Rajitha Suresh vs Nadathara Grama Panchayath & ...
2021 Latest Caselaw 13707 Ker

W.P.(C) No.29974/2011               1



                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                 THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
          FRIDAY, THE 2ND DAY OF JULY 2021 / 11TH ASHADHA, 1943
                         WP(C) NO. 29974 OF 2011
PETITIONER:

              RAJITHA SURESH
              W/O.SURESH, KATTUNGAL HOUSE, P.O.MULAYAM,, VALAKKAVU,
              NADATHARA, THRISSUR DISTRICT.
              BY ADV SRI.RAJIT


RESPONDENTS:

      1       NADATHARA GRAMA PANCHAYATH
              KOZHUPULLI P.O., MOORKANIKKARA, THRISSUR DISTRICT,
              REPRESENTED BY THE SECRETARY.
      2       THE SECRETARY
              NADATHARA GRAMA PANCHAYATH, KOZHUPULLI P.O.,
              MOORKANIKKARA, THRISSUR DISTRICT.
      3       MEENAKSHI W/O.KUMARAN, KATTUNGAL HOUSE
              P.O.MULAYAM, VALAKKAVU, NADATHARA, THRISSUR DISTRICT.
      4       INDIRA SUKUMARAN W/O.SUKUMARAN
              KATTUNGAL HOUSE, P.O.MULAYAM, VALAKKAVU,, NADATHARA,
              THRISSUR DISTRICT.
              BY ADVS.
              SMT.P.K.PRIYA FOR R3
              SRI.T.C.SURESH MENON FOR R1 & R2


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
02.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.29974/2011                    2




                                   JUDGMENT

Petitioner is a resident of Thrissur District within the limits of Nadathara

Grama Panchayath. Petitioner is running a grocery shop in the building bearing

door No.VI/28 of the Nadathara Grama Panchayath belonging to the 3 rd

respondent. Case of the petitioner is that at the time when the petitioner applied

for licence to the Secretary of the Grama Panchayath, Exhibit P1 consent was

given and secured Exhibit P3 licence bearing No.A5-55/2006-07 dated 13.9.2006.

Petitioner is the daughter-in-law of the 3rd respondent.

2. It is the case of the petitioner that the said licence was being renewed by

the 2nd respondent - Secretary of the Grama Panchayath every year and finally it

was renewed upto 23.4.2011, evident from Exhibit P4. It seems a dispute arose

by and between the husband of the petitioner and the mother-in-law of the

petitioner viz., 3rd respondent, in regard to the ownership of the shop room in

which the petitioner is conducting business. Accordingly O.S.No.1437/2011 is

pending consideration before the Munsiff Court, Thrissur.

3. Matters being so, 3 rd respondent has filed a complaint before the

Panchayath stating that building belonging to the 3rd respondent has been

transferred by her to the 4th respondent, who is none other than the daughter of

the 3rd respondent and therefore, petitioner has to secure consent from the 4 th

respondent for continuing the business and requested the Panchayath to take

necessary action in that regard. It was thereupon that the impugned notice

Exhibit P5 was issued by the Grama Panchayath to the petitioner, to which

petitioner has submitted Exhibit P6 reply. However, the Secretary of the Grama

Panchayath rejected the explanation offered by the petitioner as per Exhibit P7

order dated 27.10.2011 and directed the petitioner to produce consent from the

owner of the building within three days or else to show cause why licence shall

not be cancelled. These are the background facts available for consideration.

4. Third respondent has filed a counter affidavit basically stating that the 3 rd

respondent has transferred the building to the 4 th respondent. Therefore, the 3rd

respondent has no manner of interest in the subject issues raised by the

petitioner. Though notice was served on the 4th respondent, no counter is filed.

5. The question emerges for consideration is whether, when initially a

consent was granted by the owner of the building to secure licence during the

continuance of tenancy, any consent from the landlord is required for its

renewal ? There is no provision under the Kerala Panchayat Raj Act in respect of

the matter as regards a consent for grant of the licence or secure any consent for

renewal of the licence. However, there is a clear cut provision under section 492

of the Kerala Municipality Act, 1994 as to the manner in which the said aspect is

to be tackled by the Secretary of the Municipality.

