K.S.Hydrose vs Kunnathunadu Grama Panchayat
2021 Latest Caselaw 19368 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
             THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                    &
                THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
    THURSDAY, THE 16TH DAY OF SEPTEMBER 2021 / 25TH BHADRA, 1943
                           WA NO. 1181 OF 2021
  AGAINST THE JUDGMENT IN WP(C) 16225/2021 OF HIGH COURT OF KERALA,
                                ERNAKULAM
APPELLANT:
             K.S.HYDROSE
             AGED 62 YEARS
             S/O.SYED MOHAMMED, KUMMATTU PUTHEMPURA HOUSE, PATTIMATTOM
             POST, ERNAKULAM DISTRICT, PIN-683 562
             BY ADV P.K.RAVI SANKAR
RESPONDENTS:
     1     KUNNATHUNADU GRAMA PANCHAYAT,
           REPERESENTED BY ITS SECRETARY, KUMARAPURAM POST,
           ERNAKULAM DISTRICT, PIN-683 565
     2     SECRETARY,
           KUNNATHUNADU GRAMA PANCHAYAT, KUMARAPURAM POST,
           ERNAKULAM DISTRICT, PIN-683 565
     3     STATION HOUSE OFFICER,
           KUNNATHUNADU POLICE STATION, PATTIMATTOM POST,
           ERNAKULAM DISTRICT-683 562
     4     M.K.SASI,
           S/O. MANALVARIYIL VELAYUDHAM RESIDING AT 'BHAGYA',
           KAITHAKKAD KARA, PATTIMATTOM POST, ERNAKULAM
           DISTRICT,PIN-683 562
     5     M/S KITEX CHILDRENSWEAR LIMITED,
           MANAGER ADMINISTRATION, KIZHAKKAMBALAM,
           ERNAKULAM DISTRICT-683 562

             BY ADV DR.ABRAHAM P.MEACHINKARA, SC FOR R1 AND R2,
             SRI.TEK CHAND, SENIOR GOVERNMENT PLEADER FOR R3
             SRI.SAJEEV KUMAR K. GOPAL FOR R4

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16.09.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.No.1181 of 2021                          2


                                                                              CR



                                         JUDGMENT

Dated this the 16th day of September, 2021

SHAJI P.CHALY,J.

Writ petitioner has filed the appeal, challenging the judgment of the learned

single Judge dated 6.9.2021 in W.P.(C) No.16225 of 2021, wherein the appellant has

sought to quash Exhibit P4 communication issued by the Secretary of Kunnathunad

Grama Panchayat - the 2nd respondent dated 9.8.2021, whereby the appellant was

directed to stop the functioning of the lodge illegally conducted in the first floor of the

building bearing door No.VII/1143-B, in accordance with the directions in the order

dated 2.8.2021 in W.P.(C) No.15093/2021, apparently filed by the landlord against the

writ petitioner herein. Landlord is the 4th respondent in the writ petition and the

instant appeal. The learned single Judge, after assimilating the facts and figures, held

that the lodge conducted in the building in question is an illegal act and therefore,

Exhibit P4 impugned notice issued by the Secretary of the Grama Panchayat was legal

and valid. It is thus challenging the legality and correctness of the findings and

directions, the appeal is filed.

2. Brief material facts for the disposal of the appeal are as follows; appellant

took on rent ground floor and first floor of the building in question from the 4 th

respondent landlord viz., M.K.Sasi, apparently for conducting the business of

Supermarket as per a lease deed dated 8.4.2019 bearing registration No.2477 of 2019

of the Office of Sub Registrar, Puthencruz. The case projected by the appellant was

that due to the present emergent situation of COVID -19 pandemic, the business of

the appellant was substantially reduced and therefore, the supermarket business was

compelled to be confined to the ground floor of the building. Thereupon, by virtue of

the liberty granted to the appellant by the landlord to sublease the building, appellant

sublet the building to the 5th respondent viz., M/s.Kitex Childrenswear Limited,

Kizhakkambalam, Ernakulam District on 24.1.2021. It was thereafter that Exhibit P4

was served on the appellant.

