Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE VIJU ABRAHAM THURSDAY, THE 27TH DAY OF APRIL 2023 / 7TH VAISAKHA, 1945 WP(C) NO. 15240 OF 2022 PETITIONER: RAIHANATH, AGED 50 YEARS D/O.K.KUNJUMUHAMMED, PARAMMAL KALAMKUNNU HOUSE, CHUNGATHARA.P.O., MALAPPURAM DISTRICT, PIN - 679334 BY ADVS. DINESH MATHEW J.MURICKEN,K.A.ABHILASH VINOD S. PILLAI,MOHAMMED THAYIB N.M. NAYANA VARGHESE,AHAMMAD SACHIN K. RESPONDENTS:
1 STATE OF KERALA REP. BY SECRETARY TO GOVERNMENT, LOCAL ADMINISTRATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695001 2 EDAKKARA GRAMA PANCHAYATH,EDAKKARA.P.O., MALAPPURAM DISTRICT,PIN - 679331 REPRESENTED BY ITS SECRETARY, 3 THE SECRETARY EDAKKARA GRAMA PANCHAYATH, EDAKKARA.P.O. , MALAPPURAM DISTRICT, PIN - 679331 4 INDIAN OIL CORPORATION LTD DIVISIONAL OFFICE, KOZHIKODE, PMK TOWERS, CIVIL STATION.P.O., KOZHIKODE DISTRICT, REPRESENTED BY ITS DIVISIONAL MANAGER, PIN - 673020 5 K.RABIYAKUTTY, W/O.LATE ALAVI KURIKKAL, KURIKKAL HOUSE, P.O.EDAKKARA, MALAPPURAM DISTRICT, 6 M.P.ABDUL AZEEZ KURIKKAL S/O.M.P.ALAVI KURIKKAL, KURIKKAL HOUSE, P.O.EDAKKARA, MALAPPURAM DISTRICT, 7 M.P.MOHAMMED SHEREEF KURIKKAL S/O.M.P.ALAVI KURIKKAL, KURIKKAL HOUSE, P.O.EDAKKARA, MALAPPURAM DISTRICT,
WP(C) No.15240 of 2022 2
8 M.P.ABDUL MANAF KURIKKAL S/O.M.P.ALAVI KURIKKAL, KURIKKAL HOUSE, P.O.EDAKKARA, MALAPPURAM DISTRICT, 9 M.P.ABDUL RASHEED, S/O.M.P.ALAVI KURIKKAL, KURIKKAL HOUSE, P.O.EDAKKARA, MALAPPURAM DISTRICT, 10 M.P.MOHAMMED SADIQUE KURIKKAL S/O.M.P.ALAVI KURIKKAL, KURIKKAL HOUSE, P.O.EDAKKARA, MALAPPURAM DISTRICT, 11 M.P.HAFSATH, W/O.NEELENGADAN ABDUL HACKEEM, NEELENGADAN HOUSE, P.O.VANIYAMBALAM, MALAPPURAM DISTRICT, PIN-679339 ADDL.R12 ABDUL HAKKEEM, AGED 58 YEARS, S/O M.P ALAVI KURIKKAL, KURIKKAL HOUSE, EDAKKARA P.O, MALAPPURAM ADDL.R13 FASSAL RAHMAN, AGED 37 YEARS, S/O M.P.ALAVI KURIKKAL, KURIKKAL HOUSE, EDAKKARA P.O, MALAPPURAM ADDL.R14 SABNA N, AGED 34 YEARS, D/O M.P ALAVI KURIKKAL, KURIKKAL HOUSE, EDAKKARA P.O, MALAPPURAM (ADDL.R12 TO R14 IMPLEADED AS PER ORDER DATED 27.04.2023 ON IA NO.2 OF 2022) BY ADVS. R2 BY ADV.U.K.DEVIDAS M.P.PRABHAKARAN (PALAKKAD) SRI.MATHEWS J.NEDUMPARA, SC, IOC R5 TO R10 BY ADV.K.M SATHYANATHA MENON K.M R4 BY ADVS.M.GOPIKRISHNAN NAMBIAR K.JOHN MATHAI JOSON MANAVALAN KURYAN THOMAS PAULOSE C. ABRAHAM RAJA KANNAN
OTHER PRESENT: R1 BY GP - RIYAL DEVASSY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) No.15240 of 2022 3
VIJU ABRAHAM, J.
