IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 29TH DAY OF JUNE 2022 / 8TH ASHADHA, 1944
WP(C) NO. 9865 OF 2022
PETITIONER
AKSHAYA MEDICAL CENTRE
REG NO 3837/2016, DOOR NO XXI/586/A&B, MAIN ROAD,
MUKHARIKUNNU, CHELAKKARA P.O.THRISSUR-680 586,REP
BY ITS MANAGING PARTNER, RAJESH NAMBIATH, AGED 45
YEARS, S/O KRISHNANKUTTY NAIR, KALATHIL NAMBIATH
HOUSE, ANTHIMAHAKALAN KAVU P.O, PANGARAPPILLY,
THRISSUR-680 586
BY ADVS.
K.B.GANGESH
SMITHA CHATHANARAMBATH
ATHIRA A.MENON
RESPONDENTS
1 CHELAKKARA GRAMA PANCHAYAT
REPRESENTED BY ITS SECRETARY, P.O.CHELAKKARA,
THRISSUR DISTRICT-680 568
2 THE SECRETARY,
CHELAKKARA GRAMA PANCHAYATH, P.O.CHELAKKARA,
THRISSUR DISTRICT-680 568
3 SASIKUMAR,
S/O VELUKUTTY NAIR, PALANCHERRY HOUSE,
KILIMANGALAM P.O.THRISSUR-680 586
BY ADVS.
C.A.CHACKO
C.M.CHARISMA
SRI.P.C.SASIDHARAN , SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 29.06.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C).9865 of 2022
2
P.V.KUNHIKRISHNAN, J.
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W.P.(C).9865 of 2022
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Dated : 29th June, 2022
JUDGMENT
1. The above writ petition is filed with the following prayers :
(i) Issue a writ of certiorari or any other appropriate writ order or direction to quash Exts.P7 and P8 orders issued by the 2 nd respondent.
(ii) A writ of mandamus or any other appropriate writ order or direction commanding the respondents to take up the application for renewal of Ext.P1 licence preferred by the petitioner on 15.3.2022 forthwith and to consider the same on merits without insisting for a consent or fresh lease deed in respect of rooms bearing building numbers XXI/586A and 586B from the 3rd respondent landlord.
2. Exts.P7 and P8 orders issued by the 2nd respondent are challenged in this writ petition. Petitioner is the partnership firm constituted on 5.12.2016. Ext.P3 lease deed was for 11 months executed by the 3 rd respondent in favour of the petitioner. Ext.P1 licence was issued to the petitioner for conduct of business in rented premises covered by Ext.P3 lease deed. Petitioner/firm was conducting a medical shop. Ext.P5 letter was issued by the Panchayat requiring the petitioner to show cause as to WP(C).9865 of 2022 3 why the licence shall not be cancelled for want of consent from the landlord. Petitioner submitted Ext.P6 reply stating that consent from the landlord is not required for renewal. Petitioner applied for renewal of Ext.P1 licence. Ext.P7 order is issued by the Panchayat cancelling the licence. Ext.P8 order was also issued by the Panchayath rejecting the petitioner's application for renewal. Hence this writ petition.
3. Heard the learned counsel for the petitioner and the learned counsel for the 3rd respondent. I also heard the counsel for respondents 1 and 2.
4. Learned counsel for the petitioner reiterated his contentions and takes me through the judgments of the Apex Court in Sudhakaran v. Corporation of Trivandrum (2016 (3) KLT 247) which is produced as Ext.P10 and submitted that even in the case of application for obtaining licence for the first time, the tenant cannot be deprived of running lawful business merely because the landlord withheld consent. Learned counsel for the 3 rd respondent submitted that a forged document is produced for getting licence. Though a criminal case is filed before the police, police has not registered the case. Therefore, a WP(C).9865 of 2022 4 private complaint is filed. Now Crime No.298/2022 is registered by the police and is pending. More over, two Suits are also pending before the Civil Court, one filed by the petitioner and the other filed by the 3 rd respondent. In the Suit filed by the petitioner, there is an interim injunction against forceful eviction.
5. This Court considered the contentions of the petitioner and respondents. I think, in the light of the decision cited supra, the prayers in the writ petition are to be allowed subject to the result of the criminal case and civil case.
6. It is relevant to quote paragraph 8 in Sudhakaran's case which reads as under :
"After due consideration of the issues involved, we find merit in the submission made on behalf of the appellant. The statutory provision already quoted above shows that the requirement of consent of landlord is applicable only when a person intends to obtain a licence for the first time. Renewal of subsequent application for obtaining licence on expiry of the period of the existing licence. Even in the case of application for obtaining licence for the first time, the tenant cannot be deprived of running lawful business merely because the landlord withheld the consent. Valid tenancy itself has implied authority of the landlord for legitimate use of the premises by the tenant."
WP(C).9865 of 2022 5
7. In the light of the dictum laid down by the Apex Court, the stand taken by the Panchayath will not stand. I make it clear that issuance of the licence and renewal of the same will be subject to the result of the Suit and also subject to the result of the criminal case pending before the investigating authority. Therefore, this writ petition is disposed of with the following directions :
(i) Exts.P7 and P8 orders are set aside.
(ii) The 2nd respondent is directed to consider the application for renewal of licence submitted by the petitioner afresh, in accordance with law and allow the same, if it is otherwise in order.
(iii) Issuance of licence will be subject to the final decision in the Suit and criminal case pending investigation.
Sd/-
P.V.KUNHIKRISHNAN, Judge Mrcs WP(C).9865 of 2022 6 APPENDIX OF WP(C) 9865/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF LICENCE NO A9-
1410/2022/2021-22-470 DATED 1.3.2022 ISSUED BY THE 1ST RESPONDENT WHICH IS VAIID UP TO 31.3.2022 Exhibit P2 TRUE COPY OF PARTNERSHIP DEED DATED 5.12.2016 Exhibit P3 TRUE COPY OF LEASE DEED DATED 10.5.2019 EXECUTED BY THE 3RD RESPONDENT IN FAVOUR OF THE PETITIONER FIRM Exhibit P4 TRUE COPY OF BANK STATEMENT ISSUED BY BANK OF INDIA CHELAKKARA BRANCH TO THE PETITIONER ON 10.3.2022 EVIDENCING PAYMENT OF RENT TO THE 3RD RESPONDENT Exhibit P5 TRUE COPY OF LETTER NO A9/1410/22 DATED 5.3.2022 ISSUED TO THE PETITIONER Exhibit P6 TRUE COPY REPLY DATED 14.3.2022 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT Exhibit P7 TRUE COPY OF ORDER NO A9-1410/22 DATED 21.3.2022 ISSUED BY THE 2ND RESPONDENT Exhibit P8 TRUE COPY OF ORDER NO A9-1822/22 DATED 21.3.2022 ISSUED BY THE 2ND RESPONDENT Exhibit P9 TRUE COPY OF THE JUDGMENT OF THE HON'BLE SUPREME COURT REPORTED IN 2016(3) KLT 247