3. The sum and substance of the contention advanced by the appellant is that

appellant is not conducting any lodge in the first floor of the building though he has

sublet the same to the 5th respondent. It is also pointed out that the 5th respondent is

using the same for accommodating its staff. The paramount contention in the appeal

is that the Secretary of the Grama Panchayat did not afford the appellant any

opportunity of hearing before the impugned order was passed; that the learned single

Judge proceeded on a wrong assumption that a lodge was being conducted by the

appellant in the first floor of the building, whereas this Court in W.P.(C)

No.15093/2021 filed by the landlord only directed the Grama Panchayat and the

Secretary to ensure that any business, which requires licence including the lodge is

not conducted in the premises in question and therefore, the Secretary of the Grama

Panchayat ought to have conducted a due enquiry before issuing the impugned order;

and that apart it is contended that section 107 of the Travancore - Cochin Public

Health Act, 1955, (hereinafter called, 'the Act, 1955) mandates registration of "lodging

house" and "lodging house" is defined under section 2(22) of Act, 1955 to mean, " a

hotel, a boarding house, a choultry, a dharmasala or a rest house not maintained by

the Government or a local authority, an unlicensed emigration depot or any place

where, on payment, casual visitors are received and provided with sleeping

accommodation with or without food but does not include a students' hostel under

public or recognised control; or a house licensed under section 129 for

accommodation of visitors to a fair or festival; or retiring rooms and rest houses

provided by a railway administration and normally used by passengers or railway

servants or both.

4. Therefore, the sum and substance of the contention, relying upon the said

provision is that the definition makes it clear that lodging house meant under the Act,

1955 is a place where casual visitors are received and provided with sleeping

accommodation, however, the 5th respondent is only accommodating its staff and the

said arrangement would not make the premises a lodging house.

5. In fact the Grama Panchayat and the Secretary have filed a counter affidavit

in the writ petition basically contending that the building in question is a commercial

building, which was licensed only to conduct hypermarket and the owner of the

building has obtained the building permit and the building number for commercial

occupancy only wherein a lodge cannot be conducted. According to the Secretary of

the Grama Panchayat, Panchayat is empowered under section 107 of the Act, 1955 to

register a lodging house and the section clearly specifies that no person shall keep a

lodging house or receive a lodger, unless he is registered as the keeper thereof under

the Act. The basic contention advanced by the Secretary of the Grama Panchayat is

that petitioner has not secured any registration or licence for running lodge or allied

purposes from the Panchayat.

6. We have heard learned counsel for appellant Sri.V.K.Ravisankar, Dr.Abraham

P. Meachinkara for the Grama Panchayat and the learned Senior Government Pleader

Sri.Tek Chand for the State Official and perused the pleadings and materials on

record.

7. Learned counsel for the appellant addressed arguments on the basis of the

submissions discussed above. The paramount contention advanced is that the

accommodation of staff of the 5th respondent company cannot be treated as a lodging

business going by section 2(22) of Act, 1955 since it only deals with casual visitors

received in a building. We are unable to agree with the learned counsel for the

appellant for the basic reason that appellant has carved out a portion of the definition

in order to drive home the said point, whereas on a proper understanding of the

definition of lodging house it is clear that it includes a hotel, a boarding house etc.

which incidentally takes in a casual visitor also, and it is only misinterpreting the

definition to the advantage of the appellant such a contention is advanced, which can

never be sustained under law. Therefore, the contention so raised has no basis and

foundation to arrive at any conclusion as argued by the learned counsel. Whatever

that be the contention advanced by the Grama Panchayat in the writ petition is that

the building in question is a commercial building, wherein only commercial activities as

defined under the Kerala Panchayat Building Rules, 2019 can be carried on.