................................................................. W.P.(C) No.15240 of 2022 ................................................................. Dated this the 27th day of April, 2023
JUDGMENT
Above writ petition is filed challenging Exts.P9 and P10 and for a further direction to the third respondent to consider and pass orders on Ext.P11 application for renewal of licence without insisting upon fresh lease deed or consent of the landlord. Petitioner is running a petrol diesel retail outlet as dealer of the fourth respondent Indian Oil Corporation from 2008 onwards on the strength of Ext.P1 dealership agreement dated 01.08.2008, in 40 cents of land comprised in Survey No.1053 of Edakkara Village. Ext.P1 dealership agreement is for a period of 15 years and the above-said property was taken on lease by the fourth respondent from respondent Nos.5 to 11 as per Ext.P2 lease deed dated 09.05.2003 and the fourth respondent thereafter constructed the building and installed petrol/diesel tanks etc. As per the terms of Ext.P2 lease deed, the fourth respondent is entitled to run the retail outlet through its agents and therefore petitioner being the dealer of the fourth respondent is entitled to run retail outlet in the premises covered by Ext.P2 lease deed. Ext.P3 is the D&O licence issued by the second respondent panchayat. Petitioner submitted WP(C) No.15240 of 2022 4 application for renewal of licence for the year 2020-21 and since no decision was taken on the same within a period of 30 days, the application for renewal of licence was deemed to be allowed as per Section 236(3) of the Kerala Panchayat Raj Act. Thereafter Ext.P5 communication was issued by the third respondent, Secretary of the Panchayat intimating that a complaint has been received from the nineth respondent, one of the lessor informing that Ext.P2 lease deed has been cancelled and therefore, if the petitioner do not produce necessary documents in this regard, the application will be rejected. Thereafter, the petitioner submitted application for renewal of licence for 2021-22 which was also not considered within 30 days and therefore, the petitioner has a deemed licence as per the provisions of Section 236(3) of the Kerala Panchayat Raj Act. Subsequently, Ext.P8 communication was sent by the third respondent intimating that the renewal of licence could be considered only on production of a lease deed and subsequently Ext.P9 notice was issued intimating that steps will be taken to close down the establishment. Thereafter, by Ext.P10 communication, third respondent intimated the petitioner to close down the establishment within 30 days from the date of the receipt of the copy of the notice. Thereafter, the petitioner submitted Ext.P11 application for renewal which has not been considered by the respondent Panchayat. Petitioner relies on the judgment in WP(C) No.15240 of 2022 5 Sudhakaran v. Corporation of Trivandrum and Others, (2016) 14 SCC 263 in support of his contention.
2. Respondents Nos. 5 to 10 filed a detailed counter affidavit
contending as follows. Ext.P2 lease deed was executed on 09.05.2003 for a period of 15 years from 28.11.2002 and the period of Ext.P2 expired on 27.11.2017 and as no fresh deed has been executed, the fourth respondent or the petitioner has no legal right to continue the occupation of the respondent’s property. It is specifically stated in Ext.P2 agreement that on the expiry of the period of the lease deed, the fourth respondent shall give vacant possession of the property after removing/dismantling the structures, machinery etc. The respondents along with the petitioner are the co-owners of the property and they did not intend to extend the term of Ext.P2 agreement for any further period and accordingly, the respondents along with the petitioner and other co-owners had informed the fourth respondent about their intention to terminate the lease deed even before the expiry of the lease period and a lawyer notice was sent on 12.12.2017. Thereupon, the fourth respondent approached these respondents including the petitioner and expressed their intention to purchase the above 40 cents of land along with a one acre of property, but the said proposal could not be finalized. Thereupon, these respondents together with the petitioner issued Ext.R5(a) notice to WP(C) No.15240 of 2022 6 execute the sale deed as agreed upon. But the fourth respondent did not perform their part of the obligation. Thereafter, W.P(C) No.9089 of 2021 was filed by these respondents together with other co-owners and the petitioner, seeking a direction to the fourth respondent to vacate the property covered by Ext.P2 lease deed. It is suppressing all these aspects, the present writ petition has been filed. The petrol pump is now running without any licence issued by the respondent panchayat. Thereupon, the third respondent panchayat issued Ext R5(c) communication directing the petitioner to produce the document relating to possession of the land within 7 days or else the petrol pump will be closed and the petitioner has suppressed the issuance of the said communication in this writ petition. No licence was issued to the petitioner for the year 2021 and the contention of the petitioner that he is entitled for deemed licence is without any basis. The third respondent has also issued Exts.R5(d) and (e) communications to the fourth respondent directing to stop the operation of the pump immediately and consequently, Ext.P9 communication was issued to the petitioner also. The fourth respondent is no more a statutory tenant of the respondents. Ext.P2 agreement has expired and the same is not renewed and these respondents along with the petitioner have clearly communicated their intent to get the property vacated. They rely on the judgment of the Apex Court in C. Albert Mooris v. K. WP(C) No.15240 of 2022 7 Chandrasekaran and Others, (2016) 1 SCC 228 and the decision in W.P(C) No.3545 of 2017. Based on the above-said averments, the respondents sought for dismissal of the writ petition.
