W.P.(C)No.16942 of 2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 10TH DAY OF MAY 2022 / 20TH VAISAKHA, 1944
WP(C) NO. 16942 OF 2021
PETITIONER:
M/S. C.S.ALEXANDER,
REPRESENTED BY ITS MANAGING PARTNER,
C.S.ALEXANDER, CHIRAMMEL VEEDU,
MUNDANKKAVU, CHENGANOOR, PIN-689121.
BY ADVS.
SRI.ADARSH KUMAR
SRI.K.M.ANEESH
SRI.K.SANTHOSH KUMAR (KALIYANAM)
SRI.BIJU VARGHESE ABRAHAM
SRI.DILEEP CHANDRAN
SRI.SHASHANK DEVAN
RESPONDENTS:
1 PANDALAM MUNICIPALITY
REPRESENTED BY ITS SECRETARY,
MC ROAD JUNCTION, NEAR BUS STAND,
PANDALAM, PATHANAMTHITTA, PIN-689501.
2 THE MUNICIPAL SECRETARY,
PANDALAM MUNICIPALITY
MC ROAD JUNCTION, NEAR BUS STAND,
PANDALAM, PATHANAMTHITTA, PIN-689501.
3 THE MUNICIPAL HEALTH INSPECTOR,
PANDALAM MUNICIPALITY,
MC ROAD JUNCTION, NEAR BUS STAND,
PANDALAM, PATHANAMTHITTA, PIN-689501.
4 HINDUSTAN PETROLEUM CORPORATION LIMITED,
REPRESENTED BY ITS CHIEF REGIONAL MANAGER,
REGIONAL OFFICE AT TATAPURAM, PB NO.161,
ERNAKULAM NORTH, COCHIN, PIN-682018.
*ADDITIONAL RESPONDENT NOS. 5 & 6 IMPLEADED
ADDL. R5 SIJU.C.ABRAHAM
AGED 48 YEARS, S/O. LATE C.J.ABRAHAM,
CHERIAMADOM HOUSE, THONNALLOOR MURI,
W.P.(C)No.16942 of 2021 2
PANDALAM VILLAGE, PANDALAM P.O.,
PATHANAMTHITTA DISTRICT, PIN: 689501.
ADDL. R6 SAJINI CHERIAMADOM ABRAHAM
AGED 59 YEARS, D/O. LATE C.J.ABRAHAM,
CHERIAMADOM HOUSE, THONNALLOOR MURI,
PANDALAM VILLAGE, PANDALAM P.O.,
PATHANAMTHITTA DISTRICT, PIN: 689501.
ADDITIONAL RESPONDENTS 5 AND 6 IMPLEADED AS PER THE
ORDER DATED 06.09.2021 IN I.A.01/2021 IN WP(C)
16942/2021.
BY ADVS.
SMT.T.S.MAYA (THIYADIL)
SRI M.GOPIKRISHNAN NAMBIAR
SRI R.T.PRADEEP
SMT.M.BINDUDAS
SRI K.C.HARISH
SRI K.JOHN MATHAI
SRI JOSON MANAVALAN
SRI KURYAN THOMAS
SRI PAULOSE C. ABRAHAM
SRI RAJA KANNAN
SHRI.S.SUBHASH CHAND, SC, PANDALAM MUNICIPALITY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
09.02.2022, THE COURT ON 10.5.2022 DELIVERED THE FOLLOWING:
W.P.(C)No.16942 of 2021 3
T.R. RAVI, J.