8. The said contention has much force and probative value because as per rule

25 of the Kerala Panchayat Building Rules, 2019, (hereinafter called, "Rules, 2019")

dealing with occupancy of buildings, it is clearly specified that all buildings existing or

hereinafter proposed shall be classified in one of the occupancies specified thereunder

according to the use or character of occupancy namely the following:

      Group A1        Residential
      Group A2        Lodging Houses & Special Residential
      Group B         Educational
      Group C         Medical/Hospital
      Group D         Assembly
      Group E         Office
      Group F         Mercantile/Commercial
      Group G1        Industrial - I
      Group G2        Industrial - II
      Group H         Storage
      Group I         Hazardous
      Group J         Multiplex Complex

9. Therefore, it is clear that commercial building and a mercantile building is

classified under Group F, whereas a residential building and lodging houses and

special residential are grouped under A1 and A2 category. Group 1 is further defined

under sub-rule (2)(a) of rule 25 of Rules, 2019 to mean the following:

"25(2)(a):) Group A1 - Residential Building shall include any building in which sleeping accommodation is provided for normal residential purposes, with or without cooking and/or dining facilities. They shall include one or multifamily dwellings, apartment buildings or residential flats. Small professional offices, small household business or spaces for advocates,

doctors, engineers, architects, chartered accountants, beauticians, tailors, photographers, videographers, telephone booth operators, computer professionals, typists, electrical or electronic equipment service professionals, not exceeding 50 sq. metres built-up area and used as part of principal residential occupancy are also included in this group. Crèches, daycare centres, children's nurseries, reading rooms, libraries and educational buildings not exceeding 200 sq. metres of built up area are also included in this group."

10. Similarly Group A2 is defined under clause (b) of sub-rule (2) of rule 25 of

Rules, 2019, as follows:

" Group A2 - Lodging Houses & Special Residential shall include all lodging or

rooming houses, seminaries/convents, orphanage, old age homes, dormitories,

tourist homes, tourist resorts (or by whatever name called), hostels, hotels with or

without conference halls, dining halls or assembly rooms."

11. On a proper analysis of the said provisions, it is clear that the buildings are

classified in accordance with their occupancy and permits are granted in terms of the

plans and application submitted accordingly by the owner of the land . Rule 4 of

Rules, 2019 deals with the essentiality of permit. Sub-rule (3) thereto specifies that no

person shall change the occupancy of an existing building from one group to another,

without first obtaining the permit from the Secretary of the Grama Panchayat. This

was exactly the point considered by the learned single Judge taking into account the

contention advanced by the Grama Panchayat. Even though the appellant has a

contention that appellant had the liberty to sublet the building as per the agreement

executed by and between the appellant and the landlord, if subletting is permitted, it

can only be let out in accordance with the provisions of the Kerala Panchayat Raj Act,

1994 and the Kerala Panchayat Building Rules, 2019.

12. The discussion made above would make it clear that it is in clear violation of

the laws, accommodation is being provided to the staff of the 5 th respondent

company, which is an admitted fact. The imperative expression "Shall" used in Section

4(3) of the Rules, 2019 makes it abundantly clear that without securing permission

for category change, a building cannot be used for any occupation other than the

occupancy for which permit was granted. Therefore, we have no hesitation to hold

that the learned single Judge was right in holding that without securing a category

change in contemplation of law, the appellant could not have conducted the lodging

business. There is no case for the appellant that the category change was sought for

by the appellant or the landlord. Yet another significant aspect generates in our mind

is the question as to the maintainability of the writ petition, because the impugned

order was passed by the secretary of the Grama Panchayat on the basis of an interim

direction issued in an earlier writ petition, and if at all the appellant had any grievance

it ought have been agitated in that writ petition itself.

13. In that view of the matter, we do not find any legal or factual error while

exercising the discretion by the learned single Judge under Article 226 of the

Constitution of India against the appellant, liable to be interfered with, in an intra

court appeal filed under section 5 of the Kerala High Court Act, 1958.

Needless to say, writ appeal fails, accordingly it is dismissed.

Sd/-

S. MANIKUMAR, CHIEF JUSTICE.

Sd/-

                                                    SHAJI P. CHALY,
smv                                                        JUDGE.