M/S. C.S.Alexander vs Pandalam Municipality
2022 Latest Caselaw 5172 Ker

W.P.(C)No.16942 of 2021                  1



                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
                      THE HONOURABLE MR. JUSTICE T.R.RAVI
       TUESDAY, THE 10TH DAY OF MAY 2022 / 20TH VAISAKHA, 1944
                            WP(C) NO. 16942 OF 2021
PETITIONER:

                M/S. C.S.ALEXANDER,
                REPRESENTED BY ITS MANAGING PARTNER,
                C.S.ALEXANDER, CHIRAMMEL VEEDU,
                MUNDANKKAVU, CHENGANOOR, PIN-689121.
                BY ADVS.
                SRI.ADARSH KUMAR
                SRI.K.M.ANEESH
                SRI.K.SANTHOSH KUMAR (KALIYANAM)
                SRI.BIJU VARGHESE ABRAHAM
                SRI.DILEEP CHANDRAN
                SRI.SHASHANK DEVAN


RESPONDENTS:

       1        PANDALAM MUNICIPALITY
                REPRESENTED BY ITS SECRETARY,
                MC ROAD JUNCTION, NEAR BUS STAND,
                PANDALAM, PATHANAMTHITTA, PIN-689501.
       2        THE MUNICIPAL SECRETARY,
                PANDALAM MUNICIPALITY
                MC ROAD JUNCTION, NEAR BUS STAND,
                PANDALAM, PATHANAMTHITTA, PIN-689501.
       3        THE MUNICIPAL HEALTH INSPECTOR,
                PANDALAM MUNICIPALITY,
                MC ROAD JUNCTION, NEAR BUS STAND,
                PANDALAM, PATHANAMTHITTA, PIN-689501.
       4        HINDUSTAN PETROLEUM CORPORATION LIMITED,
                REPRESENTED BY ITS CHIEF REGIONAL MANAGER,
                REGIONAL OFFICE AT TATAPURAM, PB NO.161,
                ERNAKULAM NORTH, COCHIN, PIN-682018.
                *ADDITIONAL RESPONDENT NOS. 5 & 6 IMPLEADED
 ADDL. R5 SIJU.C.ABRAHAM
          AGED 48 YEARS, S/O. LATE C.J.ABRAHAM,
          CHERIAMADOM HOUSE, THONNALLOOR MURI,
 W.P.(C)No.16942 of 2021                2


                PANDALAM VILLAGE, PANDALAM P.O.,
                PATHANAMTHITTA DISTRICT, PIN: 689501.
 ADDL. R6 SAJINI CHERIAMADOM ABRAHAM
          AGED 59 YEARS, D/O. LATE C.J.ABRAHAM,
          CHERIAMADOM HOUSE, THONNALLOOR MURI,
          PANDALAM VILLAGE, PANDALAM P.O.,
          PATHANAMTHITTA DISTRICT, PIN: 689501.

                ADDITIONAL RESPONDENTS 5 AND 6 IMPLEADED AS PER THE
                ORDER DATED 06.09.2021 IN I.A.01/2021 IN WP(C)
                16942/2021.
                BY ADVS.
                SMT.T.S.MAYA (THIYADIL)
                SRI M.GOPIKRISHNAN NAMBIAR
                SRI R.T.PRADEEP
                SMT.M.BINDUDAS
                SRI K.C.HARISH
                SRI K.JOHN MATHAI
                SRI JOSON MANAVALAN
                SRI KURYAN THOMAS
                SRI PAULOSE C. ABRAHAM
                SRI RAJA KANNAN
                SHRI.S.SUBHASH CHAND, SC, PANDALAM MUNICIPALITY



       THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
09.02.2022, THE COURT ON 10.5.2022 DELIVERED THE FOLLOWING:
 W.P.(C)No.16942 of 2021                        3



                                    T.R. RAVI, J.
                     --------------------------------------------
                              W.P.(C)No.16942 of 2021
                      --------------------------------------------
                        Dated this the 10th day of May, 2022

                                     JUDGMENT

The petitioner is operating a petroleum retail outlet in a building

bearing No.6/893 of the Pandalam Municipality situated at Re-

Sy.No.189/19. The retail outlet has been functioning from 1960

onwards. Initially, it was being conducted by M/s CALTEX India

Limited. During 1970s, the management was taken over by one M/s.

