Preetha and Prajisha v. M.V. Sivasankaran and Pattambi Grama Panchayat (W.A. No. 1347 of 2012)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN THURSDAY, THE 21ST DAY OF FEBRUARY 2013/2ND PHALGUNA 1934 WA.No. 1347 of 2012 () IN WP(C).9881/2011 -----------------------------------------AGAINST THE ORDER/JUDGMENT IN WP(C).9881/2011 DATED 08-06-2012** ## **APPELLANT(S):** **-------------** - ***1. PREETHA, D/O. KUMARAN, IDIYATH HOUSE, HARMONY STREET, PATTAMBI, PALAKKAD DIST. 679 303** ***2. PRAJISH, D/O. KUMARAN, IDIYATH HOUSE, HARMONY STREET, PATTAMBI, PALAKKAD DIST. 679 303 (ADDRESS OF THE 1ST APPELLANT & NAME OF THE 2ND APPELLANT CORRECTED AS PER ORDER DT. 10.9.2012 IN I.A. NO. 699/2012)** **1. PREETHA DINESH, POTTEKKAT HOUSE, NEAR C.V. JUNCTION, PONNANI, MALAPPURAMDIST.** **2. PRASHEEJA.** **BY PREETHA & PRASHEEJA (PARTY-IN-PERSON)** **RESPONDENTS:** **--------------** ***1. M.V.SIVASANKARAN, SON OF VELU, AGED 55 YEARS, MELEVALAPPIL HOUSE, KUMARAPPANAL P.O., VARAVOOR, PALAKKAD DISTRICT 680 585** **(DISTRICT NAME OF THE 1ST RESPONDENT IS CORRECTED AS “THRISSUR” AS PER ORDER DT. 10.9.2012 IN I.A NO.699/2012)** **2. THE PATTAMBI GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY PATTAMBI, PALAKKAD 679 303** - ****3.DINESH S/O.KUMARAN, IDIYATH HOUSE, HARMONY STREET, PATTAMBI PALAKKAD 679 303** - **4.PRADEEP, S/O. KUMARAN, IDIYATH HOUSE, HARMONY STREET, PATTAMBI, PALAKKAD 679 303** - **(**RESPONDENTS 3 AND 4 DELETED FROM THE PARTY ARRAY AS PER ORDER DT 10.9.2012 IN I.A. NO. 700/2012)** ***** ADDITIONAL RESPONDENT IMPLEADED** **5. M.V. PADMAVATHY W/O. LATE J.KUMARAN SREENILAYAM, PATTAMBI, PALAKKAD DIST. (*** ADDL. R5 IMPLEADED AS PER ORDER DT 21.2.2013 I MI.A. 640/12) R1 BY ADV. SRI.SANTHEEP ANKARATH R5 BY ADV. SRI.P.JAYARAM R BY SRI.JOICE GEORGE** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.A. 1347/2012** **APPENDIX** ## **W.A 1347/2012** ## **APPELLANTS ANNEXURES:** - **ANNEXURE AI : TRUE COPY OF THE JUDGMENT IN W.P(c) NO.36291/2010** - **ANNEXURE A2 : TRUE COPY OF THE EVICTION DOCUMENT BY THE DECEASED LANDLORD WITH TRANSLATION** - **ANNEXURE A3 : TRUE COPY OF THE POSSESSION CERTIFICATE FROM PANCHAYAT WITH TRANSLATION** - **ANNEXURE A4 : TRUE COPY OF THE INVENTORY REPORT IN O,S 60/2011 PARTITION SUIT** - **ANNEXURE A5 : DANALAKSHMI BANK LEDGER FROM 1993 SHOWING THE CURRENT ECONOMIC CONDITION O F THE APPELLANTS FAMILY** - **ANNEXURE A6 : RELEVANT B 2943 POLICE PROTECTION PETITION FILED BY THE 2ND APPELLANT BY THE DIRECTION OF THE HON'BLE RDO OF THE OTTAPPALAM AND THE ORDER RELATED FROM THE AUTHORITY DIRECTING PATTAMBI C,I FOR THE POLICE ENQUIRY AND REPORT** - **ANNEXURE A7 : RELEVANT APPLICATION SUBMITTED BY THE 2ND APPELLANT TO THE 2ND RESPONDENT ENQUIRING WHETHER LICENCE HAD ISSUED TO THE 1ST RESPONDENT DT. ON 18.6.2012 AFTER THE JUDGMENT IN WPC 9881/11** - **ANNEXURE A8 : RELEVANT REPLY TO THE RELATED APPLICATION FROM 2ND RESPONDENT GVING INTIMATION THAT LICENSE HAD NOT ISSUED AND MAY PROVIDE LICENSE COPY AND INTIMATION IF LICENSE GET RENEWED DT 29.6.2012** - **ANNEXURE 9 : RELEVANT COUNTER SUBMITTED BY THE 1ST RESPONDENT IN THE INJUNCTION SUIT OS 149/12 BEFORE THE HON'BLE MAGISTRATE MUNCIFF COURT OF PATTAMBI, DT 5.11.2012 MISCLAIMING THE ILLEGAL POSSESSION OF ALL THE PROPERTIES OF DECEASED LANDLORD UPON THE JUDGMENT OF W.PC 9881/11 WITH TRANSLATION.