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W.P.(C)No.16942 of 2021
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Dated this the 10th day of May, 2022
JUDGMENT
The petitioner is operating a petroleum retail outlet in a building bearing No.6/893 of the Pandalam Municipality situated at Re- Sy.No.189/19. The retail outlet has been functioning from 1960 onwards. Initially, it was being conducted by M/s CALTEX India Limited. During 1970s, the management was taken over by one M/s. United Trading Corporation. Thereafter during 1980s, the Managing Partner of the petitioner firm took over the management of the outlet as dealer of the 4th respondent oil company which had come into existence by then. From 2018, the operation of the outlet is by a firm since the Managing Partner added his son also as a partner. The petitioner claims that the petitioner and the 4 th respondent have obtained all the requisite approvals from various competent authorities for the purpose of establishing and running of the retail outlet. Licenses have been obtained from the Municipality, the Controller of Explosives, Fire and Rescue, etc. When the D&O licence issued by the Municipality as Ext.P2 was nearing expiry, the petitioner applied for renewal. Ext.P2(B) is the application dated 1.3.2021, W.P.(C)No.16942 of 2021 4 which has been acknowledged by Ext.P2(C) on 5.3.2021. The 1 st respondent did not accept the application. The petitioner submitted another application on 3.8.2021 which has been produced as Ext.P3. By Ext.P4 dated 6.8.2021, the application submitted by the petitioner has been rejected by the 2nd respondent. The reasons stated in the order of rejection are failure to affix stamp in the application form and absence of authorisation letter from the 4th respondent and receipt of payment of profession tax. The petitioner was directed to close down the outlet and was threatened with coercive action such as sealing of the outlet. Ext.P5 is the receipt of payment of profession tax and Ext.P5(a) is the receipt for payment of property tax. The Health Inspector Gr.I of the Municipality who has been impleaded as the 3 rd respondent affixed Ext.P6 notice of closure in the retail outlet. The writ petition has been filed in the above circumstances praying to quash Exts.P4 and P6 and for a direction to reconsider Ext.P3 application for renewal of the D&O licence.
2. Respondents 1 to 3 have filed a counter affidavit stating that on inspection by the Municipality, it was found that there was no building bearing No.6/893 in the Re-Sy.No.189/19. It is stated that no relevant revenue records have been produced to substantiate the claim. It is stated that in Ext.P2 the petitioner had obtained the licence in 2020 with building bearing No.893/A. It is further stated W.P.(C)No.16942 of 2021 5 that the outlet is situated in Re-Sy.No.188/19-2-2 & 188/19-2 comprised in Pandalam Village which was earlier owned by one K.M.Abraham as per the Municipality records. The said K.M.Abraham had entered into a lease agreement with the 4 th respondent which had been renewed on 27.11.1992 for a further period of 20 years. It is further stated that as per the provisions of the Municipality law, only the land owner or the legal heir of the deceased land owner or the power of attorney of the original land owner can be mentioned as owner in the assessment register, but due to certain highhanded actions taken by the old Panchayat Office, the column which has to show the name of the owner shows the name of the 4th respondent and thereafter the petitioner in the assessment register. It is stated that the Municipality came to know about the mistake only after the deceased original owner's legal representatives approached them and lodged a complaint before the District Police Superintendent, Vigilance and Anti-Corruption Bureau. It is further stated in the counter affidavit that the legal heirs of the original property owner had intimated the Municipality that they had never renewed the rental agreement with the 4th respondent after 2012 and that the present petitioner is a total stranger and they cannot be held responsible if any accident happens in the property due to the petitioner using explosive articles. The counter affidavit further says that no valid W.P.(C)No.16942 of 2021 6 lease agreement has been produced and it was for all these reasons that the application was rejected and subsequently on 10.8.2021, it is stated, that a notice had been issued to the petitioner asking him to produce the records, which are essential for issuance of the licence.