United Trading Corporation. Thereafter during 1980s, the Managing

Partner of the petitioner firm took over the management of the outlet

as dealer of the 4th respondent oil company which had come into

existence by then. From 2018, the operation of the outlet is by a firm

since the Managing Partner added his son also as a partner. The

petitioner claims that the petitioner and the 4 th respondent have

obtained all the requisite approvals from various competent

authorities for the purpose of establishing and running of the retail

outlet. Licenses have been obtained from the Municipality, the

Controller of Explosives, Fire and Rescue, etc. When the D&O licence

issued by the Municipality as Ext.P2 was nearing expiry, the petitioner

applied for renewal. Ext.P2(B) is the application dated 1.3.2021,

which has been acknowledged by Ext.P2(C) on 5.3.2021. The 1 st

respondent did not accept the application. The petitioner submitted

another application on 3.8.2021 which has been produced as Ext.P3.

By Ext.P4 dated 6.8.2021, the application submitted by the petitioner

has been rejected by the 2nd respondent. The reasons stated in the

order of rejection are failure to affix stamp in the application form and

absence of authorisation letter from the 4th respondent and receipt of

payment of profession tax. The petitioner was directed to close down

the outlet and was threatened with coercive action such as sealing of

the outlet. Ext.P5 is the receipt of payment of profession tax and

Ext.P5(a) is the receipt for payment of property tax. The Health

Inspector Gr.I of the Municipality who has been impleaded as the 3 rd

respondent affixed Ext.P6 notice of closure in the retail outlet. The

writ petition has been filed in the above circumstances praying to

quash Exts.P4 and P6 and for a direction to reconsider Ext.P3

application for renewal of the D&O licence.

2. Respondents 1 to 3 have filed a counter affidavit stating

that on inspection by the Municipality, it was found that there was no

building bearing No.6/893 in the Re-Sy.No.189/19. It is stated that

no relevant revenue records have been produced to substantiate the

claim. It is stated that in Ext.P2 the petitioner had obtained the

licence in 2020 with building bearing No.893/A. It is further stated

that the outlet is situated in Re-Sy.No.188/19-2-2 & 188/19-2

comprised in Pandalam Village which was earlier owned by one

K.M.Abraham as per the Municipality records. The said K.M.Abraham

had entered into a lease agreement with the 4 th respondent which had

been renewed on 27.11.1992 for a further period of 20 years. It is

further stated that as per the provisions of the Municipality law, only

the land owner or the legal heir of the deceased land owner or the

power of attorney of the original land owner can be mentioned as

owner in the assessment register, but due to certain highhanded

actions taken by the old Panchayat Office, the column which has to

show the name of the owner shows the name of the 4th respondent

and thereafter the petitioner in the assessment register. It is stated

that the Municipality came to know about the mistake only after the

deceased original owner's legal representatives approached them and

lodged a complaint before the District Police Superintendent, Vigilance

and Anti-Corruption Bureau. It is further stated in the counter

affidavit that the legal heirs of the original property owner had

intimated the Municipality that they had never renewed the rental

agreement with the 4th respondent after 2012 and that the present

petitioner is a total stranger and they cannot be held responsible if

any accident happens in the property due to the petitioner using

explosive articles. The counter affidavit further says that no valid

lease agreement has been produced and it was for all these reasons

that the application was rejected and subsequently on 10.8.2021, it is

stated, that a notice had been issued to the petitioner asking him to

produce the records, which are essential for issuance of the licence.

