Ismail Ibrahimkutty vs The Corporation Of Cochin
2023 Latest Caselaw 779 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                 THE HONOURABLE MR.JUSTICE N.NAGARESH
     THURSDAY, THE 12TH DAY OF JANUARY 2023 / 22ND POUSHA, 1944
                       WP(C) NO. 40556 OF 2022
PETITIONERS:

    1      ISMAIL IBRAHIMKUTTY
           AGED 60 YEARS
           S/O. IBRAHIMKUTTY,
           MANAKKAPARAMBU HOUSE,
           KOONAMTHAI, EDAPALLY P.O.,
           KOCHI 682 024., PIN - 682024
    2      AMEER ALI
           AGED 37 YEARS
           S/O. M.A. ASHRAF,
           MANAKKAPARAMBIL HOUSE,
           THAYIKKATTUKARA P.O.,
           ALUVA, PIN: 683 106
           BY ADVS.
           K.R.VINOD
           M.S.LETHA
           NABIL KHADER
           JOHN TONY AKKARA
           CHITHRA C.EDADAN


RESPONDENTS:

     1     THE CORPORATION OF COCHIN,
           OFFICE OF THE CORPORATION OF COCHIN,
           PARK AVENUE ROAD, KOCHI 682 011,
           REPRESENTED BY ITS SECRETARY
     2     THE SECRETARY
           CORPORATION OF COCHIN,
           PARK AVENUE ROAD,
           KOCHI 682 011
     3     THE ASSISTANT HEALTH OFFICER
           CORPORATION OF COCHIN,
           HEALTH DEPARTMENT, MATTANCHERRY ZONE,
           MATTANCHERRY,
           KOCHI 682 002.
 WP(C) NO.40556 OF 2022

                                     2

     4          THE KERALA STATE POLLUTION CONTROL BOARD
                ERNAKULAM REGIONAL OFFICE,
                GANDHI NAGAR,
                KOCHI 682 020,
                REPRESENTED BY ITS CHIEF ENVIRONMENTAL OFFICER,
                PIN - 682020
                BY ADV K.JANARDHANA SHENOY- R1 TO R3
                SRI. T. NAVEEN (SC)- R4
         THIS     WRIT   PETITION   (CIVIL)   HAVING   COME    UP    FOR
ADMISSION        ON   12.01.2023,   THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 WP(C) NO.40556 OF 2022

                                3


                          JUDGMENT

Dated this the 12th day of January, 2023

The petitioners are before this Court seeking to issue

D&O licence for conducting a Hotel and Restaurant in the

premises taken on rent by them as per Ext.P2 Lease Deed.

The respondents are not issuing D&O licence on the ground

that all the tenants who are parties to the Lease Deed have

not made applications together for D&O licence.

2. Standing Counsel for respondents 1 to 3 submitted

that as the Lease Deed was executed by four persons, all

those tenants, who are signatories to the agreement, shall

make applications together for D&O licence or atleast their

consent should be produced. This having not been done, the

Corporation is not in a position to process the D&O licence

application submitted by the petitioners. The petitioners have

to produce Certificate from the Pollution Control Board also,

contended the Standing Counsel.

WP(C) NO.40556 OF 2022

3. I have heard the learned counsel for the petitioners

and the respective learned Standing Counsel for the

respondents.

4. It is seen from Ext.P2 that Sri.Salim Hassan and

Sri.Abdul Rasheed are parties to the lease agreement. The

question is whether an application for D&O licence need to be

signed by all the parties to the lease deed.

5. The specific contention of the petitioners is that the

Hotel and Restaurant is going to be run by a partnership

formed by two of the four tenants. These two persons have

signed application for D&O licence. I find that the mere fact

that the Lease Deed was executed by four persons need not

be a reason for the Corporation to insist that all the four should

together apply for D&O licence. The petitioners are in legal

possession. If there is any dispute between parties to the

Lease Deed, it is for the aggrieved persons to sort out or

resolve their disputes approaching appropriate forum.

Respondents 1 and 2 cannot deny D&O licence to the WP(C) NO.40556 OF 2022

applicants on that ground, as long as the applicants are in

legal possession of the premises.

In view of the above, the writ petition is disposed of

directing respondents 1 and 2 to process the D&O licence

application submitted by the petitioners, without insisting for

consent or signature of all the parties to the Lease Deed.

There will be a further direction to the 4th respondent to

process and pass final orders on the application for Consent

submitted by the petitioners.

sd/-

N.NAGARESH JUDGE hmh WP(C) NO.40556 OF 2022

APPENDIX OF WP(C) 40556/2022

PETITIONER EXHIBITS

Exhibit p1 THE COPY OF THE DEED OF PARTNERSHIP BETWEEN THE PETITIONERS DATED 22.10.2022 Exhibit p2 THE COPY OF THE LEASE DEED DATED 28.09.2020.

Exhibit p3 THE COPY OF THE CONSENT LETTER SIGNED AND EXECUTED BY THE LANDLORD OF THE PETITIONERS.

Exhibit p4 THE COPY OF THE AFFIDAVIT SUBMITTED BY THE 1 ST PETITIONER IN FAVOUR OF THE 2ND RESPONDENT.

Exhibit p5 THE COPY OF THE FSSAI LICENCE ISSUED BY THE COMMISSIONERATE OF FOOD SAFETY. Exhibit p6 THE COPY OF THE APPLICATION FILED BY THE PETITIONERS FOR CONSENT TO OPERATE BEFORE THE KERALA STATE POLLUTION CONTROL BOARD.

Exhibit p7 THE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONERS BEFORE THE OFFICE OF THE 2 ND RESPONDENT FOR OBTAINING D&O LICENCE.

Exhibit p8 THE COPY OF THE ACKNOWLEDGEMENT OF EXHIBIT P7 ISSUED BY THE OFFICE OF THE 2 ND RESPONDENT.

Exhibit9 THE COPY OF THE COMMUNICATION FROM THE OFFICE OF THE 2 ND RESPONDENT DATED 26.11.2022.,NUMBERD AS WZH5/2263/22