6. It is an admitted fact that the petitioner was put in possession of the

building by the 3rd respondent, who is none other than the mother-in-law of the

petitioner, who in turn has transferred the building in question to the 4 th

respondent - daughter. It is clear and evident that once the petitioner was put in

possession of the building as a tenant, then she is entitled to get protection of

the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965 and

she can only be evicted resorting to the provisions of the said Act. Therefore,

even if consent is not issued by the landowner and the licence is not renewed by

the Secretary of the Grama Panchayath, the tenant or the person in occupation

can be evicted in accordance with the provisions of the Act, 1965 only. If in any

case, the petitioner is not a tenant in the building on the basis of any rental

arrangement, once it is admitted that she is put in possession, then she cannot

be forcibly evicted from the premises, and otherwise than in accordance with

law. When the landlord has given initial consent, then it cannot be said that the

Secretary is entitled under the provisions of law to insist for consent of the

landlord/building owner, for renewal of the licence. Licenses and premises are

dealt with under XXIA of the Kerala Panchayat Raj Act, 1994. Section 236 of the

Panchayat Raj Act specifically deals with the manner in which a licence

application is to be considered in an application filed by the occupant of a

building.

7. But I could not locate any provision wherein the Secretary of a Panchayath

can insist for consent from the landlord. But fact remains, the Secretary could

consider an application submitted by a person other than an owner of the

building initially for a licence, if and only when the landlord agrees to grant the

building on rent which has to be a basic requirement, failing which, there can be

humpteen number of complex situations putting landlords into difficulties. It may

be true, the tenant may produce a rent agreement along with an application

seeking a licence. But in order to protect the interests of the landlord, the

Secretary of the Grama Panchayat would be justified in insisting for a consent

initially. But when a consent was issued and the petitioner was put in possession

of the property, it may not be appropriate, legal and proper on the part of the

Secretary to insist the tenant to produce consent of the landlord to renew the

licence. The provisions of section 492 of the Kerala Municipalities Act would also

show that, if an initial consent is given by the landlord and produced by the

tenant, during renewals consent cannot be insisted upon, unless the person

submitting the application is a person other than the tenant put in possession by

the landlord. The principles of the said provisions could be taken into account for

drawing an analogy to deal with the instant case since the issue at hand is

substantially and materially the same.

8. Taking into account the facts, circumstances and the law, I am of the

considered opinion that Exhibit P7 order passed by the Secretary of the Grama

Panchayath directing the petitioner to produce consent for renewal of the licence

is arbitrary and illegal, liable to be interfered with exercising the power of judicial

review conferred under Article 226 of the Constitution of India. Accordingly,

Exhibit P7 order of the Secretary of the Nadathara Grama Panchayath dated

27.10.2011 bearing No.A3-4756/11 is herewith quashed and further declare that

the Secretary is not entitled to insist for consent for renewal of the licence from

the petitioner as long as he continues in possession in accordance with law. I am

also informed that by virtue of the interim order granted by this Court in this writ

petition, the licence was being renewed, which is placed on record.

The writ petition is allowed accordingly but without costs .

Sd/-

                                                       SHAJI P.CHALY

smv                                                         JUDGE



                              APPENDIX
PETITIONER'S EXHIBITS

EXHIBIT P1: TRUE COPY OF THE CONSENT GIVEN BY THE 3RD RESPONDENT TO THE PETITIONER.

EXHIBIT P2: TRUE COPY OF THE APPLICATION FORM SUBMITTED BY THE PETITIONER AT THE TIME OF APPLICATION FOR LICENCE DT.23.08.2006.

EXHIBIT P3: TRUE COPY OF THE LICENCE BEARING NO.A5-55/2006-07 DT.13.9.2006 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P4: TRUE COPY OF THE LICENCE BEARING NO.66/2011-12 DT.23.04.2011 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

EXHIBIT P5: TRUE COPY OF THE NOTICE BEARING NO.A3-4756/2011 DT.24.09.2011 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P6: TRUE COPY OF THE REPLY DT.04.10.2011 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.

EXHIBIT P7: TRUE COPY OF THE LETTER BEARING NO.A3-4756/11 DT.27.10.11 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

RESPONDENTS' EXHIBITS:

EXHIBIT R3(a): TRUE COPY OF THE ASSIGNMENT DEED DATED 29.9.2010.

EXHIBIT R3(b): TRUE COPY OF THE TAX RECEIPT DATED 14.9.2010 PAID BY THE 3RD RESPONDENT TO THE PANCHAYATH.