Rajesh Khanna vs Kollam Corporation
2021 Latest Caselaw 14618 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
     WEDNESDAY, THE 14TH DAY OF JULY 2021 / 23RD ASHADHA, 1943
                        WP(C) NO. 17597 OF 2016
PETITIONER/S:

          RAJESH KHANNA,
          M.C.NO XXVI/426 KANAKALAYAM, CURZON NAGAR, OPP
          SUMANGALI AUDUTORIUM, CUTCHERY WARD , KOLLAM

          BY ADVS.
          SRI.S.SREEKUMAR (SR.)
          SRI.LEO GEORGE



RESPONDENT/S:

    1     KOLLAM CORPORATION
          REPRESENTATION BY ITS SECRETARY, KOLLAM CORPORATION
          KOLLAM 691001

    2     THE SECRETARY
          KOLLAM CORPORATION KOLLAM - 691001

    3     HEALTH OFFICER
          DEPARTMENT OF HEALTH, KOLLAM CORPORATION, KOLLAM 691001

          BY ADV SRI.M.K.CHANDRA MOHAN DAS,SC,KOLLAM MPT




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 17597 OF 2016
                                         2

                                  JUDGMENT

This writ petition is filed by the petitioner, allegedly, owner of building

bearing Door No.XXVI/426, within the limits of the Kollam Corporation,

challenging Ext.P12 order dated 02.05.2016, whereby, the trade licence

sought for by the petitioner to conduct the money lending business was

rejected, assigning the reason that, a suit is pending before a competent Civil

Court, filed by a third person, and unless and until the proceedings in the suit

is completed, no licence can be issued to the petitioner.

2. According to the petitioner, petitioner has purchased the building,

evident from Ext.P1 registered Sale Deed, from the plaintiffs in O.S.

No.115/2010. After the purchase, petitioner has paid the land tax to the

property in question and the property tax to the Municipal Corporation. Fact

remains, the plaintiffs in the suit aforesaid have kept their articles in the

building purchased by the petitioner stating that, when they acquire a

building, they will transfer the same. The case projected by the petitioner is

that, the plaintiffs in the suit, without keeping their promise, has approached

the Civil Court, claiming that Ext.P1 is a sham document executed by and

between the parties. It is also stated that, the documents produced by the

petitioner along with the writ petition shows that the petitioner is the owner

of the property and therefore, the Secretary of the Municipality was duty WP(C) NO. 17597 OF 2016

bound to consider those aspects and issue trade licence. It is also submitted

that, since the impugned order was stayed by this Court, every year an

application was being submitted by the petitioner before the Secretary of the

Corporation, however, no decisions were taken by the Secretary, consequent

to which the petitioner has secured a deemed licence to carry on the business.

3. A statement is filed for and on behalf of the Kollam Corporation

contending as follows:

"3. It is submitted that the petitioner conducted a money lending business in building No.MCXXVI/426 in the name and style 'R.K.Finance'. As per the records, licence has been issued to the said institution during 2009-10. the licence period expired on 31.03.2010.

4. The building comes under Residential Occupancy. A civil dispute is pending regarding the ownership of the building. A criminal case is also pending against the petitioner in respect of the D & O licence obtained by him during 2009-10.

5. It is submitted that Exhibit P8 is a suit filed by the plaintiffs therein who claims to be the real owners of the building which allegedly arrogated by the petitioner.

The suit is for setting aside Sale Deed in favour of the petitioner executed by the plaintiffs therein. The plaintiffs executed Exhibit P1 Sale Deed under economic duress as a security for a loan for Rs.10 lakhs borrowed from the petitioner. It is alleged that the petitioner has WP(C) NO. 17597 OF 2016

adopted underhand methods to dispossess the subject matter property from the plaintiffs in Exhibit P8 suit."

4. Therefore, according to the Corporation, they were justified in

declining the trade licence to the petitioner.

5. I have heard learned Counsel for the petitioner Sri. Leo Goerge and

Sri. Harikrishnan M.S. representing Sri. M.K.Chandra Mohan Das, learned

Standing Counsel for the Kollam Corporation and perused the pleadings and

the materials on record.

6. The sole question emerges for consideration is, whether any

interference is required to Ext.P12 order passed by the Secretary dated

02.05.2016, whereby, the trade licence sought for by the petitioner was

declined assigning the reason that a Civil Suit is pending before a competent

Civil Court in respect to the ownership of the building and therefore, the trade

licence cannot be granted. It is an admitted fact that the plaintiffs in the suit

are not made parties to the proceedings. I am also informed that the

application for the trade licence for the year 2021-2022 was submitted by the

petitioner, however, no decision was taken and therefore, according to the

petitioner, a deemed licence was granted to the petitioner.

7. Ext.P8 is the suit proceedings in respect of O.S. No.115/2010. I am

informed by learned Counsel for the petitioner as well as learned counsel WP(C) NO. 17597 OF 2016

appearing for the Corporation that the suit is still pending before the Sub

Court, Kollam. Anyhow, the documents produced before this Court such as

the registered sale deed, tax receipt issued by the revenue authorities, the

property tax receipt issued by the Municipal Corporation and Ext.P3

certificate dated 18.02.2011, issued by the Secretary of the Corporation, show

that the building bearing Door No.XXVI/426 is remaining in the name of the

petitioner and one Reeja.

8. When the Secretary of the Corporation is considering a trade licence,

the Secretary needs to ascertain as to whether there is sufficient records

produced to establish the ownership of the building. Mere pendency of a suit

without any interim direction to the Municipal Secretary is not a reason for

declining the trade licence, especially when the trade licence was being issued

by the Secretary of the Corporation prior to the same. Anyhow, the petitioner

has not cared to make the plaintiffs in the suit parties to this writ petition and

therefore, I am unable to ascertain their views. Anyhow, this matter was

pending before this Court for the past five years and it is only appropriate that

the writ petition is disposed of with suitable directions.

