IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.M.SHAFFIQUE SATURDAY, THE 3RD DECEMBER 2011 / 12TH AGRAHAYANA 1933 WP(C).No. 1042 of 2005(Y) --------------------------------------- PETITIONER(S): ---------------------- SOMAN S.P., AGED 51, S/O. PADMANABHAN, RESIDING AT B3, EXPRESS GRADENS, KALOOR, COCHIN-682 017. BY ADV. SRI.K.K.JOHN RESPONDENT(S): -------------------------- 1. CORPORATION OF COCHIN, ERNAKULAM, COCHIN-11, REPRESENTED BY ITS SECRETARY. 2. THE REVENUE OFFICER, CORPORATION OF COCHIN, COCHIN-11. R1 & R2 BY ADV. SRI.A.K.SAITHU MOHAMMED. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 1042 of 2005(Y) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 COPY OF THE NOTICE NO.M.O.R.3/3065/78 DATED 12/07/1995 BY THE 2ND RESPONDENT. EXT.P2 COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 13/02/1997. EXT.P3 COPY OF THE REPRESENTATION DATED 18/03/1997 BY THE PETITIONER. EXT.P4 COPY OF THE NOTICE NO.M.O.R.3/3065/78 DATED 01/02/1999. EXT.P5 COPY OF THE APPLICATION DATED 03/02/1999 BY THE PETITIONER. EXT.P6 COPY OF THE NOTICE DATED 17/05/2004 ISSUED BY THE 2ND RESPONDENT. EXT.P7 COPY OF THE APPLICATION BY THE PETITIONER DATED 05/06/2004. EXT.P8 COPY OF THE NOTICE OF THE 2ND RESPONDENT DATED 08/10/2004. EXT.P9 COPY OF THE REPRESENTATION DATED 25/03/1997 BY THE PETITIONER. EXT.P10 COPY OF THE NOTICE DATED 01/02/1999 ISSUED BY THE 2ND RESPONDENT. EXT.P11 COPY OF THE APPLICATION BY THE PETITIONER DATED 03/02/1999. EXT.P12 COPY OF THE NOTICE DATED 18/05/2004 OF THE 2ND RESPONDENT. EXT.P13 COPY OF THE LETTER SUBMITTED BY THE PETITIONER DATED 05/06/2004. EXT.P14 COPY OF THE NOTICE DATED 08/10/2004 OF THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE rs A.M.SHAFFIQUE, J * * * * * * * * * * * * * W.P.C.No.1042 of 2005 ---------------------------------------- Dated this the 3rd day of December 2011 J U D G M E N T The petitioner challenges Exts.P8 and P14 demand notices by which the Corporation had called upon them to remit enhanced rent at 10% and 15% for certain periods from 01/04/1978 upto 31/03/2004 in respect of two shop rooms taken on license by the petitioner. 2. It is the case of the petitioner that though on every occasion, when there was a demand by the Corporation seeking the option of the petitioner regarding renewal of the license, despite sending communications agreeing to renew the license no further action has been taken in the matter and there was no demand for any enhanced license fee. However, by Ext.P6 dated 17/5/2004, and P12 dated 18/5/2004, the Corporation had called upon the petitioner to inform whether he was ready to renew the license and by Ext.P7 and P13, the petitioner had exercised his option to renew the lease for a further period of five years without any enhancement in license fee. It is, at this stage that W.P.C.No.1042 of 2005 2 Ext.P8 and P14, had been issued with respect to the shop rooms in question. 3. Until demand was made as per Ext. P8 and P14, the license fee paid by the petitioner was the amount fixed as on 31/3/1997 and during the pendency of the writ petition, the petitioner continued to occupy the premises and license fee was being paid at the enhanced rate as fixed by the Corporation. Therefore, during the pendency of the writ petition, according to the counsel, there is no arrears of fee and whatever demand was made by the Corporation has been paid. 4. With reference to Exts.P8 and P14 demands, according to the learned counsel for petitioner, they were paying the license fee as per agreed rates and only the enhancement from 1978 to 2004, as demanded has not been paid. The learned counsel for the respondents however contended that they were entitled to demand fee at the enhanced rate even with retrospective effect as the petitioner was in occupation of the premises and that they were fully aware of the fact that an enhancement had to be given periodically, for occupying the said premises. According to the learned counsel, the Corporation had W.P.C.No.1042 of 2005 3 not received Ext.P3, P5, P9 and P11 which were the letters issued by the petitioner to the Corporation intimating that he was willing to extend the period of license. 5. Having heard the arguments of the counsels appearing for either side, it is clear that the petitioner had been in occupation of the premises for a long period and they have been paying the fee at the agreed rate which was prevailing and agreed until 31/3/1997. Thereafter, the petitioner did not pay any enhanced fee until 01/04/2005 since there was no such demand during the said period. 6. Therefore, the question to be considered is whether the Corporation has the right to demand the enhanced license fee without it being demanded or claimed prior to 08/10/2004 on which date Exts.P8 and P14 had been issued. 7. Admittedly, a licensee is entitled to occupy the premises as long as the licensor permits to occupy such premises and license fee is fixed as agreed between the parties. In so far as there is no contract between the parties fixing license fee after 31/3/1997 the licensee has no obligation to pay any amount which is not contracted for. The respondents could not point out W.P.C.No.1042 of 2005 4 any provision of law which permits such demand and fixation of license fee for a previous term. Hence it is not open for the Corporation of Cochin to fix and demand license fee for a previous period and any such demand as borne out by Exts.P8 and P14 is bad in law and the said demand is liable to be set aside. 8. It is stated that no agreement had been executed between the licensee and Corporation of Cochin since the date of filing the writ petition. It is open for the Cochin Corporation to call upon the licensee to execute necessary agreements for the same and the licensee shall comply with such demand. With the above observation this writ petition stands allowed and Exhibits P8 and P14 shall stand quashed. (A.M.SHAFFIQUE, JUDGE) jsr // True Copy// PA to Judge W.P.C.No.1042 of 2005 5 W.P.C.No.1042 of 2005 6 THOMAS.P.JOSEPH,J. Crl.M.C.No. of 200 ORDER 19/01/2011