3. Additional respondents 5 and 6 have filed a counter affidavit. The additional respondents 5 and 6 and their elder brother one Saju C.Abraham are the owners of the property. It is stated in the affidavit that the property originally belonged to their grandfather Sri P.K.Yohannan who had entered into a lease with the predecessor of the 4th respondent M/s CALTEX India Limited for an initial period of 10 years which was extended for a further period of 20 years. It is stated that the period of 20 years expired on 30.9.1990. By virtue of a Central Enactment, the shares of M/s.CALTEX India Limited were acquired by the 4th respondent. Sri P.K.Yohannan had sold the property to his daughter Smt.Ponnamma Abraham and thereafter the 4th respondent had entered into a lease agreement with Smt.Ponnamma Abraham on 27.11.1992 for a period of 20 years. It is stated that the lease agreement stands terminated with effect from 31.3.2012. It is further stated that Smt.Ponnamma Abraham died on 28.11.1995 and her husband died on 7.7.2007 and thereafter the additional respondents 5 and 6 and their brother are the owners of the property by succession. It is further stated that the owners have W.P.(C)No.16942 of 2021 7 entered into a partition agreement and the partition has not been effected by metes and bounds and is still in joint possession. It is further stated that the mutation has been carried out and tax is being paid by the respective owners. It is further stated that holding over of the property by the 4th respondent will not entitle the petitioner who is a dealer of the 4th respondent to seek renewal of the D&O licence. It is stated that the petitioner was having 5 cents of property adjoining the boundary of the property of additional respondents 5 and 6 where he was having a shop room which was bearing the building No.6/893. It is stated that the said property was sold and the building No.6/893 is not in existence and that the building is not in the property which had been given on lease. It is further stated that the office building for the retail outlet bears the No.6/893A and was assessed in the name of the 4th respondent, but the D&O licence had been taken for the building No.6/893. It is thereafter stated that the respondents 5 and 6 had moved the Municipality and got the assessment in the name of the 4th respondent cancelled and changed to that of their names. It is further stated that the building has been re-numbered as 6/893(1). There is an allegation that the Municipality is hand in glove with the petitioner and that renewal of licence is sought by practising fraud as the subject matter which is the building bearing No.6/893 is not existing.
W.P.(C)No.16942 of 2021 8
4. The 4th respondent has filed a counter affidavit, wherein it is stated that Sri P.K.Yohannan who was in possession and enjoyment of 12.62 cents of land in Sy.No.318/4A had entered into a registered lease agreement evidenced by document Nos.1560/1962 and 2600 of 1972 of SRO, Pandalam, whereby the land had been leased in favour of M/s.CALTEX India Limited. The lease was valid till 13.9.1990. The lease was for the purpose of setting up of petroleum/diesel outlet. It is stated that the petroleum outlet in the leased premises was operational with permanent structures well before 1967 when M/s. CALTEX India was the lesseee and that by operation of the provisions contained in Caltex Acquisition of Shares of Caltex Oil Refining (India) Limited and of the Undertakings in India of Caltex (India) Limited Act, 1977(hereinafter referred to as the Act), the 4th respondent became the successor in interest of M/s.Caltex India Limited. It is further stated that by virtue of the provisions contained in Section 7(3) of the Act, the 4th respondent was entitled to renewal of the lease for a further period of 20 years commencing from 14.9.1990 on the same terms and conditions. In recognition of such right, Mrs.Ponnamma Abraham who was the then owner executed a lease deed on 27.11.1992 in favour of the 4th respondent for a period of 20 years from 1.4.1992. The rent was being paid to Mrs.Ponnamma Abraham during her life time. Consequent to the death of Mrs.Ponnamma W.P.(C)No.16942 of 2021 9 Abraham, the legal heirs executed a power of attorney in favour of the 5th respondent, authorising him to receive the rent. The rent was being received by the 5th respondent. Sri C.J.Abraham, the husband of late Ponnamma Abraham died on 7.7.2007. It is further stated that on 1.12.2011, a letter had been addressed to Sri Saju C.Abraham expressing the desire of the 4 th respondent to renew the lease agreement along with the proposal to enhance the lease rent reasonably and requesting for a discussion to finalise the renewed lease terms and conditions. It is stated that there was no response to the said letter and that cheques issued towards the lease amounts were deliberately refused to be accepted and were returned by the postal authorities with the endorsement "not accepting". It is further stated that the 5th and 6th respondents along with Mr.Saju C.Abraham have filed O.S.No.310 of 2015 before the Munsiff Court, Adoor against the 4th respondent primarily seeking recovery of possession of plaint schedule property. The 4th respondent has entered appearance in the suit and filed their written statement contending that the continuance of the lease arrangement is legally valid and that the plaintiffs have deliberately suppressed the issuance of letter dated 1.12.2011 by the 4th respondent. The 4th respondent has claimed in the suit that they are entitled to the statutory protection under Section 106 of the Kerala Land Reforms Act and that the petroleum outlet was W.P.(C)No.16942 of 2021 10 operational with permanent structures much prior to 1967. It is contended that the lease deed dated 27.11.1992 is only a continuation of the original lease deed that was executed by the predecessor of the 4th respondent and that the said lease was for a commercial purpose. The contention is that since the 4 th respondent is a commercial tenant, they are entitled to the statutory protection under Section 106 of the Kerala Land Reforms Act. The above said suit is still pending consideration of the civil court. It is specifically contended that the structures and building in the premises were constructed by the 4th respondent and that was the reason why the property tax and profession tax were also being assessed and paid in the name of the petitioner.