3. Additional respondents 5 and 6 have filed a counter

affidavit. The additional respondents 5 and 6 and their elder brother

one Saju C.Abraham are the owners of the property. It is stated in

the affidavit that the property originally belonged to their grandfather

Sri P.K.Yohannan who had entered into a lease with the predecessor of

the 4th respondent M/s CALTEX India Limited for an initial period of 10

years which was extended for a further period of 20 years. It is

stated that the period of 20 years expired on 30.9.1990. By virtue of

a Central Enactment, the shares of M/s.CALTEX India Limited were

acquired by the 4th respondent. Sri P.K.Yohannan had sold the

property to his daughter Smt.Ponnamma Abraham and thereafter the

4th respondent had entered into a lease agreement with

Smt.Ponnamma Abraham on 27.11.1992 for a period of 20 years. It

is stated that the lease agreement stands terminated with effect from

31.3.2012. It is further stated that Smt.Ponnamma Abraham died on

28.11.1995 and her husband died on 7.7.2007 and thereafter the

additional respondents 5 and 6 and their brother are the owners of

the property by succession. It is further stated that the owners have

entered into a partition agreement and the partition has not been

effected by metes and bounds and is still in joint possession. It is

further stated that the mutation has been carried out and tax is being

paid by the respective owners. It is further stated that holding over of

the property by the 4th respondent will not entitle the petitioner who is

a dealer of the 4th respondent to seek renewal of the D&O licence. It

is stated that the petitioner was having 5 cents of property adjoining

the boundary of the property of additional respondents 5 and 6 where

he was having a shop room which was bearing the building No.6/893.

It is stated that the said property was sold and the building No.6/893

is not in existence and that the building is not in the property which

had been given on lease. It is further stated that the office building

for the retail outlet bears the No.6/893A and was assessed in the

name of the 4th respondent, but the D&O licence had been taken for

the building No.6/893. It is thereafter stated that the respondents 5

and 6 had moved the Municipality and got the assessment in the

name of the 4th respondent cancelled and changed to that of their

names. It is further stated that the building has been re-numbered as

6/893(1). There is an allegation that the Municipality is hand in glove

with the petitioner and that renewal of licence is sought by practising

fraud as the subject matter which is the building bearing No.6/893 is

not existing.

4. The 4th respondent has filed a counter affidavit, wherein it

is stated that Sri P.K.Yohannan who was in possession and enjoyment

of 12.62 cents of land in Sy.No.318/4A had entered into a registered

lease agreement evidenced by document Nos.1560/1962 and 2600 of

1972 of SRO, Pandalam, whereby the land had been leased in favour

of M/s.CALTEX India Limited. The lease was valid till 13.9.1990. The

lease was for the purpose of setting up of petroleum/diesel outlet. It

is stated that the petroleum outlet in the leased premises was

operational with permanent structures well before 1967 when M/s.

CALTEX India was the lesseee and that by operation of the provisions

contained in Caltex Acquisition of Shares of Caltex Oil Refining (India)

