IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34836 of 2009(Y)
1. ANZAR RAHIM, AGED 62 YEARS,
... Petitioner
Vs
1. RAHIYANATH AZAD, W/O.AZAD RAHIM,
... Respondent
2. THE THRIKKADAVOOR GRAMA PANCHAYATH,
3. THE SECRETARY,
4. THE TRIBUNAL,
For Petitioner :SRI.C.RAJENDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :18/12/2009
O R D E R
S. SIRI JAGAN, J
................................................
W.P(C) No. 34836 of 2009
.................................................
Dated this the 18th day of December, 2009
J U D G M E N T
The subject matter of this writ petition is a lake resort and
an auditorium at Kollam. Presently the same is being conducted
by the 1st respondent who is the sister-in-law of the petitioner.
On expiry of the period of licence, she applied for renewal of
licence. That was rejected by the Secretary of the Thrikkadavoor
Grama Panchayath. The 1st respondent filed an appeal before
the Panchayath committee against the order rejecting the
renewal application. That appeal was also dismissed. The 1st
respondent filed an appeal before the Tribunal for Local Self
Government Institutions. The Tribunal, by Ext.P8 order, set
aside the orders of the Secretary and the Panchayath and
directed renewal of the licence for the period 2009-2010 as per
the application of the 1st respondent. The petitioner is
challenging Ext.P8 order. According to the petitioner, the 1st
respondent is not one of the legal heirs of the erstwhile owner on
his death and therefore without consent from all the legal heirs
of the former owner under whom the 1st respondent was running
W.P(C) No. 34836 of 2009 -2-
a restaurant, the licence cannot be renewed. The petitioner
therefore submits that the order of the Tribunal is patently legal
and unsustainable.
2. I have considered the arguments of the learned counsel
for the petitioner. The Secretary of the Panchayath rejected the
application for renewal on two grounds. The first is that no
documentary evidence of right to occupy the building has been
produced by the petitioner. The second is that the lease deed on
the basis of which the 1st respondent has claimed renewal of
licence expired on 26.3.2009 and hence she is not eligible for
renewal of licence for the period 2009-2010. These reasons have
been negatived by the Tribunal thus:
“Pages 233 and 234 of the file produced by
Counter Petitioners 1 and 2 is the application dated
6.2.2009 for renewal of the licence of the resutarant for
the period 2009-10. Pages 249 to 253 of the file contain
two copies of the order dated 21.2.2009 rejecting the
application dated 6.2.2009. Two reasons are stated as
reasons for rejecting the application in the order of the
Secretary. The first reason is that no documents
evidencing right to occupy the building is produced
along with the application. There is no provision of law
making it necessary to produce any such document
along with an application for renewal of existing licnce.
Right to possess the building is to be established only
for granting the licence for the first time and not in
renewing the existing licence for further period. The
second ground stated in the order of the Secretary is
that the lease deed produced expires on 26.3.2009 and
hence it does not enable renewal of licence for the
period 2009-10. Once the lessee, the person willW.P(C) No. 34836 of 2009 -3-
continue as a lessee until the lease is lawfully
terminated. It was held in Marimuthu vs. Director
General of Police (1999(3) KLT 662) that the
Corporation cannot insist upon the tenant holding over
to production of written consent from the landlord for
the purpose of issuing of licence for conducting
business. As per the said decision even for granting
licence for the first time it is not necessary to produce
the written consent from the landlord by the tenant
holding over. The application rejected by the Secretary
by his order dated 21.2.2009 was not any application
for licence for the first time but it was only an
application for renewal of licence. So the said
application would have been allowed without insisting
on any proof as to right to occupy the building.
Apparently the order dated 21.2.2009 of the Secretary
rejecting the application for renewal of licence is not
sustainable. Pages 255 to 257 of the file is the Appeal
filed by the Petitioner against the order of the
Secretary dated 21.2.2009. As per the pleadings of the
Counter Petitioners the impugned decision was taken
on the said Appeal filed by the Petitioner against the
order of the Secretary dated 21.2.2009. Copy of the
said decision is produced from the side of Counter
Petitioners 1 and 2 separately though no such copy is
found in the file produced. For the reasons already
pointed out above, the Appeal would have been allowed
but the Panchayat Committee took the decision No.1
dated 22.9.2009 to reject the Appeal only. In the
decision the Appeal is referred to as Appeal dated
6.4.2009 but at the hearing no such Appeal dated
6.4.2009 is pointed out from the side of Counter
Petitioners and it is submitted that the Appeal disposed
of by the impugned decision is the Appeal found on
pages 255 to 257 of the file. It is Appeal dated 7.3.2009
and endorsed as received on 12.3.2009 and is against
the order of the Secretary dated 21.2.2009 rejecting
the application for renewal of licence. In the
circumstances pointed out above, the impugned
decision and consequential notice are not sustainable
and are liable to be set aside, along with the order of
the Secretary dated 21.2.2009 upheld by the impugned
decision, and the application dated 6.2.2009 for
renewal of the licence for the period 2009-10 is only to
be allowed.”
W.P(C) No. 34836 of 2009 -4-
On a reading of the same, I do not find any infirmity
whatsoever in the reasoning of the Tribunal. Therefore the writ
petition is without merits and accordingly the same is dismissed.
Of course if the petitioner has any dispute regarding title etc it is
for the petitioner to approach the appropriate Civil Court for
appropriate remedies. The dismissal of this writ petition will
stand in the way of the petitioner approaching the Civil Court for
appropriate reliefs.
sd/-
S. SIRI JAGAN, JUDGE
rhs
// True copy //
PA to Judge