Gireesh vs State Of Kerala
2022 Latest Caselaw 8458 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
         THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
 WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
                       WP(C) NO. 24040 OF 2021
PETITIONER/S:

               GIREESH, AGED 42 YEARS, S/O CHANDRAN,
               ATHIYARATH HOUSE, KADUKUTTY DESOM, VADAKKUMURI
               VILLAGE, CHALAKUDY TALUK,
               THRISSUR DISTRICT, PIN-680308.
               BY ADV N.L.BITTO
RESPONDENT/S:

    1          STATE OF KERALA
               REPRESENTED BY THE SECRETARY TO THE GOVERNMENT,
               LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT
               SECRETARIAT, THIRUVANANTHAPURAM-695001.
    2          KADUKUTTY GRAMA PANCHAYATH
               REPRESENTED BY THE SECRETARY, KADUKUTTY P.O,
               CHALAKUDY TALUK, THRISSUR DISTRICT, PIN-680308.
    3          ANTONY
               AGED 47 YEARS
               S/O CHAKKU, CHAKKALAKKAL HOUSE, KADUKUTTY DESOM,
               KALLUR VADAKKUMURI VILLAGE, CHALAKUDY TALUK,
               THRISSUR DISTRICT, PIN-680308.
               BY ADVS.
               SURYA MOHAN P.
               SAJEEVAN KURUKKUTTIYULLATHIL
               VISHNU PRABHAKAR V.S.
               GAYATHRI DEVIR
               V.PREMCHAND
OTHER PRESENT:

               SMT. VIDYA NARAYANAN SR.GP
        THIS    WRIT   PETITION     (CIVIL)    HAVING    COME    UP    FOR
ADMISSION       ON   06.07.2022,    THE     COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
                                                      -2-
W.P.(C). No. 24040 of 2021



                             P.V.KUNHIKRISHNAN, J.
                             ======================================================

                              W.P.(C) No. 24040 of 2021
                       =============================================================

                      Dated this the 6th day of July, 2022

                                          JUDGMENT

The above writ petition is filed with following prayers:

"i) Call for the records leading to Ext.P6 and issue writ of certiorari quashing the same.

ii) Issue a writ of mandamus or any other appropriate writ, order or direction commanding 2nd respondent not to proceed against the business conducting in shop room Nos. property of the petitioner further with regarding Ext.P4 and P5.

iii) To pass any such or further orders as the petitioner may seek and this Hon'ble Court deem fit to grant." (sic)

2. The petitioner is aggrieved by the issuance of Ext.P6

closure notice without considering Exts.P4 and P5 application

for licence along with representation to consider the same

without consent from the landlord. According to the petitioner,

there is dispute regarding the payment of rent between the

petitioner and his landlord. Rent control petition was pending

W.P.(C). No. 24040 of 2021

before the Rent Control Court and the same is now pending

before the appellate authority. According to the petitioner, the

petitioner has got licence from 2014 onwards and he is

conducting the shop from 2014 onwards. Now the petitioner

applied for renewal of licence without the consent of landlord.

But the Panchayat is not considering the same. The petitioner

relies on the judgment of the Apex Court in Sudhakaran v.

Corporation of Trivandrum [2016 (3) KHC 803]. Hence,

this writ petition is filed.

3. Heard the counsel for the petitioner and the counsel

appearing for the Panchayat. I also heard the counsel appearing

for the 3rd respondent.

4. The counsel for the petitioner reiterated his

contentions in the writ petition. The counsel submitted that the

petitioner will be satisfied if Ext.P4 is directed to be considered

in the light of the judgment of the Apex Court, in which it is

W.P.(C). No. 24040 of 2021

stated that the consent of landlord is not necessary for renewal

of the licence application. The counsel for the Panchayat and

the counsel for the 3rd respondent opposed the same. The

relevant portion of the decision in sudhakaran's case (supra)

is extracted hereunder:

"8. After due consideration of the issues involved, we find merit in the submission made on behalf of the appellant. The statutory provision already quoted above shows that the requirement of consent of landlord is applicable only when a person intends to obtain a licence for the first time. Renewal or subsequent application for obtaining licence on expiry of the period of the existing licence, during the currency of the tenancy, is not applicable for obtaining licence. Even in the case of application for obtaining licence for the first time, the tenant cannot be deprived of running lawful business merely because the landlord withheld the consent. Valid tenancy itself has implied authority of the landlord for legitimate use of the premises by the tenant."

5. When an application is pending before the

Panchayat, it is the duty of the Panchayat to consider the same

and pass appropriate orders in accordance to law. Admittedly,

W.P.(C). No. 24040 of 2021

no final order is passed in Ext.P4 application. If that be so,

there can be a direction to the 2nd respondent to consider Ext.P4

and pass appropriate orders it in.

6. The counsel for the 3rd respondent submitted that the

prayer in the writ petition is against Ext.P6 order. The counsel

also submitted that Ext.P4 is not a renewal application. These

are matters to be considered by the 2nd respondent at the time of

consideration of Ext.P4. But I make it clear that the consent of

the landlord is not necessary for renewal of licence application.

It is also made clear that, if there is any defect in Ext.P4

application, the Panchayat can issue directions, in accordance to

law, and the petitioner can cure the defects also on receiving

such notices.

Therefore, this writ petition is disposed of in the following

manner:

W.P.(C). No. 24040 of 2021

1. The 2nd respondent is directed to consider Ext.P4 application and pass appropriate orders in it, as expeditiously as possible, at any rate, within three weeks from the date of receipt of a copy of this judgment without insisting consent of the landlord.

2. Before passing final orders in Ext.P4 application, an opportunity of hearing should be given to the petitioner and the 3rd respondent.

3. All the contentions raised by the 3rd respondent in the counter affidavit are left open and he is free to agitate the same before the 2nd respondent.

sd/-

P.V.KUNHIKRISHNAN JUDGE das

W.P.(C). No. 24040 of 2021

APPENDIX OF WP(C) 24040/2021

PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE STAY ORDER IN IA 4697 OF 2018 I RCA OF 2018 OF THE RENT CONTROL APPELLATE AUTHORITY THRISSUR DATED 12.04.2019.

Exhibit P2 A TRUE COPY OF THE OBJECTION FILED THE 2ND RESPONDENT HEREIN DATED 26.09.2021.

Exhibit P3 A TRUE COPY OF THE NOTICE ISSUED BY THE KADUKUTTY PANCHAYATH DATED 6.10.2021.

Exhibit P4 A TRUE COPY OF THE APPLICATION FOR LICENCE SUBMITTED BY THE PETITIONER DATED 20.10.2021.

Exhibit P5 A TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER DATED 20.10.2021.

Exhibit P6 A TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 29.10.2021.

Exhibit P7 A TRUE COPY OF THE JUDGMENT PASSED BY THE APEX COURT REPORTED AS 2016 (3) KHC 803 DATED 5/7/2016.