** - **ANNEXURE A10 : RELEVANT ORDER BY HON'BLE SUBCOURT OF OTTAPALAM IN I.A781/11 RECEIVER PETITION FILED BY THE 1ST APPELLANT IN OS 60/11 PARTITION SUIT THAT WHICH DECLARED POSSESSION TO THE 54 LEGAL HEIRS OF THE DECEASED LANDLORD APPOINTING THE 5TH RESPONDENT AS PARTY RECEIVER INSISTING TO REPORT PROPER BUSINESS ACCOUNTS DT 7.7.2012** - **ANNEXURE A11 : RELEVANT APPLICATION SUBMKITTED BY THE APPELLANTS DATED 5.7.2012 TO THE 2ND RESPONDENT AFTER PRONOUNCEMENT OF THE JUDGMENT, REQUESTING TO CANCEL THE ILLEGAL LICENCE PROCURED BY THE RESPONDENT WITHOUT ALLOWING RENEWAL, CONSIDERING THE MUNCIPALITY ACT SECTION 492(3)** - **ANNEXURE A12 : CERTIFIED COPY OF THE LEASE DEED DT. 10.10.91 SIGNED AND ADMITTED TO THE DECEASED LANDLORD BY THE 1ST RESPONDENT IN 13056& 13057 STAMP PAPER** - **ANNEXURE A13 : CERTIFIED COPY OF ORIGINAL EVICTION CONTRACT DT 1.10.1992 SIGNED AND ADMITTED BY THE RESPONDENT TO THE DECEASED LANDLORD IN 472 AND 473 STAMP PAPER** - **ANNEXURE A14 : CERTIFIED COPY OF PATTAMBI PANCHAYAT POSSESSION CERTIFICATE DATED 29.6.2012** **W.A 1347/2012** ## **APPELLANTS ANNEXURES:** |**ANNEXURE A15**|**:**|**THE CERTIFIED COPY OF RECOVERY NOTICE DT 2.1.2009 SERVED TO**| |---|---|---| |||**THE 2ND APPELLANT FROM PATTAMBI SERVICE COOPERATIVE**| |||**BANK LTD NO. P 585**| |**ANNEXURE A16**|**:**|**CERTIFIED COPY OF THE AFFIDAVIT FILED BY THE 5TH**| |||**RESPONDENT IN OS 60/11 DT 25.8.2011**| |**ANNEXURE A17**|**:**|**THE CERTIFIED COPY OF THE SUB COURT ORDER IN THE RECEIVER**| |||**PETITION I.A. 781/11 OF OS 60/11**| |**ANNEXURE A 18**|**:**|**CERTIFIED COPY OF ORIGINAL REGISTERED LETTER SEND BY THE**| |||**RESPONDENT TO THE 1ST APPELLANT DT 15.2.2010**| |**ANNEXURE A 19**|**:**|**CERTIFIED COPY OF THE ORIGINAL SNDP DOCUMENT DT 10.11.2010**| |**ANNEXURE A 20**|**:**|**CERTIFIED COPY OF THE POLICE PROTECTION PETITION FINED BY**| |||**THE APPELLANT DT. 30.7.2012**| |**ANNEXURE A 21(a)**|**:**|**CERTIFIED COPY OF PANCHAYAT REPLY DT 27.12.2012**| |**ANNEXUREA 21(b)**|**:**|**TRUE COPY OF APPLICATION UNDER RTI ACT, SEND BY THE 1ST**| |||**APPELLANT TO 2ND RESPONDENT DT 26.11.2012**| |**ANNEXURE A 22**|**:**|**LICENSE APPLICATION SUBMITTED BY THE 1ST APPELLANT DT**| |||**11.1.2013**| |**ANNEXURE A 23**|**:**|**CERTIFIED COPY OF ORIGINAL DOCUMENT I.A. 2809/012 IN OS**| |||**60/11DT. 1.9.2012**| |**ANNEXURE A 24**|**:**|**TRUE COPY OF THE PETITION FILED BY THE 5TH RESPONDENT DT**| |||**2.2.2009**| ## **RESPONDENTS' ANNEXURES: NIL** **//TRUE COPY//** ## **P.A. TO JUDGE** **jma** ## **Manjula Chellur, C.J. & K.Vinod Chandran, J.** ------------------------------------------ ## **W.A No.1347 of 2012** -------------------------------------------Dated this, the 21[st] day of February, 2013 ## **J U D G M E N T** ## K. Vinod Chandran, J.: The short issue raised in the writ petition by the first respondent/petitioner was with respect to the renewal of licence for a business conducted by the writ petitioner in a building which originally belonged to one Kumaran, who is now deceased. The writ petition was filed since the first respondent Panchayat refused to grant the renewal on the ground that there was no consent from the legal heirs. The petitioner had contended that by virtue of the declaration of a Division Bench in **Marimuthu v.** **Director General of Police in (1999 (3) KLT 662]** ; the petitioner being a statutory tenant cannot be evicted merely for the reason of no consent from the legal heirs since renewal of license does not mandate such consent. The petitioner's contention was that if such a ruse is adopted, then, that would be over reaching the provisions of Kerala Buildings (Lease and Rent Control) Act, 1965 and could lead to eviction of a statutory Writ Appeal No. 1347/2012 2 tenant without resorting to the provisions of the said Act and on the grounds permitted by the said enactment. The learned single Judge on an overview of all the enactments and the facts of the case directed the first respondent Panchayat to consider Ext.P3 renewal application and dispose of the same on merits without insisting upon production of consent/No Objection from the landlord or from anybody claiming ownership or co-ownership of the building in question. 