R. Radhakrishnan v. Oachira Grama Panchayat and Shibu Thomas Zachariya

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 4TH DAY OF JUNE 2020 / 14TH JYAISHTA, 1942** ## **WP(C).No.10922 OF 2020(M)** ## **PETITIONER:** **R.RADHAKRISHNAN AGED 62 YEARS S/O.RAGHAVAN, RESIDING AT ELAMBADATHU HOUSE, MADATHIKARAZHMAMURI, MADATHIKARAZHMA.P.O, OACHIRA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM-690526** **BY ADV. SRI.K.S.HARIHARAPUTHRAN** ## **RESPONDENTS:** - **1 OACHIRA GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, KOLLAM-690526** - **2 SHIBU THOMAS ZAKHARIYA S/O.LATE ZAKHARIAYA, RESIDING AT HOUSE NO.6-16, PLOT NO.12, REMANA NAGAR COLONY DEMMAYI GUDA, THIRUMALA ENCLAVE, NAGARAMA.P.O, PIN-500083, HYDRABAD TALUK RR DISTRICT TELANGANA, STATE, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, KOCHUKUNJU, AGED 53 YEARS, S/O.MOHAMMED KUNJU, KOCHAYYATHU HOUSE, KATTILKADAVU.P.O, ADINDU SOUTH MURI, ADINADU VILLAGE, KARUNGAPPALLY TALUK-690542** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## ALEXANDER THOMAS, J. --------------------------------------W.P. © No. 10922 of 2020 --------------------------------------Dated this the 4[th] day of June, 2020 ## J U D G M E N T The case set up in this Writ Petition (Civil) is as follows: While the 2[nd] respondent was a minor, his father purchased an extent of 13.750 cents of property. Thereafter the father of the 2[nd] respondent constructed a four storied commercial building in the said property and leased out the shop rooms in the ground floor to different tenants and the rooms in the other storeys were used by him for lodging. Two shop rooms in the ground floor having Panchayat Number OP II/1034 was leased to the wife of the petitioner during 2011. In one room she was conducting an agency showroom and sales of Coirfed and in the other she was conducting business of interior decoration. From 2013 onwards, the petitioner had taken the shop room in the ground floor on a monthly rent of Rs.7,500/- for running the very same business and the rooms except Room No.102 in the 1[st] floor and all the rooms in the 2[nd] floor along with the hall in the upper storeys of the said building for constructing an educational institution with the consent of the building owner and necessary license from Panchayat. While conducting so, the W.P. © No. 10922/2020 ..3.. building owner died in the year 2017. Thereafter, as required by the 2[nd] respondent, monthly rent was remitted to the account of the 2[nd] respondent. While so, on 14.10.2019 at about 7 pm, one Abdul Shukkoor along with his 6 henchmen came to the shop rooms and informed the petitioner that they have purchased the building and demanded to vacate from the shop rooms. The petitioner filed complaint against them before the Police. Thereafter on 6.11.2019, the petitioner received a copy of the caveat filed by the 2[nd] respondent wherein it is falsely stated that the petitioner is holding only a single shop room in the ground floor of the building and that the petitioner is trying to illegally take possession of some other shop rooms in the said building. The petitioner preferred a suit before the Munsiff Court, and the Court allowed status quo in that case. The 2[nd] respondent filed an application before the 1[st] respondent requesting them not to grant license or registration to the educational institution of the petitioner. When the petitioner applied for renewal of license, the 1[st] respondent Panchayat rejected the application stating the above facts. It is in the light of the abovesaid facts and circumstances that the petitioner has filed W.P. © No. 10922/2020 ..4.. the instant Writ Petition (Civil) with the following prayers: - “ - _i. Issue an order setting aside Ext.P14 notice and direct the 1[st] respondents to consider the application for the renewal the licenses._ - _ii. Issue such other order or direction, as this Hon'ble Court deem fit and proper to grant.”