IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 WP(C).No. 21394 of 2008(V) --------------------------------------- PETITIONERS: --------------------- 1. GOWRI PADMANABHAN. WIDOW OF PADMANABHAN, AGED 82 YEARS, PUTHENPURACKAL, THIRUMALA WARD, CHUNGOM, ALAPPUZHA. 2. MOHANDAS, S/O. PADMANABHAN HOTEL WORKER, AGED 48, DO..DO... BY ADV. MR. R.AZAD BABU. RESPONDENTS: ------------------------ 1. ALAPPUZHA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, ALAPPUZHA. 2. C.X.JOSEPH, S/O. XAVIER, SHOP OWNER, AGED ABOUT 65 YEARS, CHENNAKKATTU, PAZHAVANGADI, THIRUMALA WARD, ALAPPUZHA. R1 BY ADV. MR. M.K. CHANDRAMOHAN DAS, R2 BY ADVS. MR.B.PRAMOD, MR.GEORGE MATHEWS. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.21394/2008-V: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE KURIPU BOOK. EXT.P.2: COPY OF THE RECEIPT DTD. 22/11/2003 ISSUED BY THE MUNICIPALITY. EXT.P.3: COPY OF THE TAX RECEIPT DTD. -11-2005 ISSUED TO THE P.1. EXT.P.4: COPY OF THE HEALTH CARD ISSUED TO THE P.2. EXT.P.5: COPY OF THE ORDER IN I.A. NO. 4702/2005 ON 15/12/2005. EXT.P.6: COPY OF THE NOTICE DTD. 30/01/06 ISSUED BY THE R.1. EXT.P.7: COPY OF THE PETITION IN RCP.NO.7/2006 OF RENT CONTROL COURT, ALAPPUZHA, DTD. 15/03/2006. EXT.P.8: COPY OF THE OBJECTIONS FILED BY SUKUMARAN IN -DO- DTD. 04/10/2006. EXT.P.9: COPY OF THE NOTICE DTD. 18/01/2006 ISSUED BY R.1. TO THE P.2. EXT.P.10: COPY OF THE REPRESENTATION DTD. 27/01/2006 SUBMITTED BEFORE THE R.1. BY THE P.2. EXT.P.11: COPY OF THE -DO- SUBMITTED BY THE P.1. DTD. 27/01/2006. EXT.P.12: COPY OF THE APPLICATION SUBMITTED BY THE P.1. TO THE R.1. DTD. 30/01/06. EXT.P.13: COPY OF THE APPLICATION UNDER THE EFA ACT SUBMITTED BY THE P.1. BEFORE THE R.1. EXT.P.14: COPY OF THE JUDGMENT DTD. 22/03/2006 IN W.P.(C).NO.3002/2006. EXT.P.15: COPY OF THE PROCEEDINGS OF THE MUNICIPAL CHAIRMAN DTD. 01/06/2007. EXT.P.16: COPY OF THE ORDER DTD. 15/03/2008 IN R.P. NO. 59/07 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS. RESPONDENTS' EXHIBITS: EXT.R2.A: COPY OF THE LEASE DEED DTD. 15/03/1994. W.P.(C). NO.21394/2008-V: EXT.R2.B: COPY OF THE ORDER DTD. 20/06/2007 IN R.C.P. NO. 7/2006 OF THE RENT CONTROL COURT, ALAPPUZHA. EXT.R2.C: COPY OF THE NOTICE DTD. 23/12/2005 ISSUED BY THE R.1. //TRUE COPY// P.S. TO JUDGE. Prv. THOTTATHIL B. RADHAKRISHNAN, J ........................................... WP(C).NO. 21394 OF 2008 ............................................ DATED THIS THE 2ND DAY OF JULY, 2009 JUDGMENT The first petitioner, an elderly lady of about 82 years going by the materials on record, is conducting a small hotel. There is controversy as to whether it is she or her son, the second petitioner, who is running that activity. But the fact remains that neither of them has license under the DLO Rules. But more important is the fact that even without license, the activity had been continuing for quite a long time. The dispute between the petitioners and the second respondent, the owner of the building, appear to be as to whether the petitioners came into possession of the building only in 2006 and whether they are the tenants. But that question does not survive as at present, because the second respondent has got an order of eviction on the premise that the building was let out to Sukumaran, the brother of Padmanabhan, the first petitioner Gowri's husband, and that with the passage of time, he had transferred his interest under that lease in favour of the petitioners. The finality achieved by that Wpc 21394/2008 2 Rent Control proceeding has reached a stage where the execution petition instituted in 2008 is pending consideration before the competent court. 