Kerala High Court
Raihanath vs State Of Kerala on 27 April, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 27TH DAY OF APRIL 2023 / 7TH VAISAKHA, 1945
WP(C) NO. 15240 OF 2022
PETITIONER:
RAIHANATH, AGED 50 YEARS
D/O.K.KUNJUMUHAMMED, PARAMMAL KALAMKUNNU HOUSE,
CHUNGATHARA.P.O., MALAPPURAM DISTRICT, PIN - 679334
BY ADVS.
DINESH MATHEW J.MURICKEN,K.A.ABHILASH
VINOD S. PILLAI,MOHAMMED THAYIB N.M.
NAYANA VARGHESE,AHAMMAD SACHIN K.
RESPONDENTS:
1 STATE OF KERALA REP. BY SECRETARY TO GOVERNMENT,
LOCAL ADMINISTRATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM - 695001
2 EDAKKARA GRAMA PANCHAYATH,EDAKKARA.P.O.,
MALAPPURAM DISTRICT,PIN - 679331
REPRESENTED BY ITS SECRETARY,
3 THE SECRETARY EDAKKARA GRAMA PANCHAYATH,
EDAKKARA.P.O. , MALAPPURAM DISTRICT, PIN - 679331
4 INDIAN OIL CORPORATION LTD
DIVISIONAL OFFICE, KOZHIKODE, PMK TOWERS,
CIVIL STATION.P.O., KOZHIKODE DISTRICT,
REPRESENTED BY ITS DIVISIONAL MANAGER, PIN - 673020
5 K.RABIYAKUTTY, W/O.LATE ALAVI KURIKKAL,
KURIKKAL HOUSE, P.O.EDAKKARA, MALAPPURAM DISTRICT,
MALAPPURAM DISTRICT, PIN - 679331
6 M.P.ABDUL AZEEZ KURIKKAL
S/O.M.P.ALAVI KURIKKAL, KURIKKAL HOUSE,
P.O.EDAKKARA, MALAPPURAM DISTRICT,
MALAPPURAM DISTRICT, PIN - 679331
7 M.P.MOHAMMED SHEREEF KURIKKAL
S/O.M.P.ALAVI KURIKKAL, KURIKKAL HOUSE,
P.O.EDAKKARA, MALAPPURAM DISTRICT,
MALAPPURAM DISTRICT, PIN - 679331
WP(C) No.15240 of 2022 2
8 M.P.ABDUL MANAF KURIKKAL
S/O.M.P.ALAVI KURIKKAL, KURIKKAL HOUSE,
P.O.EDAKKARA, MALAPPURAM DISTRICT,
MALAPPURAM DISTRICT, PIN - 679331
9 M.P.ABDUL RASHEED, S/O.M.P.ALAVI KURIKKAL,
KURIKKAL HOUSE, P.O.EDAKKARA, MALAPPURAM DISTRICT,
MALAPPURAM DISTRICT, PIN - 679331
10 M.P.MOHAMMED SADIQUE KURIKKAL
S/O.M.P.ALAVI KURIKKAL, KURIKKAL HOUSE,
P.O.EDAKKARA, MALAPPURAM DISTRICT,
MALAPPURAM DISTRICT, PIN - 679331
11 M.P.HAFSATH, W/O.NEELENGADAN ABDUL HACKEEM,
NEELENGADAN HOUSE, P.O.VANIYAMBALAM,
MALAPPURAM DISTRICT, PIN-679339
ADDL.R12 ABDUL HAKKEEM, AGED 58 YEARS,
S/O M.P ALAVI KURIKKAL, KURIKKAL HOUSE,
EDAKKARA P.O, MALAPPURAM
ADDL.R13 FASSAL RAHMAN, AGED 37 YEARS,
S/O M.P.ALAVI KURIKKAL, KURIKKAL HOUSE,
EDAKKARA P.O, MALAPPURAM
ADDL.R14 SABNA N, AGED 34 YEARS,
D/O M.P ALAVI KURIKKAL, KURIKKAL HOUSE,
EDAKKARA P.O, MALAPPURAM
(ADDL.R12 TO R14 IMPLEADED AS PER ORDER DATED
27.04.2023 ON IA NO.2 OF 2022)
BY ADVS.
R2 BY ADV.U.K.DEVIDAS
M.P.PRABHAKARAN (PALAKKAD)
SRI.MATHEWS J.NEDUMPARA, SC, IOC
R5 TO R10 BY ADV.K.M SATHYANATHA MENON K.M
R4 BY ADVS.M.GOPIKRISHNAN NAMBIAR
K.JOHN MATHAI
JOSON MANAVALAN
KURYAN THOMAS
PAULOSE C. ABRAHAM
RAJA KANNAN
OTHER PRESENT:
R1 BY GP - RIYAL DEVASSY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
27.04.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) No.15240 of 2022 3
VIJU ABRAHAM, J.
.................................................................
W.P.(C) No.15240 of 2022
.................................................................