Limited and of the Undertakings in India of Caltex (India) Limited Act,

1977(hereinafter referred to as the Act), the 4th respondent became

the successor in interest of M/s.Caltex India Limited. It is further

stated that by virtue of the provisions contained in Section 7(3) of the

Act, the 4th respondent was entitled to renewal of the lease for a

further period of 20 years commencing from 14.9.1990 on the same

terms and conditions. In recognition of such right, Mrs.Ponnamma

Abraham who was the then owner executed a lease deed on

27.11.1992 in favour of the 4th respondent for a period of 20 years

from 1.4.1992. The rent was being paid to Mrs.Ponnamma Abraham

during her life time. Consequent to the death of Mrs.Ponnamma

Abraham, the legal heirs executed a power of attorney in favour of the

5th respondent, authorising him to receive the rent. The rent was

being received by the 5th respondent. Sri C.J.Abraham, the husband

of late Ponnamma Abraham died on 7.7.2007. It is further stated that

on 1.12.2011, a letter had been addressed to Sri Saju C.Abraham

expressing the desire of the 4 th respondent to renew the lease

agreement along with the proposal to enhance the lease rent

reasonably and requesting for a discussion to finalise the renewed

lease terms and conditions. It is stated that there was no response to

the said letter and that cheques issued towards the lease amounts

were deliberately refused to be accepted and were returned by the

postal authorities with the endorsement "not accepting". It is further

stated that the 5th and 6th respondents along with Mr.Saju C.Abraham

have filed O.S.No.310 of 2015 before the Munsiff Court, Adoor against

the 4th respondent primarily seeking recovery of possession of plaint

schedule property. The 4th respondent has entered appearance in the

suit and filed their written statement contending that the continuance

of the lease arrangement is legally valid and that the plaintiffs have

deliberately suppressed the issuance of letter dated 1.12.2011 by the

4th respondent. The 4th respondent has claimed in the suit that they

are entitled to the statutory protection under Section 106 of the

Kerala Land Reforms Act and that the petroleum outlet was

operational with permanent structures much prior to 1967. It is

contended that the lease deed dated 27.11.1992 is only a

continuation of the original lease deed that was executed by the

predecessor of the 4th respondent and that the said lease was for a

commercial purpose. The contention is that since the 4 th respondent

is a commercial tenant, they are entitled to the statutory protection

under Section 106 of the Kerala Land Reforms Act. The above said

suit is still pending consideration of the civil court. It is specifically

contended that the structures and building in the premises were

constructed by the 4th respondent and that was the reason why the

property tax and profession tax were also being assessed and paid in

the name of the petitioner.

5. The petitioner has filed a reply to the counter affidavit filed

on behalf of respondents 1 to 3. Another reply affidavit has been filed

in reply to the averments to the counter affidavit filed by respondents

5 and 6 also. The 4th respondent has also filed I.A.No.4 of 2021

seeking to produce Exts.R4(a) to R4(d). Ext.R4(c) is a letter dated

24.5.1968 issued by the grandfather of the additional respondents 5

and 6, late P.K.Yohannan, in which it is stated that the predecessor-in-

interest of the 4th respondent had constructed the building and

established the petrol bunk at their cost in the property. It is

specifically stated that he had leased out only the land and that all the

improvements and business are being done by the predecessor in

interest of the 4th respondent. The letter itself was occasioned since a

demand was raised by the Tahsildar for realising amounts against the

constructions made. Ext.R4(d) is another letter issued by late

P.K.Yohannan, in which he has specifically stated that under Section

106 of the Kerala Land Reforms Act, 1964, as amended by Act 35 of

1969, the lessor is entitled to have rental increased in view of the

importance of the locality and the enhanced rental value of the

holding and stating that he will not be in a position to execute any

further deed as contemplated in the rent deed dated 6.3.1962, if

enhanced rent is not being paid. It is thereafter that the lease deed

was further executed for another term.

6. Heard the counsel for the petitioners and the respondents.

7. Admittedly, the suit initiated in 2015 seeking eviction of the

petitioner and the 4th respondent from the premises is pending

consideration of the civil court. At this stage, it is not possible to say

that the possession of the 4th respondent and the petitioner over the

property is illegal. Admittedly, they have been in possession for the

past several years based on lease deeds executed by the

predecessors-in-interest and the lessors have been receiving the rent.

