IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 8TH JANUARY 2009 / 18TH POUSHA 1930 WA.No. 1049 of 2005() ------------------------------ AGAINST THE JUDGEMENT/ORDER IN WPC.14757/2004 Dated 06/07/2004 .................... APPELLANT(S): PETITIONERS: -------------------------- 1. M.G. THOMAS, S/O. GEE VARGHESE, ANAND ESTATE, KALPETTA, WAYANAD DISTRICT. 2. SARAMMA THOMAS, W/O. M.G. THOMAS, ANAND ESTATE, KALPETTA, WAYANAD DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, EXCISE DEPARTMENT GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. 3. THE ASSISTANT EXCISE COMMISSIONER WAYANAD, KALPETTA. 4. THE SECRETARY, KALPETTA MUNICIPALITY KALPETTA, WAYANAD. 5. CHERKKOTTU RAJAN THOMAS, S/O. C.M. THOMAS, EMILY, KALPETTA NORTH P.O., KALPETTA, WAYANAD DISTRICT. W.A. NO.1049/2005 6. SANJU. T., S/O. C.M. THOMAS, CHERUKOTTU HOUSE, ARAKUZHA P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT. GOVERNMENT PLEADER SMT.K.MEERA SRI.GEORGE POONTHOTTAM SRI.A.K.SRINIVASAN FOR R4 SRI.N.S.MOHAMMED USMAN FOR R4 SRI.A.S.BENOY FOR R4 SRI.GEORGE POONTHOTTAM FOR R5 & R6 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY, Ag.CJ & P.R.RAMACHANDRA MENON, J. =========================== W.A.No.1049 of 2005 - E =============================== Dated this the 8th day of January, 2009. J U D G M E N T Koshy, Ag.CJ. Appellants/petitioners are husband and wife. They are owners of a building bearing No. VI/116 and VI/126 in the Kalpatta Municipality. They are running a tourist home in the said building in the name and style M.G.T. International. In the year 1996, respondents 5 and 6 obtained FL3 licence for the bar. On 17.1.1997 a mortgage deed was executed by appellants and respondents 5 and 6 and they were permitted to occupy the premises of room numbers 201 to 212, 214 and the reception counter for running the hotel and the bar. The mortgage was usufructuary mortgage in consideration of a sum of Rs.1,00,000/- paid by the mortgagees to the appellants at the time of execution of the deed and respondents 5 and 6 conducted the bar and hotel in the name and style Hotel Zodiac in M.G.T. International in the above mortgaged premises. Licence was renewed from time to W.A.No.1049 of 2005 - E 2 time. In March, 2004 appellants expressed their desire to redeem the mortgage. Consequently, they intimated the excise authorities not to grant renewal of licence. O.S.No.101/2004 was filed for restraining the respondents 5 and 6 from running the tourist home. The contention of the appellants is that for fresh grant of a licence consent of the land owner is necessary. It is repeatedly held that renewal of licence is equivalent to grant of a fresh licence. Therefore, every time, land owner's consent is necessary. Since the licence was renewed without the consent of the appellants, they approached this Court. Learned Single Judge found that, as per the Kerala Municipalities Act, for renewal of a licence, consent of the building owner is not necessary. For renewal of FL3 licence appellants'/petitioners' consent is not necessary. Consent is necessary only on the initial grant. The appellants have to approach the appropriate legal forum for redeeming the mortgage. Only at the time of initial grant of licence, consent of the building owner is necessary. For the yearly renewal of the licence, consent of the building owner need not be obtained and that cannot be made a method to evict the W.A.No.1049 of 2005 - E 3 parties. We agree with the view taken by the learned Single Judge that the consent of the building owner is necessary for giving licence only at the time of initial grant even though Government is free to cancel the licence on any other ground. Here, respondents 5 and 6 also not mortgagees of the property. If the mortgage is redeemed by legal process and they are evicted, they cannot conduct the bar in the hotel even though they hold a licence. So without prejudice to the remedies of the appellants through other forums for evicting the petitioner and redeeming the mortgage, this writ appeal is dismissed. J.B.KOSHY, ACTING CHIEF JUSTICE. P.R.RAMACHANDRA MENON, JUDGE. bkn/-