Dated this the 27th day of April, 2023
JUDGMENT
Above writ petition is filed challenging Exts.P9 and P10
and for a further direction to the third respondent to consider and pass
orders on Ext.P11 application for renewal of licence without insisting
upon fresh lease deed or consent of the landlord. Petitioner is running
a petrol diesel retail outlet as dealer of the fourth respondent Indian Oil
Corporation from 2008 onwards on the strength of Ext.P1 dealership
agreement dated 01.08.2008, in 40 cents of land comprised in Survey
No.1053 of Edakkara Village. Ext.P1 dealership agreement is for a
period of 15 years and the above-said property was taken on lease by
the fourth respondent from respondent Nos.5 to 11 as per Ext.P2
lease deed dated 09.05.2003 and the fourth respondent thereafter
constructed the building and installed petrol/diesel tanks etc. As per
the terms of Ext.P2 lease deed, the fourth respondent is entitled to run
the retail outlet through its agents and therefore petitioner being the
dealer of the fourth respondent is entitled to run retail outlet in the
premises covered by Ext.P2 lease deed. Ext.P3 is the D&O licence
issued by the second respondent panchayat. Petitioner submitted
application for renewal of licence for the year 2020-21 and since no
decision was taken on the same within a period of 30 days, the
application for renewal of licence was deemed to be allowed as per
Section 236(3) of the Kerala Panchayat Raj Act. Thereafter Ext.P5
communication was issued by the third respondent, Secretary of the
Panchayat intimating that a complaint has been received from the
nineth respondent, one of the lessor informing that Ext.P2 lease deed
has been cancelled and therefore, if the petitioner do not produce
necessary documents in this regard, the application will be rejected.
Thereafter, the petitioner submitted application for renewal of licence
for 2021-22 which was also not considered within 30 days and
therefore, the petitioner has a deemed licence as per the provisions of
Section 236(3) of the Kerala Panchayat Raj Act. Subsequently,
Ext.P8 communication was sent by the third respondent intimating that
the renewal of licence could be considered only on production of a
lease deed and subsequently Ext.P9 notice was issued intimating that
steps will be taken to close down the establishment. Thereafter, by
Ext.P10 communication, third respondent intimated the petitioner to
close down the establishment within 30 days from the date of the
receipt of the copy of the notice. Thereafter, the petitioner submitted
Ext.P11 application for renewal which has not been considered by the
respondent Panchayat. Petitioner relies on the judgment in
Sudhakaran v. Corporation of Trivandrum and Others, (2016) 14
SCC 263 in support of his contention.
2. Respondents Nos. 5 to 10 filed a detailed counter affidavit
contending as follows. Ext.P2 lease deed was executed on
09.05.2003 for a period of 15 years from 28.11.2002 and the period of
Ext.P2 expired on 27.11.2017 and as no fresh deed has been
executed, the fourth respondent or the petitioner has no legal right to
continue the occupation of the respondent's property. It is specifically
stated in Ext.P2 agreement that on the expiry of the period of the
lease deed, the fourth respondent shall give vacant possession of the
property after removing/dismantling the structures, machinery etc.
The respondents along with the petitioner are the co-owners of the
property and they did not intend to extend the term of Ext.P2
agreement for any further period and accordingly, the respondents
along with the petitioner and other co-owners had informed the fourth
respondent about their intention to terminate the lease deed even
before the expiry of the lease period and a lawyer notice was sent on
12.12.2017. Thereupon, the fourth respondent approached these
respondents including the petitioner and expressed their intention to
purchase the above 40 cents of land along with a one acre of property,
but the said proposal could not be finalized. Thereupon, these
respondents together with the petitioner issued Ext.R5(a) notice to
execute the sale deed as agreed upon. But the fourth respondent did
not perform their part of the obligation. Thereafter, W.P(C) No.9089 of
2021 was filed by these respondents together with other co-owners
and the petitioner, seeking a direction to the fourth respondent to
vacate the property covered by Ext.P2 lease deed. It is suppressing all
these aspects, the present writ petition has been filed. The petrol
pump is now running without any licence issued by the respondent
panchayat. Thereupon, the third respondent panchayat issued Ext
R5(c) communication directing the petitioner to produce the document
relating to possession of the land within 7 days or else the petrol pump
will be closed and the petitioner has suppressed the issuance of the
said communication in this writ petition. No licence was issued to the
petitioner for the year 2021 and the contention of the petitioner that he
is entitled for deemed licence is without any basis. The third
respondent has also issued Exts.R5(d) and (e) communications to the
fourth respondent directing to stop the operation of the pump
immediately and consequently, Ext.P9 communication was issued to
the petitioner also. The fourth respondent is no more a statutory
tenant of the respondents. Ext.P2 agreement has expired and the
same is not renewed and these respondents along with the petitioner
have clearly communicated their intent to get the property vacated.
They rely on the judgment of the Apex Court in C. Albert Mooris v. K.
Chandrasekaran and Others, (2016) 1 SCC 228 and the decision in
W.P(C) No.3545 of 2017. Based on the above-said averments, the
respondents sought for dismissal of the writ petition.