_ 2. Heard Sri.K.S.Hariharaputhran, learned counsel appearing for the petitioner and Sri.B.Harish Kumar, learned counsel appearing for R-1 (Oachira Grama Panchayat). In the nature of order proposed to be passed in this petition, notice to contesting respondent No.2 will stand dispensed with. 3. It is the specific case of the petitioner that he had duly obtained the consent of predecessor-in-interest of the 2[nd] respondent for occupation and possession of subject building after duly entering into rental agreement with him, and that it is on the basis of such consent that the petitioner could secure the requisite trade license from the 1[st] respondent Panchayat for the conduct of his business in the said leased premises. That, now there are certain disputes between the petitioner and the 2[nd] respondent. Now, after the death of predecessor-in-interest of the 2[nd] respondent, there are disputes between the 2[nd] respondent and W.P. © No. 10922/2020 ..5.. the petitioner. The main complaint of the petitioner is that, the renewal of existing trade license of the petitioner to conduct business in leased premise has been rejected by the 1[st] respondent Secretary of the Grama Panchayat as per impugned Ext.P-14 order dated 19.2.2020, without even affording reasonable opportunity of being heard to him. It is urged that, since the impugned Ext.P-14 rejection order inflicts adverse civil consequences on the petitioner, it is elementary aspect of the matter that the 1[st] respondent should have afforded reasonable opportunity of being heard to the petitioner before a decision is taken in the matter, and that therefore it is urged that the impugned decision is illegal and ultra vires on the sole ground of violation of principles of natural justice. 4. Further, the main ground of rejection cited in Ext.P-8 is that, the building owner has intimated the 1[st] respondent that the renewal of trade license should not be granted by the Panchayat in favour of the petitioner, etc. It is urged that, it is by now well established by a series of decisions including the decision of the Apex Court in the case in _**Sudharan v. Corporation of**_ W.P. © No. 10922/2020 ..6.. _**Trivandrum**_ [ _**AIR 2016 SC 3180]**_ as well as the judgment of Division Bench of this Court in the case in _**Marimuthu v. Director General of Police [1999 (3) KLT 662]**_ that, consent of the landlord of leased premises is required only when license is to be given by the Panchayat/Municipality for conducting trade in the leased premises for the first time, and at the stage of subsequent renewal of license by the local authority concerned, the consent of building owner cannot be insisted lawfully, etc. 5. Without getting into the merits of the controversy in any manner it is seen that, the petitioner's application for renewal of trade license has been rejected as per Ext.P-14 order without affording a reasonable opportunity of being heard to him. Therefore, on that ground alone it is only to be held that the impugned proceedings is illegal and ultra vires for blatant violation of elementary principles of natural justice and fairness. Therefore, the matter requires serious reconsideration at the hands of the 1[st] respondent Secretary of the Grama Panchayat and hence the matter would warrant a remit. For effectuating such a remit, it is ordered that the impugned Ext.P-14 rejection order dated W.P. © No. 10922/2020 ..7.. 19.2.2020 will stand quashed and set aside, and the application of the petitioner for grant of renewal of trade license as as referred to therein, will stand remitted to the Secretary of the 1[st] respondent Grama Panchayat for consideration and decision afresh. 6. The Secretary of the 1[st] respondent Grama Panchayat will afford a reasonable opportunity of being heard to both petitioner as well as the 3[rd] respondent, and then should take a considered decision on the plea for renewal of license in accordance with law, without much delay preferably within a period of 3 weeks from the date of production of a certified copy of this judgment. While doing so, the Secretary of the 1[st] respondent Grama Panchayat will consider the legal principles already laid down by the Apex Court as in _**Sudharan v. Corporation of Trivandrum** [_ _**AIR 2016 SC 3180]**_ as well as the judgment of Division Bench of this Court in the case in _**Marimuthu v. Director General of Police [1999 (3) KLT 662].