5. The petitioner has filed a reply to the counter affidavit filed on behalf of respondents 1 to 3. Another reply affidavit has been filed in reply to the averments to the counter affidavit filed by respondents 5 and 6 also. The 4th respondent has also filed I.A.No.4 of 2021 seeking to produce Exts.R4(a) to R4(d). Ext.R4(c) is a letter dated 24.5.1968 issued by the grandfather of the additional respondents 5 and 6, late P.K.Yohannan, in which it is stated that the predecessor-in- interest of the 4th respondent had constructed the building and established the petrol bunk at their cost in the property. It is specifically stated that he had leased out only the land and that all the W.P.(C)No.16942 of 2021 11 improvements and business are being done by the predecessor in interest of the 4th respondent. The letter itself was occasioned since a demand was raised by the Tahsildar for realising amounts against the constructions made. Ext.R4(d) is another letter issued by late P.K.Yohannan, in which he has specifically stated that under Section 106 of the Kerala Land Reforms Act, 1964, as amended by Act 35 of 1969, the lessor is entitled to have rental increased in view of the importance of the locality and the enhanced rental value of the holding and stating that he will not be in a position to execute any further deed as contemplated in the rent deed dated 6.3.1962, if enhanced rent is not being paid. It is thereafter that the lease deed was further executed for another term.
6. Heard the counsel for the petitioners and the respondents.
7. Admittedly, the suit initiated in 2015 seeking eviction of the petitioner and the 4th respondent from the premises is pending consideration of the civil court. At this stage, it is not possible to say that the possession of the 4th respondent and the petitioner over the property is illegal. Admittedly, they have been in possession for the past several years based on lease deeds executed by the predecessors-in-interest and the lessors have been receiving the rent. In the decision reported in Sudhakaran V. Corporation of Thiruvananthapuram [(2016) 14 SCC 263], the Hon'ble Supreme W.P.(C)No.16942 of 2021 12 Court has held that consent of the landlord for the purpose of renewal of D&O license is not required and that going by the statutory provision such a consent is required only at the first instance. The Court went further to hold that even at the first instance, it may not be necessary for producing a letter of consent so long as it is shown that there is a valid tenancy. The Court held that the existence of a valid tenancy itself is a consent by the landlord for carrying out any lawful activity in the property. It is not disputed that operating a retail petroleum outlet is a lawful activity. In such circumstances, there can be no insistence that the licence will be renewed only with the owner's consent. The rights of the owners are to be decided in the civil suit pending between the parties and that need not in any way affect the exercise of the duty of the 1st respondent to consider the application for renewal in accordance with law. A consideration of the documents that have been produced in the case and the pleadings will clearly show that the petitioner and his predecessors have been operating the petroleum outlet from the 1960s. The 1 st respondent Panchayat has also been issuing licence and the outlet was being conducted with licence till the expiry of the earlier licence in December, 2021. The petitioners had submitted application for renewal of the licence several months before the expiry of the licence, probably owing to the pendency of the civil suit and the objection raised by the owners of W.P.