9. If and when the petitioner is submitting an application for renewal of

the trade licence for the year 2022-2023, the Secretary of the Corporation

shall issue notice to the plaintiffs in O.S. No.115/2010 namely, Deepu WP(C) NO. 17597 OF 2016

Ramakrishnan, Lalithambila and Diju Ramakrishnan and ascertain the

factual circumstances. If it is admitted that the registered deed was executed

by the plaintiffs in favour of the petitioner and others, then, unless and until

the competent Civil Court enters into a finding interfering with the veracity of

the registered document, the Secretary has to necessarily issue the trade

licence. It is important to note that registration of a sale deed is an official act

presumption of which is protected under Section 114(e) of the Indian

evidence act and therefore, unless and until the presumption is rebutted, the

contents can only be presumed as the existence of any fact, which it thinks

likely to have happened regard being had to the common course of natural

events and human conduct. Needless to say, if the Civil Court decides

otherwise, the parties would be guided by the judgment and decree passed by

the Civil Court. Till such time, if the situation explained above is the actual

factual situation, it is for the Secretary to renew the trade licence, subject to

the outcome of O.S. No.115/2010 on the files of the Sub Court, Kollam.

Therefore, taking into account the above aspects, Ext.P12 order passed by the

Secretary deliberated above, will stand quashed. But it is made clear that the

findings and observations contained above, shall not in any manner prejudice

the suit proceedings.

WP(C) NO. 17597 OF 2016

The writ petition is allowed to the above extent.

Sd/-

SHAJI P.CHALY JUDGE

uu 14.07.2021 WP(C) NO. 17597 OF 2016

APPENDIX OF WP(C) 17597/2016

PETITIONER'S EXHIBITS:-

EXHIBIT P1 TRUE COPY OF SALE DEED NO 1615/2008 OF ERAVIPURAM SRO, DTD 14/4/2008

EXHIBIT P2 TRUE COPY OF THE UPTO DATE BASIC TAX RECEIPT DTD 16/4/2016

EXHIBIT P3 TRUE COPY OF THE CERTIFICATE ISSUED BY THE 2ND RESPONDENT IN THE NAME OF THE PETITIONER AND HER HUSBAND DTD 18/2/2011

EXHIBIT P4 TRUE COPY OF THE UPTO DATE PROPERTY TAX RECEIPT DTD 16/4/2016 ISSUED BY THE KOLLAM CORPORATION TO PETITIONER AND HIS WIFE

EXHIBIT P5 TRUE COPY OF THE CERTIFICATE OF REGISTRATION ISSUED BY THE INSPECTING ASSISTANT COMMISSIONER, KOLLAM TO THE PETITIONER

EXHIBIT P6 TRUE COPY OF THE PRINT OUT OF THE RECEIPT EVIDENCING PAYMENT OF RENEWAL FEES WITH RESPECT TO THE LICENSE FEES UNDER THE KERALA MONEY LENDERS ACT

EXHIBIT P7 TRUE COPY OF THE LICENCE ISSUED BY THE KOLLAM CORPORATION AS PROVIDED UNDER SECTION 447 OF THE KERALA MUNICIPALITY ACT 1994 FOR THE PERIOD 2009-2010

EXHIBIT P8 TRUE COPY OF THE PLAINT IN OS NO 115/2010 BEFORE THE SUB COURT, KOLLAM DTD 9/2/2010

EXHIBIT P9 TRUE COPY OF THE COMMUNICATION BEARING NO R5/18978/15 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER AND HIS WIFE DTD 25/4/2015

EXHIBIT P10 TRUE COPY OF THE APPLICATION FOR D & O LICENCE FOR THE YEAR 2015-16 DTD 17/3/2015

EXHIBIT P10(A) TRUE COPY OF THE APPLICATION FOR RENEWAL OF D & O LICENCE WITH RESPECT TO THE BUSINESS CARRIED ON BY THE PETITIONER IN BUILDING WP(C) NO. 17597 OF 2016

BEARING MC NO XXVI/426 FOR THE YEARS 2010-11 DTD 17/3/2016

EXHIBIT P10(B) TRUE COPY OF THE APPLICATION FOR RENEWAL OF D & O LICENCE WITH RESPECT TO THE BUSINESS CARRIED ON BY THE PETITIONER IN BUILDING BEARING MC NO XXVI/426 FOR THE YEARS 2011-12 DTD 17/3/2016

EXHIBIT P10(C) TRUE COPY OF THE APPLICATION FOR RENEWAL OF D & O LICENCE WITH RESPECT TO THE BUSINESS CARRIED ON BY THE PETITIONER IN BUILDING BEARING MC NO XXVI/426 FOR THE YEARS 2012-13, DTD 17/3/2016

EXHIBIT P10(D) TRUE COPY OF THE APPLICATION FOR RENEWAL OF D & O LICENCE WITH RESPECT TO THE BUSINESS CARRIED ON BY THE PETITIONER IN BUILDING BEARING MC NO XXVI/426 FOR THE YEARS 2013-14 DTD 17/3/2016

EXHIBIT P10(E) TRUE COPY OF THE APPLICATION FOR RENEWAL OF D & O LICENCE WITH RESPECT TO THE BUSINESS CARRIED ON BY THE PETITIONER IN BUILDING BEARING MC NO XXVI/426 FOR THE YEARS 2014-15 DTD 17/3/2016

EXHIBIT P11 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER FOR RENEWAL OF E & O LICENCE FOR THE YEAR 2016-2017 TOGETHER WITH ANNEXURE, DTD 28/4/2016

EXHIBIT P12 TRUE COPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT ON EXT P11 APPLICATION