**_ It is also made clear that both sides may be permitted to submit their written submissions in the matter at the time of personal hearing. Needless to say, until orders are passed on the application for W.P. © No. 10922/2020 ..8.. renewal of trade license as afore directed, status quo as regards the petitioner's functioning shall be maintained. 7. The petitioner will forward a certified copy of this judgment along with copy of memorandum of this WP(C) with all exhibits to the Secretary of the 1[st] respondent Grama Panchayat for necessary information and further action. 8. Registry will forward a certified copy of this judgment to contesting respondent No.2 for necessary information. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG W.P. © No. 10922/2020 ..9.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE LEASE DEED DTD.16.04.2013**| |---|---| ||**EXECUTED BY THE ZACHARIAY IN FAVOUR OF THE**| ||**PETITIONER**| |**EXHIBIT P2**|**TRUE COPY OF THE CONSENT LETTER ISSUED BY**| ||**ZACHARIA IN FAVOUR OF THE PETITIONER DATED**| ||**23.07.2016**| |**EXHIBIT P3**|**TRUE COPY OF THE BANK RECEIPT DATED**| ||**12.06.2019, 14-08-2019, 18-09-2019, 17-10-**| ||**2019 ISSUED BY THE SYNDICATE BANK,**| ||**KRISHNAPURAM BRANCH**| |**EXHIBIT P3(A)**|**TRUE COPY OF THE BANK RECEIPT DATED**| ||**12.06.2019, 14-08-2019, 18-09-2019, 17-10-**| ||**2019 ISSUED BY THE SYNDICATE BANK,**| ||**KRISHNAPURAM BRANCH**| |**EXHIBIT P3(B)**|**TRUE COPY OF THE BANK RECEIPT DATED**| ||**12.06.2019, 14-08-2019, 18-09-2019, 17-10-**| ||**2019 ISSUED BY THE SYNDICATE BANK,**| ||**KRISHNAPURAM BRANCH**| |**EXHIBIT P3(C)**|**TRUE COPY OF THE BANK RECEIPT DATED**| ||**12.06.2019, 14-08-2019, 18-09-2019, 17-10-**| ||**2019 ISSUED BY THE SYNDICATE BANK,**| ||**KRISHNAPURAM BRANCH**| |**EXHIBIT P4**|**TRUE COPY OF THE REGISTRATION CERTIFICATE**| ||**OF MASTER CAREER GUIDANCE AND COACHING**| ||**CENTER DATED 20.10.2017 WITH NO OP6-**| ||**05/2016(4) ISSUED BY THE 1ST RESPONDENT**| ||**PANCHAYAT**| |**EXHIBIT P5**|**TRUE COPY OF THE REGISTRATION CERTIFICATE**| ||**OF MASTER CAREER GUIDANCE AND COACHING**| ||**CENTER DATED 22.07.2019 WITH NO.OP-6-6-**| ||**6-/19 ISSUED BY THE 1ST RESPONDENT**| ||**PANCHAYAT**| W.P. © No. 10922/2020 ..10.. |**EXHIBIT P6**|**TRUE COPY OF THE D AND O LICENSE ISSUED BY**| |---|---| ||**THE 1ST RESPONDENT PANCHAYAT DATED**| ||**22.07.2019**<br>**HAVING**<br>**LICENSE**<br>**NO.**| ||**OP6.6059/19)297)**| |**EXHIBIT P7**|**TRUE COPY OF THE D AND O LICENSE ISSUED BY**| ||**THE 1ST RESPONDENT PANCHAYAT DATED**| ||**19.10.2017 HAVING LICENSE NO.OP6.8533/17**| ||**(370)**| |**EXHIBIT P8**|**TRUE COPY OF THE COMPLAINT DATED 15.10.2019**| ||**BEFORE THE SHO, OACHIRA, POLICE STATION**| |**EXHIBIT P9**|**TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT**| ||**ISSUED BY THE OACHIRA POLICE STATION DTD**| ||**21.10.2019**| |**EXHIBIT P10**|**TRUE COPY OF THE OS NO.413/2019 DATED**| ||**22.11.2019 BEFORE THE LEARNED MUNSIFF**| ||**COURT, KARUNGAPPALLY**| |**EXHIBIT P11**|**TRUE COPY OF THE APPLICATION DATED**| ||**31.12.2019 PREFERRED BY THE 2ND RESPONDENT**| ||**BEFORE THE 1ST RESPONDENT**| |**EXHIBIT P12**|**TRUE COPY OF THE APPLICATION DATED**| ||**14.01.2020 PREFERRED BY THE 2ND RESPONDENT**| ||**BEFORE THE 1ST RESPONDENT**| |**EXHIBIT P13**|**TRUE COPY OF THE RECEIPT OF THE RENEWAL**| ||**APPLICATION NO.OP 2/556 DTD.14.02.2020**| ||**ISSUED BY THE 1ST RESPONDENT PANCHAYAT AND**| ||**OP 2/560-572**| |**EXHIBIT P13(A)**|**TRUE COPY OF THE RECEIPT OF THE RENEWAL**| ||**APPLICATION NO.OP 2/556 DTD.14.02.2020**| ||**ISSUED BY THE 1ST RESPONDENT PANCHAYAT AND**| ||**OP 2/560-572**| |**EXHIBIT P14**|**TRUE COPY OF THE NOTICE ISSUED BY THE 1ST**| ||**RESPONDENT PANCHAYAT DTD.19.02.2020 WITH**| ||**NO.OP6.1618/2020**|