2. On the aforesaid premise, in an earlier round, the petitioners challenged a stop memo. This court relegated them to statutory appellate proceedings. It was also directed that the application for license be considered by the Municipality. The Municipality rejected the request of license and the appeal filed by the first petitioner in that regard was also rejected. The second petitioner, the son of the first petitioner, filed a revision before the Tribunal against the decision regarding closure. That has also been turned down. These are matters which are subject matter of this writ petition. 3. While admitting this writ petition on 16.7.2008, this court granted an interim order of stay of further proceedings pursuant to Ext.P9 notice. That is essentially a discretionary order. That order of stay was extended, on three occasions and as of now, it stands extended until further orders. 4. The learned counsel for the second respondent argued that as of now, the petitioners do not have any license as Wpc 21394/2008 3 required by law and the decision rejecting the application for license has become final in as much as that was not challenged. He says that the petitioners are under the cover of the interim order, perpetuating illegality and are clinging on to possess the building in spite of the order of the Rent Control Court. 5. On the request of the second respondent to vacate the interim order, the learned counsel for the petitioner, argued that the ground realities on the facts remain to show that the activity of the hotel was being run for the last more than a decade by Sukumaran or the first petitioner or second petitioner and that there is material on record to show that the first petitioner had paid profession tax. 6. Though it may be true that even the receipts issued by the Municipality do not disclose the activity in relation to which profession tax is collected, the materials also show that sometime by the end of 2005, a closure notice was issued by the Municipality, followed by different notices even in early 2006. It was sometime immediately thereafter that the Rent Control proceedings commenced. Whatever be the controversy between the petitioners and the second respondent landlord, the crucial, Wpc 21394/2008 4 but certain, fact is that the Municipality cannot feign ignorance of the fact that the shop was being conducted. It is not a shop dealing with substances other than the articles of food. The ground of refusal of license is that the applicant had not produced the consent of the landlord to occupy the premises. Law provides that in cases where a license is already issued, consent is not required for renewal of license. In the given case, when the only conclusion that could be arrived at is that the activity being carried out by the petitioners was well within the knowledge of the Municipality, there is no reason as of now to take a strict view and thereby lead to the immediate closure of the livelihood of the first petitioner. At least she is entitled to get the benefit of continuing the interim order which is in force for the last nearly about an year, to be co-terminus with dispossession in execution of the Rent Control order. 7. Taking into consideration, the peculiar facts and circumstances of the case in hand, it is ordered that if the application for DLO license is otherwise in order, the Municipality will grant it co-terminus with dispossession in execution of the Rent Control order. While the petitioners are hereby directed not Wpc 21394/2008 5 to make any change to the structure of the building, as it now stands; on production of a copy of this judgment, the Munsiff's Court before which execution proceedings in the Rent Control matter is pending would consider expediting the enforcement proceedings. It is further clarified that the benefit of this judgment does not accrue to the second petitioner who is not entitled to any license and his possession or occupation in the first petitioner would also be co-terminus with the eviction in enforcement of the Rent Control Court's order. Writ petition ordered accordingly. THOTTATHIL B RADHAKRISHNAN, JUDGE lgk/3/7