3. The question to be considered in this case is as to
whether a direction could be issued to the third respondent to consider
Ext.P11 application for renewal of licence without insisting upon a
fresh lease deed or consent of the landlord. Heavy reliance is placed
on the judgment of the Apex Court in Sudhakaran's case supra which
held that consent of the landlord is not required for renewal of
municipal licence to run a shop. In the present case, Ext.P2 lease
deed is executed between the fourth respondent company and
respondent Nos.5 to 11, which has already expired. The petitioner is
running the petroleum outlet as a dealer of Indian Oil Corporation on
the strength of Ext.P1 dealership agreement. Infact, the petitioner is
not the tenant in Ext.P2 lease deed, and therefore, the principles in
Sudhakaran's case supra will not strictly apply in the facts of the
present case. Admittedly, the petitioner along with party respondents
has issued Ext.R5(a) notice to the fourth respondent and also filed
Ext.R5(b) writ petition seeking a direction to the fourth respondent to
vacate the property. The third respondent has issued Ext.R5(c) notice
directing the petitioner to produce documents relating to possession of
land or else the petrol pump will be closed. All these aspects are
suppressed while filing the writ petition. Respondents 5 to 10 rely on
the judgment in C. Albert Mooris's case supra, the relevant portion of
which reads as follows:
"43. In our opinion, any right which the dealer has over his site
was the right which he had acquired in terms of the lease.
When that lease expired and when the landlord declined to
renew the same and also called upon the erstwhile tenant to
surrender possession, the erstwhile lessee could no longer
assert that he had any right to the site. His continued
occupation of something which he had no right to occupy
cannot be regarded as source of a right to the land of which he
himself was not in lawful possession."
The said legal position has been followed by this court in W.P(C) No.
3545 of 2014, though in the case of suspension/cancellation of the
explosive licence. In view of the above facts and circumstances and
also taking into consideration the fact that there are suppression of
material facts, I am of the opinion that the petitioner is not entitled for
any of the reliefs sought for in this writ petition.
The writ petition is accordingly dismissed.
Sd/-
VIJU ABRAHAM
JUDGE
cks
APPENDIX OF WP(C) 15240/2022
PETITIONER EXHIBITS
Exhibit1 TRUE COPY OF THE DEALERSHIP AGREEMENT
EXECUTED BETWEEN THE PETITIONER AND
THE 4TH RESPONDENT DATED 01.08.2008
Exhibit P2 TRUE COPY OF THE LEASE DEED EXECUTED
BETWEEN THE 4TH RESPONDENT AND THE
RESPONDENTS 5 TO 11 DATED 09.05.2003
Exhibit P3 TRUE COPY OF THE D & O LICENCE ISSUED
FROM THE 2ND RESPONDENT DATED
29.04.2019 FOR YEAR 2019-2020
Exhibit P4 TRUE COPY OF THE CASH RECEIPT DATED
12.02.2020 ISSUED FROM THE 2ND
RESPONDENT EVIDENCING THE PAYMENT OF
LICENCE FEE FOR THE YEAR 2020-2021
Exhibit P5 TRUE COPY OF THE LETTER ISSUED BY THE
3RD RESPONDENT DATED 22.07.2020
Exhibit P6 TRUE COPY OF THE APPLICATION FOR
RENEWAL OF LICENCE SUBMITTED BY THE
PETITIONER BEFORE THE 2ND RESPONDENT
FOR THE PERIOD 2021-2022 DATED
22.02.2021
Exhibit P7 TRUE COPY OF THE CASH RECEIPT DATED
22.02.2021 EVIDENCING THE PAYMENT OF
LICENCE FEE FOR THE YEAR 2021-2022
Exhibit P8 TRUE COPY OF THE LETTER ISSUED BY THE
3RD RESPONDENT DATED 23.12.2021
Exhibit P9 TRUE COPY OF THE NOTICE ISSUED BY THE
3RD RESPONDENT DATED 31.01.2022
Exhibit P10 TRUE COPY OF THE NOTICE ISSUED BY THE
3RD RESPONDENT DATED 02.04.2022
Exhibit P11 TRUE COPY OF THE APPLICATION FOR
RENEWAL OF LICENCE SUBMITTED BY THE
PETITIONER THROUGH ONLINE DATED
23.04.2022
RESPONDENT EXHIBITS
Exhibit R5(a) A true copy of the lawyer notice
issued to the 4th respondent through Advocate dated
17.12.2019
Exhibit R5(b) A true copy of the memorandum of writ
petition in W.P (c)No: 9089/2021 along
with Exhibits
Exhibit R5(c) A true copy of the communication
issued by the 3rd respondent to the
petitioner dated 01.10.2020
Exhibit R5(d) A true copy of the communication
issued by the 3rd respondent to the
Assistant Sales Manager of 4th
respondent dated 24.01.2022
Exhibit R5(e) A true copy of the communication
issued by the 3rd respondent to the
Divisional Manager (sales) of 4th
respondent dated 2.04.2022