In the decision reported in Sudhakaran V. Corporation of

Thiruvananthapuram [(2016) 14 SCC 263], the Hon'ble Supreme

Court has held that consent of the landlord for the purpose of renewal

of D&O license is not required and that going by the statutory

provision such a consent is required only at the first instance. The

Court went further to hold that even at the first instance, it may not

be necessary for producing a letter of consent so long as it is shown

that there is a valid tenancy. The Court held that the existence of a

valid tenancy itself is a consent by the landlord for carrying out any

lawful activity in the property. It is not disputed that operating a retail

petroleum outlet is a lawful activity. In such circumstances, there can

be no insistence that the licence will be renewed only with the owner's

consent. The rights of the owners are to be decided in the civil suit

pending between the parties and that need not in any way affect the

exercise of the duty of the 1st respondent to consider the application

for renewal in accordance with law. A consideration of the documents

that have been produced in the case and the pleadings will clearly

show that the petitioner and his predecessors have been operating the

petroleum outlet from the 1960s. The 1 st respondent Panchayat has

also been issuing licence and the outlet was being conducted with

licence till the expiry of the earlier licence in December, 2021. The

petitioners had submitted application for renewal of the licence several

months before the expiry of the licence, probably owing to the

pendency of the civil suit and the objection raised by the owners of

the land. It would appear from the pleadings that the building which

had earlier been assessed in the name of the 4 th respondent was

converted as an assessment in the name of the owners on the basis of

a complaint made by the owners. There is nothing to show that the

4th respondent was even put on notice about such a change. It can be

seen from the documents produced by the 4 th respondent that the

constructions were effected by the 4th respondent and not by

additional respondents 5 and 6 or their predecessors at any point of

time. That being so, the change of assessment in the name of the

owners and that too without notice to the 4 th respondent was totally

unwarranted. The contention regarding the number of the building

has been taken on the premise of the change of ownership and the

said contention cannot be sustained. This Court is of the considered

view that the action of the Municipality in rejecting the application for

renewal of the licence for the reasons stated in Ext.P4 are totally

unwarranted. The first reason regarding affixture of stamp is a

curable defect. So are the reasons regarding the production of the

receipt evidencing payment of profession tax and the authorisation

from the 4th respondent. Even though the consent of the landlord has

not been stated as a reason in Ext.P4, the said reason has been

stated in the counter affidavit filed by respondents 1 to 3. The

question deserves a re-look by respondents 1 to 3.

8. In the result, the writ petition is allowed. Exts.P4 and P6

are quashed. There will be a direction to respondents 1 and 2 to

consider the application submitted by the petitioner for renewal of the

D&O licence in accordance with law and to grant the same if the

petitioner is otherwise entitled. The reason regarding consent from

the landlord or the existence of tenancy or the assessment of the

building in favour of the landlords shall not be reasons for rejecting

the licence. It is made clear that this Court has not considered the

correctness of the change of the assessment of the building in the

name of the landlords and the observations made are only for the

purpose of deciding the question of renewal of licence in the name of

the petitioner. The above said question is left open to be decided in

appropriate proceedings. The petitioner shall be allowed to cure any

defect in the application for renewal, by putting them on notice

regarding the same. Necessary orders shall be issued within one

month from the date of receipt of a copy of this judgment. The

interim order issued by this Court on 13.8.2021 shall continue to be in

force till the application is disposed of by respondents 1 and 2.

Sd/-

T.R.RAVI JUDGE

dsn

APPENDIX OF WP(C) 16942/2021

PETITIONERS' EXHIBITS Exhibit P1 A TRUE COPY OF THE PETROL/DIESEL DEALER AGREEMENT FOR CORPORATION OWNED/LEASED OUTLETS DATED 15.2.2019 BETWEEN THE PETITIONER AND THE 4TH RESPONDENT.

Exhibit P2 A TRUE COPY OF THE LICENSE DATED 17.11.2020 ISSUED UNDER SECTION 447 OF THE KERALA MUNICIPALITY ACT 1994 BY THE 1ST RESPONDENT WITH RESPECT TO THE SUBJECT RETAIL OUTLET.

Exhibit P2(A) A TRUE COPY OF LICENSE 24.4.2019 ISSUED BY THE CONTROLLER OF EXPLOSIVES UNDER THE MINISTRY OF COMMERCE AND INDUSTRY, GOVERNMENT OF INDIA.

Exhibit P2(B) A TRUE COPY OF THE APPLICATION DATED 1.3.2021 SUBMITTED BY THE PETITIONER.

Exhibit P2(C) A TRUE COPY OF ACKNOWLEDGMENT OF RECEIPT DATED 5.3.2021 ISSUED BY THE 1ST RESPONDENT OF THE D & O APPLICATION.

Exhibit P3 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE MANAGING PARTNER OF THE FIRM BEFORE THE 1ST RESPONDENT SEEKING FOR RENEWAL OF D&O LICENSE WITH RESPECT TO THE SUBJECT MATTER OUTLET.

Exhibit P3(A) A TRUE COPY OF THE ACKNOWLEDGMENT OF RECEIPT DATED 3.8.2021 OF LICENSE FEE BY THE 1ST RESPONDENT WITH RESPECT TO THE D & O LICENSE RENEWAL APPLICATION SUBMITTED BY THE PETITIONER.

Exhibit P4 A TRUE COPY OF THE ORDER/COMMUNICATION DATED 6.8.2021 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

Exhibit P5 A TRUE COPY OF THE RECEIPT ISSUED BY THE 1ST RESPONDENT IN AUGUST 2021 IN CONNECTION WITH PROFESSIONAL TAX PAID WITH RESPECT TO THE RETAIL OUTLET.

Exhibit P5(A) A TRUE COPY OF RECEIPT DATED 29.1.2021 ISSUED BY THE 1ST RESPONDENT IN CONNECTION WITH PROPERTY TAX PAID BY MANAGING PARTNER OF THE PETITIONER FIRM.