3. The question to be considered in this case is as to
whether a direction could be issued to the third respondent to consider Ext.P11 application for renewal of licence without insisting upon a fresh lease deed or consent of the landlord. Heavy reliance is placed on the judgment of the Apex Court in Sudhakaran’s case supra which
held that consent of the landlord is not required for renewal of
municipal licence to run a shop. In the present case, Ext.P2 lease deed is executed between the fourth respondent company and respondent Nos.5 to 11, which has already expired. The petitioner is running the petroleum outlet as a dealer of Indian Oil Corporation on the strength of Ext.P1 dealership agreement. Infact, the petitioner is not the tenant in Ext.P2 lease deed, and therefore, the principles in Sudhakaran’s case supra will not strictly apply in the facts of the present case. Admittedly, the petitioner along with party respondents has issued Ext.R5(a) notice to the fourth respondent and also filed Ext.R5(b) writ petition seeking a direction to the fourth respondent to vacate the property. The third respondent has issued Ext.R5(c) notice directing the petitioner to produce documents relating to possession of land or else the petrol pump will be closed. All these aspects are WP(C) No.15240 of 2022 8 suppressed while filing the writ petition. Respondents 5 to 10 rely on the judgment in C. Albert Mooris’s case supra, the relevant portion of which reads as follows:
“43. In our opinion, any right which the dealer has over his site was the right which he had acquired in terms of the lease. When that lease expired and when the landlord declined to renew the same and also called upon the erstwhile tenant to surrender possession, the erstwhile lessee could no longer assert that he had any right to the site. His continued occupation of something which he had no right to occupy cannot be regarded as source of a right to the land of which he himself was not in lawful possession.”
The said legal position has been followed by this court in W.P(C) No. 3545 of 2014, though in the case of suspension/cancellation of the explosive licence. In view of the above facts and circumstances and also taking into consideration the fact that there are suppression of material facts, I am of the opinion that the petitioner is not entitled for any of the reliefs sought for in this writ petition. The writ petition is accordingly dismissed. Sd/- VIJU ABRAHAM JUDGE cks WP(C) No.15240 of 2022 9 APPENDIX OF WP(C) 15240/2022 PETITIONER EXHIBITS Exhibit1 TRUE COPY OF THE DEALERSHIP AGREEMENT EXECUTED BETWEEN THE PETITIONER AND THE 4TH RESPONDENT DATED 01.08.2008 Exhibit P2 TRUE COPY OF THE LEASE DEED EXECUTED BETWEEN THE 4TH RESPONDENT AND THE RESPONDENTS 5 TO 11 DATED 09.05.2003 Exhibit P3 TRUE COPY OF THE D & O LICENCE ISSUED FROM THE 2ND RESPONDENT DATED 29.04.2019 FOR YEAR 2019-2020 Exhibit P4 TRUE COPY OF THE CASH RECEIPT DATED
12.02.2020 ISSUED FROM THE 2ND RESPONDENT EVIDENCING THE PAYMENT OF LICENCE FEE FOR THE YEAR 2020-2021 Exhibit P5 TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT DATED 22.07.2020 Exhibit P6 TRUE COPY OF THE APPLICATION FOR RENEWAL OF LICENCE SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR THE PERIOD 2021-2022 DATED 22.02.2021
Exhibit P7 TRUE COPY OF THE CASH RECEIPT DATED 22.02.2021 EVIDENCING THE PAYMENT OF LICENCE FEE FOR THE YEAR 2021-2022 Exhibit P8 TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT DATED 23.12.2021 Exhibit P9 TRUE COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT DATED 31.01.2022 Exhibit P10 TRUE COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT DATED 02.04.2022 Exhibit P11 TRUE COPY OF THE APPLICATION FOR RENEWAL OF LICENCE SUBMITTED BY THE PETITIONER THROUGH ONLINE DATED 23.04.2022 RESPONDENT EXHIBITS
Exhibit R5(a) A true copy of the lawyer notice issued to the 4th respondent through Advocate dated 17.12.2019
WP(C) No.15240 of 2022 10 Exhibit R5(b) A true copy of the memorandum of writ petition in W.P (c)No: 9089/2021 along with Exhibits Exhibit R5(c) A true copy of the communication issued by the 3rd respondent to the petitioner dated 01.10.2020 Exhibit R5(d) A true copy of the communication issued by the 3rd respondent to the Assistant Sales Manager of 4th respondent dated 24.01.2022 Exhibit R5(e) A true copy of the communication issued by the 3rd respondent to the Divisional Manager (sales) of 4th respondent dated 2.04.2022