V.Mammu vs The Excise Commissioner
2022 Latest Caselaw 1536 Ker

                     IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                      PRESENT
                     THE HONOURABLE MR. JUSTICE SATHISH NINAN
         TUESDAY, THE 15TH DAY OF FEBRUARY 2022 / 26TH MAGHA, 1943
                             WP(C) NO. 22193 OF 2021
PETITIONER:

              V.MAMMU
              AGED 68 YEARS
              S/O. AHAMMEDKUTTY, EXCEL COTTAGE, PETTA, FEROKE P.O.,
              KOZHIKODE DISTRICT-673 006

              BY ADV R.K.MURALEEDHARAN


RESPONDENTS:

     1        THE EXCISE COMMISSIONER
              NANDAVANAM, THIRUVANANTHAPURAM-695 033

     2        THE JOINT COMMISSIONER OF EXCISE,
              O.P.RAMAN ROAD, THADAMBATTUTHAZHAM, KOZHIKOIDE-673 020

     3        THE DEPUTY COMMISSIONER OF EXCISE,
              CIVIL STATION, KOZHIKODE-673 020

     4        K.T.JOSEPH,
              THERSA GARDEN, CHETTIKULAM, ELATHUR P.O., KOZHIKODE
              DISTRICT-673303

     5        M/S HOTEL CALICUT GATE,
              REP BY ITS MANAGING PARTNER, THERSA GARDEN, CHETTIKULAM,
              ELATHUR P.O., KOZHIKODE DISTRICT-673303

              BY ADVS.
              NIREESH MATHEW
              M.G.KARTHIKEYAN
              SMT.K.M.RASHMI, SR. GOVT. PLEADER




     THIS     WRIT    PETITION   (CIVIL)   HAVING   COME   UP   FOR   ADMISSION   ON
15.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                         SATHISH NINAN, J.
             = = = = = = = = = = = = = = = = = =
                   W.P.(C) No.22193 of 2021
             = = = = = = = = = = = = = = = = = =
          Dated this the 15th day of February, 2022

                        J U D G M E N T

The petitioner is the co-owner of a commercial

building. The building is taken on lease by the 4 th

respondent, for conducting a bar hotel. Ext.P1 is the

lease agreement between the parties. It is dated

18.08.2017. As per Ext.P1, the term of lease is for five

years from 01.08.2017.

2. On 08.10.2020, the 4th respondent issued Ext.P2

notice, terminating the lease with effect from

31.03.2021. As per Ext.P3 dated 23.11.2020, the

petitioner accepted the termination. However,

thereafter, the 4th respondent submitted an application

for renewal of FL-3 licence for the premises with effect

from 01.04.2021. In spite of the objections raised by

the petitioner and the other co-owners, the authorities

renewed the licence. Thereupon the petitioner approached

this Court in W.P.(C) No.8701/2021. This Court as per W.P.(C) No.22193 of 2021

Ext.P8 judgment dated 12.08.2021 directed the

authorities to consider the objection. Pursuant thereto,

Ext.P10 order dated 26.09.2021 has been issued rejecting

the objection. The said order is under challenge in this

writ petition.

3. Heard Sri.R.K.Muralidharan, learned counsel

appearing on behalf of the petitioner, Sri.M.G.

Karthikeyan, the learned counsel appearing on behalf of

respondents 4 and 5 and Smt.K.M.Rashmi, the learned

Government Pleader.

4. To overrule the objections of the petitioner,

the third respondent has stated that, no document

evidencing termination of the lease agreement was

produced.

5. Clause-8 of Ext.P1 lease agreement deals with

"TERMINATION". Clause 8.1 of Ext.P1 reads thus:-

"8.1-This agreement shall terminate by

mutual agreement by the parties after giving a

notice of six months."

W.P.(C) No.22193 of 2021

6. Section 111(e) of the Transfer of Property Act,

1882 provides for determination of lease on surrender by

the lessee. As per Ext.P2 notice, the 4 th respondent

lessee has terminated the lease by surrender with effect

from 31.03.2021. As per Ext.P3, the petitioner has

accepted the surrender. Both the notices have been

referred to by the authority. Therefore, the third

respondent is not right in his stand that no document

evidencing termination of the lease arrangement is

produced.

7. The learned counsel for the petitioner refers to

the judgment of the Apex Court in Calcutta Credit Corporation

Ltd. and Anr. v. Happy Homes (Private) Ltd. [1968 SC 471] and a

Division Bench of this Court in Sulaikha Beevi v. K.C.Mathew

[1997 (1) KLT 69] to contend that, for determination of

tenancy at the instance of the tenant, actual delivery

of possession is not necessary.

W.P.(C) No.22193 of 2021

8. Be that as it may, in the light of the above, it

is for the third respondent to reconsider the objection

in the light of the documents as above and pass

appropriate orders.

9. Accordingly Ext.P10 order is quashed. The third

respondent shall pass fresh orders on the objections

urged by the petitioner regarding renewal of FL3 licence

to respondents 4 and 5. Let orders be passed after

affording an opportunity of hearing to the parties and

within a period of one month from the date of receipt of

a copy of this judgment. Writ Petition is allowed as

above.

Sd/-

SATHISH NINAN JUDGE

kns/-

//True Copy// P.S. to Judge APPENDIX OF WP(C) 22193/2021

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE REGISTERED LEASE AGREEMENT WITH THE 1ST PETITIONER, HIS BROTHERS AND 4TH RESPONDENT DATED 16.08.2017

Exhibit P2 A TRUE COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER DATED 08.10.2020

Exhibit P3 A TRUE COPY OF THE REPLY SENT BY REGISTERED POST ACKNOWLEDGMENT DUE TO THE 4TH RESPONDENT DATED 23.11.2020

Exhibit P4 A TRUE COPY OF THE ACKNOWLEDGMENT CARD

Exhibit P5 A TRUE COPY OF THE NOTICE ISSUED TO THE 1ST RESPONDENT BY REGISTERED POST ACKNOWLEDGMENT WITH COPY TO THE RESPONDENTS 2 AND 3 DATED 08.03.2021

Exhibit P6 TRUE COPY OF THE POSTAL RECEIPT AND THE ACKNOWLEDGMENT CARD RECEIVED FROM 2ND RESPONDENT

Exhibit P7 A TRUE COPY OF THE FL-3 LICENSES RENEWAL CERTIFICATE DATED 31.03.2021

Exhibit P8 TRUE COPY OF THE JUDGMENT DATED 12.08.2021 PASSED BY THIS HON'BLE COURT IN WPC NO.8701/2021

Exhibit P9 A TRUE COPY OF THE WRITTEN SUBMISSION SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT

Exhibit P10 TRUE COPY OF THE ORDER NO.D6-1063/2021 DATED 26.09.2021 PASSED BY THE 3RD RESPONDENT

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