(C)No.16942 of 2021 13 the land. It would appear from the pleadings that the building which had earlier been assessed in the name of the 4 th respondent was converted as an assessment in the name of the owners on the basis of a complaint made by the owners. There is nothing to show that the 4th respondent was even put on notice about such a change. It can be seen from the documents produced by the 4 th respondent that the constructions were effected by the 4th respondent and not by additional respondents 5 and 6 or their predecessors at any point of time. That being so, the change of assessment in the name of the owners and that too without notice to the 4 th respondent was totally unwarranted. The contention regarding the number of the building has been taken on the premise of the change of ownership and the said contention cannot be sustained. This Court is of the considered view that the action of the Municipality in rejecting the application for renewal of the licence for the reasons stated in Ext.P4 are totally unwarranted. The first reason regarding affixture of stamp is a curable defect. So are the reasons regarding the production of the receipt evidencing payment of profession tax and the authorisation from the 4th respondent. Even though the consent of the landlord has not been stated as a reason in Ext.P4, the said reason has been stated in the counter affidavit filed by respondents 1 to 3. The question deserves a re-look by respondents 1 to 3. W.P.(C)No.16942 of 2021 14
8. In the result, the writ petition is allowed. Exts.P4 and P6 are quashed. There will be a direction to respondents 1 and 2 to consider the application submitted by the petitioner for renewal of the D&O licence in accordance with law and to grant the same if the petitioner is otherwise entitled. The reason regarding consent from the landlord or the existence of tenancy or the assessment of the building in favour of the landlords shall not be reasons for rejecting the licence. It is made clear that this Court has not considered the correctness of the change of the assessment of the building in the name of the landlords and the observations made are only for the purpose of deciding the question of renewal of licence in the name of the petitioner. The above said question is left open to be decided in appropriate proceedings. The petitioner shall be allowed to cure any defect in the application for renewal, by putting them on notice regarding the same. Necessary orders shall be issued within one month from the date of receipt of a copy of this judgment. The interim order issued by this Court on 13.8.2021 shall continue to be in force till the application is disposed of by respondents 1 and 2.
Sd/-
T.R.RAVI JUDGE dsn W.P.(C)No.16942 of 2021 15 APPENDIX OF WP(C) 16942/2021 PETITIONERS' EXHIBITS Exhibit P1 A TRUE COPY OF THE PETROL/DIESEL DEALER AGREEMENT FOR CORPORATION OWNED/LEASED OUTLETS DATED 15.2.2019 BETWEEN THE PETITIONER AND THE 4TH RESPONDENT.
Exhibit P2 A TRUE COPY OF THE LICENSE DATED 17.11.2020 ISSUED UNDER SECTION 447 OF THE KERALA MUNICIPALITY ACT 1994 BY THE 1ST RESPONDENT WITH RESPECT TO THE SUBJECT RETAIL OUTLET.
Exhibit P2(A) A TRUE COPY OF LICENSE 24.4.2019 ISSUED BY THE CONTROLLER OF EXPLOSIVES UNDER THE MINISTRY OF COMMERCE AND INDUSTRY, GOVERNMENT OF INDIA.
Exhibit P2(B) A TRUE COPY OF THE APPLICATION DATED 1.3.2021 SUBMITTED BY THE PETITIONER.
Exhibit P2(C) A TRUE COPY OF ACKNOWLEDGMENT OF RECEIPT DATED 5.3.2021 ISSUED BY THE 1ST RESPONDENT OF THE D & O APPLICATION.
Exhibit P3 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE MANAGING PARTNER OF THE FIRM BEFORE THE 1ST RESPONDENT SEEKING FOR RENEWAL OF D&O LICENSE WITH RESPECT TO THE SUBJECT MATTER OUTLET.
Exhibit P3(A) A TRUE COPY OF THE ACKNOWLEDGMENT OF RECEIPT DATED 3.8.2021 OF LICENSE FEE BY THE 1ST RESPONDENT WITH RESPECT TO THE D & O LICENSE RENEWAL APPLICATION SUBMITTED BY THE PETITIONER.
Exhibit P4 A TRUE COPY OF THE ORDER/COMMUNICATION DATED 6.8.2021 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.
Exhibit P5 A TRUE COPY OF THE RECEIPT ISSUED BY THE 1ST RESPONDENT IN AUGUST 2021 IN CONNECTION WITH PROFESSIONAL TAX PAID WITH RESPECT TO THE RETAIL OUTLET.
Exhibit P5(A) A TRUE COPY OF RECEIPT DATED 29.1.2021 ISSUED BY THE 1ST RESPONDENT IN CONNECTION WITH PROPERTY TAX PAID BY MANAGING PARTNER OF THE PETITIONER FIRM.