Exhibit P6 A TRUE COPY OF THE NOTICE OF CLOSURE/SEALING OF THE SUBJECT MATTER RETAIL OUTLET ISSUED AND AFFIXED AT THE SAID RETAIL OUTLET'S PREMISES BY

THE HEALTH INSPECTOR, GRADE I, PANDALAM MUNICIPALITY, PATHANAMTHITTA DISTRICT.

Exhibit P7 A TRUE COPY OF THE INTERIM ORDER DATED 11.7.2014 IN WP(C) NO.17796/2014.

Exhibit P7(A) A TRUE COPY OF THE INTERIM ORDER DATED 26.2.2016 IN WP(C) NO.7417/2016.

Exhibit P7(B) A TRUE COPY OF THE INTERIM ORDER DATED 26.7.2016 IN WP(C) NO.24646/2016.

Exhibit P7(C) A TRUE COPY OF THE INTERIM ORDER DATED 6.2.2018 IN WP(C) NO.3815/2018.

Exhibit P7(D) A TRUE COPY OF THE INTERIM ORDER DATED 27.2.2018 IN WP(C) NO.6549/2018.

Exhibit P7(E) A TRUE COPY OF THE INTERIM ORDER DATED 25.2.2019 IN WP(C) NO.6549/2018.

Exhibit P8 A TRUE COPY OF PROPERTY TAX RECEIPT DATED 13/04/2016 PAID WITH RESPECT TO THE SUBJECT MATTER RETAIL OUTLET.

Exhibit P8(a) A TRUE COPY OF PROPERTY TAX RECEIPT DATED 10/04/2017 PAID WITH RESPECT TO THE SUBJECT MATTER RETAIL OUTLET.

Exhibit P8(b) A TRUE COPY OF PROPERTY TAX RECEIPT DATED 04/05/2018 PAID WITH RESPECT TO THE SUBJECT MATTER RETAIL OUTLET.

Exhibit P8(c) A TRUE COPY OF PROFESSION TAX RECEIPT DATED 29/05/2020 PAID WITH RESPECT TO THE SUBJECT MATTER RETAIL OUTLET.

EXHIBIT P9 A TRUE COPY OF THE COMMUNICATION SENT BY THE PETITIONER TO THE SECRETARY, PANDALAM MUNICIPALITY RESPONDENTS' EXHIBITS EXHIBIT R1(A) TRUE COPY OF THE OWNERSHIP DETAILS KEPT IN THE MUNICIPALITY REGISTER IN CONNECTION WITH THE BUILDING WHERE THE RETAIL OUTLET SITUATED EXHIBIT R1 (B) TRUE COPY OF THE NOTICE ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT DATED 10.08.2021 EXHIBIT R5(A) TRUE COPY OF THE CHANGE OF OWNERSHIP OF BUILDING BEARING NO.6/893(1) (OLD NO.6/893A) DATED 9.8.2021 BY PANDALAM MUNICIPALITY

EXHIBIT R5(B) TRUE COPY OF THE DEMAND NOTICE FOR REMITTANCE OF PROPERTY TAX FOR BUILDING BEARING NO.6/893 BY PANDALAM MUNICIPALITY DATED 9.8.2021 EXHIBIT R5(C) TRUE COPY OF THE ORDER DATED 11.08.2021 BY THE MUNICIPAL SECRETARY OF PANDALAM MUNICIPALITY EXHIBIT R4(A) THE TRUE COPY OF THE LETTER DATED 01.12.2011 ISSUED BY THE 4TH RESPONDENT, ALONG WITH THE POSTAL ACKNOWLEDGMENT RECEIPT DATED 02.12.2011 EXHIBIT R4(B) THE TRUE COPY OF THE INDEMNITY DEED DATED 18.06.1997 EXECTUED BETWEEN THE LANDOWNERS AND 4TH RESPONDENT EXHIBIT R4(C) TRUE COPY OF THE LETTER DATED 24.05.1968 ISSUED BY MR.PK YOHANNAN (PRE-DECESSORS OF THE RESPONDENTS 5 & 6) EXHIBIT R4(D) TRUE COPY OF THE LETTER DATED 12.10.1970 ISSUED BY MR.PK YOHANNAN (PRE-DECESSORS OF THE RESPONDENTS 5 & 6)