2. The writ appeal has been filed by two daughters of Kumaran contending that the license was issued fraudulently and that they are entitled to possession and enjoyment of the building in which the writ petitioner is said to be conducting a hotel business. Tenaciously; the scope of the litigation was sought to be expanded, by filing a number of documents in the writ appeal purportedly for substantiating the claim of the appellants to have a share in the properties of the deceased Kumaran. It has also been argued that a Will said to be executed by the deceased Kumaran is a fraudulent one and the matter is pending adjudication before the appropriate civil forum. Writ Appeal No. 1347/2012 3 3. On a reading of the impugned judgment, it is discernible that a partition suit is pending before the Sub Court, Ottapalam as O.S No. 60/2011 with respect to the properties belonging to the deceased Kumaran. The wife and children of deceased Kumaran are the parties in the said suit and they have not obviously reached upon an agreement as to how the partition is to be effected. Hence, at this point, it cannot be said that the appellants or any of the legal heirs of the deceased Kumaran has any absolute right to the property. They are all co-owners and they would definitely be entitled to initiate proceedings under the Rent Control Act for eviction of the tenant. The wife of Kumaran; the mother of the appellants also appear through counsel and disputes the tenancy of the petitioner. Though the functioning of the hotel is admitted the wife of Kumaran claims the petitioner is her manager. However, it may not be proper for this Court to enter into any findings with respect to the tenancy of the writ petitioner or the rights of the legal heirs of deceased Kumaran since the latter question is pending consideration in a Civil suit. Writ Appeal No. 1347/2012 4 4. The learned single Judge had also not entered into any of such controversies and has merely held that on the basis of the decision cited above and considering the settled position laid down, the licensee who has acquired the status of a statutory tenant cannot be denied of renewal of license merely because the landlord or any other person claiming under him refuses to grant the consent for such renewal. We also agree that the landlord or persons claiming under him cannot be permitted to circumvent the provisions of the Rent Control Act and effectively evict the tenant by refusing to grant a consent; after having originally leased out the building with consent. In the circumstances, we are of the opinion that the learned Single Judge's findings with respect to the renewal of the license cannot be faulted, in view of the binding precedent. We desist from going into any of the other controversies which are pending before the appropriate Civil forum. It is for the parties to establish their rights in the proceedings pending or to be initiated before the civil forum and this Court cannot invoke the extra ordinary jurisdiction under Article 226 of the Constitution Writ Appeal No. 1347/2012 5 of India to enter into any of the factual controversies regarding tenancy, succession and so on and so forth. Hence we close the writ appeal without expressing any opinion on the relationship between the parties or the rights and liabilities of the parties, leaving open their right to agitate the same before the appropriate civil forums. We, however, decline interference, uphold the judgment of the learned Single Judge and leave the parties to suffer their respective costs. Sd/- **Manjula Chellur, Chief Justice** jma/25.2 Sd **/K.Vinod Chandran, Judge** . //true copy// P.A to Judge