Exhibit P6 A TRUE COPY OF THE NOTICE OF CLOSURE/SEALING OF THE SUBJECT MATTER RETAIL OUTLET ISSUED AND AFFIXED AT THE SAID RETAIL OUTLET'S PREMISES BY W.P.(C)No.16942 of 2021 16 THE HEALTH INSPECTOR, GRADE I, PANDALAM MUNICIPALITY, PATHANAMTHITTA DISTRICT.
Exhibit P7 A TRUE COPY OF THE INTERIM ORDER DATED 11.7.2014 IN WP(C) NO.17796/2014.
Exhibit P7(A) A TRUE COPY OF THE INTERIM ORDER DATED 26.2.2016 IN WP(C) NO.7417/2016.
Exhibit P7(B) A TRUE COPY OF THE INTERIM ORDER DATED 26.7.2016 IN WP(C) NO.24646/2016.
Exhibit P7(C) A TRUE COPY OF THE INTERIM ORDER DATED 6.2.2018 IN WP(C) NO.3815/2018.
Exhibit P7(D) A TRUE COPY OF THE INTERIM ORDER DATED 27.2.2018 IN WP(C) NO.6549/2018.
Exhibit P7(E) A TRUE COPY OF THE INTERIM ORDER DATED 25.2.2019 IN WP(C) NO.6549/2018.
Exhibit P8 A TRUE COPY OF PROPERTY TAX RECEIPT DATED 13/04/2016 PAID WITH RESPECT TO THE SUBJECT MATTER RETAIL OUTLET.
Exhibit P8(a) A TRUE COPY OF PROPERTY TAX RECEIPT DATED 10/04/2017 PAID WITH RESPECT TO THE SUBJECT MATTER RETAIL OUTLET.
Exhibit P8(b) A TRUE COPY OF PROPERTY TAX RECEIPT DATED 04/05/2018 PAID WITH RESPECT TO THE SUBJECT MATTER RETAIL OUTLET.
Exhibit P8(c) A TRUE COPY OF PROFESSION TAX RECEIPT DATED 29/05/2020 PAID WITH RESPECT TO THE SUBJECT MATTER RETAIL OUTLET.
EXHIBIT P9 A TRUE COPY OF THE COMMUNICATION SENT BY THE PETITIONER TO THE SECRETARY, PANDALAM MUNICIPALITY RESPONDENTS' EXHIBITS EXHIBIT R1(A) TRUE COPY OF THE OWNERSHIP DETAILS KEPT IN THE MUNICIPALITY REGISTER IN CONNECTION WITH THE BUILDING WHERE THE RETAIL OUTLET SITUATED EXHIBIT R1 (B) TRUE COPY OF THE NOTICE ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT DATED 10.08.2021 EXHIBIT R5(A) TRUE COPY OF THE CHANGE OF OWNERSHIP OF BUILDING BEARING NO.6/893(1) (OLD NO.6/893A) DATED 9.8.2021 BY PANDALAM MUNICIPALITY W.P.(C)No.16942 of 2021 17 EXHIBIT R5(B) TRUE COPY OF THE DEMAND NOTICE FOR REMITTANCE OF PROPERTY TAX FOR BUILDING BEARING NO.6/893 BY PANDALAM MUNICIPALITY DATED 9.8.2021 EXHIBIT R5(C) TRUE COPY OF THE ORDER DATED 11.08.2021 BY THE MUNICIPAL SECRETARY OF PANDALAM MUNICIPALITY EXHIBIT R4(A) THE TRUE COPY OF THE LETTER DATED 01.12.2011 ISSUED BY THE 4TH RESPONDENT, ALONG WITH THE POSTAL ACKNOWLEDGMENT RECEIPT DATED 02.12.2011 EXHIBIT R4(B) THE TRUE COPY OF THE INDEMNITY DEED DATED 18.06.1997 EXECTUED BETWEEN THE LANDOWNERS AND 4TH RESPONDENT EXHIBIT R4(C) TRUE COPY OF THE LETTER DATED 24.05.1968 ISSUED BY MR.PK YOHANNAN (PRE-DECESSORS OF THE RESPONDENTS 5 & 6) EXHIBIT R4(D) TRUE COPY OF THE LETTER DATED 12.10.1970 ISSUED BY MR.PK YOHANNAN (PRE-DECESSORS OF THE RESPONDENTS 5 & 6)