27517 OF 2019(L) **==> picture [17 x 8] intentionally omitted <==** ## **JUDGMENT** ## **Dated this the 19th day of November 2019** The petitioners have approached this Court impugning Ext.P16 proceedings of the Secretary of Kannur Municipal Corporation, as per which, their application for Trade Licence, to run a travel agency, has been rejected solely on the ground that they have not obtained the consent from the landlords, namely, respondents 2 to 6 herein. 2. The petitioners say that tenancy of the shop room was originally in the name of late T.P.Khader and that consequent to his death, petitioners 1 to 4, who are his legal heirs, have constituted themselves into a partnership firm, namely the 5[th] petitioner herein; and that when the Corporation had refused to grant them licence on an earlier occasion, they had approached this Court by filing W.P. (C)No.10156 of 2019, which had been disposed of through Ext.P14 judgment, wherein, the Corporation was directed to consider the Firm's application for Trade Licence on the WP(C).No.27517 OF 2019(L) **==> picture [18 x 8] intentionally omitted <==** strength of all necessary documents. 3. The petitioners say that even though they had, thereafter, produced all the necessary documents before the Secretary of the Corporation, he refused to allow their application for Trade Licence and rejected it through Ext.P16, holding that in the absence of consent from the landlords, same cannot be considered. The petitioners, therefore, pray that Ext.P16 be set aside, since they are the legal heirs of late T.P. Khader, who was concededly the tenant of the shop room and that upon his death, such rights automatically devolved upon them. 4. Smt.S.Ambily, learned Standing Counsel for the Corporation, in reply submitted that Ext.P16 has been issued taking note of the fact that the application referred to in Ext.P14 judgment was made only by the Firm and not by the legal heirs of late Khader. She then says that even if all the allegations of the petitioners are found to be true, then they cannot be granted a Trade Licence without the consent of the landlords, since their application can only be construed to be for a fresh licence and not for renewal of an earlier one, since WP(C).No.27517 OF 2019(L) **==> picture [17 x 8] intentionally omitted <==** late T.P.Khader had not taken any licence in the past. 5. In response to the above, the learned counsel for the petitioner, Sri.Abdul Raoof P, submits that late T.P.Khader was running the business at a time when the requirement of licence was not mandatory under the applicable Rules and Regulations. He says, therefore, that the Corporation cannot now take a stand that the petitioners must take a fresh licence and that they cannot be allowed to continue to run the business without obtaining the consent from the landlords. He also says that, in any event of the matter, the landlords have never raised any objection against grant of Trade Licence to his clients and therefore, that the Corporation has unnecessarily issued Ext.P16 without any purpose. He thus prays that the said order be set aside and his clients' application be directed to be reconsidered at the earliest. 6. Even though notice from this Court has been validly served on respondents 2 to 6, they have chosen not to be present in person or to be represented through counsel; inferentially, guiding me to the impression that they have nothing to offer in answer to the various allegations in this WP(C).No.27517 OF 2019(L) **==> picture [18 x 8] intentionally omitted <==** writ petition. 7. When I consider the afore submissions, it becomes indubitable that at no point of time had the petitioners or their predecessors-in-interest taken a Trade Licence - be that for the reason that it was not required or otherwise - and therefore, it is obvious that their application will have to be considered as one for a fresh Trade Licence. Going by the various judgments of this Court, the tenants will have to establish their rights over the shop room through cogent evidence and materials and I cannot, therefore, find the stand of the Municipality to that effect to be untenable. However, the question as to whether consent of the landlord is required or otherwise will have to be decided by them after hearing both petitioners as well as respondents 2 to 6 and if, as stated by the petitioners, the landlords have no objection, then certainly a Trade Licence can be issued even without a formal consent being obtained by them, going by the judgment of the Honourable Supreme Court in **Sudhakaran v. Corporation of Trivandrum and Another** [(2016) 14 SCC 263] Resultantly, I order this writ petition and set aside WP(C).No.27517 OF 2019(L) **==> picture [17 x 8] intentionally omitted <==** Ext.P16; and consequentially, direct the Secretary of the Corporation to hear the petitioners as well as respondents 2 to 6 and take a final decision with respect to the application for Trade Licence as sought for by the petitioners, adverting to the afore cited judgment of the Hon'ble Supreme Court. The Secretary shall issue necessary orders on the application of the petitioners, as expeditiously as is possible, but not later than one month from the date of receipt of a copy of this judgment. Needless to say, since the petitioners assert that they have been conducting the business for the last several years, I deem it appropriate that they be allowed to do so during interregnum when the afore exercise is completed; but that their continuance, thereafter, will depend upon the final decision to be taken by the Secretary in terms of this judgment. Sd/- **DEVAN RAMACHANDRAN** ## **JUDGE** kkj WP(C).No.27517 OF 2019(L) ..8.. ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LEASE DEED DATED 28.7.1982. EXHIBIT P2 TRUE COPY OF THE PARTNERSHIP DEED. EXHIBIT P3 TRUE COPY OF THE LEGAL HEIRSHIP CERTIFICATE.** **EXHIBIT P4 TRUE COPY OF THE TAX RECEIPT DATED 1.2.2019 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P5 TRUE COPY OF THE REGISTRATION CERTIFICATE. EXHIBIT P6 TRUE COPY OF THE NOTICE DATED 11.1.2019 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P7 TRUE COPY OF THE NOTICE DATED 5.2.2019 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P8 TRUE COPY OF THE EXPLANATION SUBMITTED BY THE 3RD PETITIONER. EXHIBIT P9 TRUE COPY OF THE APPLICATION FOR LICENSE. EXHIBIT P10 TRUE COPY OF THE COVERING LETTER DATED 21.3.2018. EXHIBIT P11 TRUE COPY OF THE NOTICE DATED 27.3.2019 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P12 TRUE COPY OF THE COVERING LETTER DATED 17.9.2019.** WP(C).No.27517 OF 2019(L) **==> picture [18 x 8] intentionally omitted <==** **EXHIBIT P13 TRUE COPY OF THE STATEMENT OF ACCOUNT SHOWING WITHDRAWAL OF RENT.** **EXHIBIT P14 TRUE COPY OF THE JUDGMENT DATED 20.5.19 IN WPC.10156/19 OF THIS HON'BLE COURT.** **EXHIBIT P15 TRUE COPY OF THE JUDGMENT IN WA.NO.1511/19 OF THIS HON'BLE COURT DATED 3.7.2019.** **EXHIBIT P16 TRUE COPY OF THE ORDER NO.H2-12117/19 DATED 31.8.2019 ISSUED BY THE 1ST RESPONDENT.**