IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 WP(C).No. 2549 of 2007(C) -------------------------------------- PETITIONER(S): ---------------------------- JAYARAM, S/O.SIVADASAN, JAI HIND MANDIRAM, NILAKKA MUKKU, VAKKOM VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADVS. MR.K.MOHANAKANNAN, SMT.A.R.PRAVITHA. RESPONDENT(S): --------------------------- 1. DISTRICT COLLECTOR, COLLECTORATE, THIRUVANANTHAPURAM. 2. ADDITIONAL DISTRICT MAGISTRATE, THIRUVANANTHAPURAM. 3. SIVADASAN, JAI HIND MANDIRAM, VILAYIL MOOLA, ATTINGAL MUNICIPALITY, THIRUVANANTHAPURAM.\ R1 & R2 BY GOVERNMENT PLEADER MR. P.K.RAVIKRISHNAN R3 BY ADV. MR.NAGARAJ NARAYANAN, MR.SAIJO HASSAN, MR.A.S.SABU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/03/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.2549/2007 C APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER IN I.A.NO.2230/2005 IN O.S.285/05 ON THE FILE OF THE MUNSIFF COURT, VARKALA, DTD. 14/10/2005. EXT.P2: COPY OF THE ORER DTD. 4/02/2006 IN I.A.NO.2446/2005 IN OS.NO.285/05 OF MUNSIFF COURT, VARKALA. EXT.P3: COPY OF LETTER NO.A-17/18790/2006 DTD. 5/08/06 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT. EXT.P4: COPY OF THE RECEIPTS TOWARDS REMITTANCE OF FEE FOR RENEWAL OF LICENCE. EXT.P5: COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT NO. A17/18790/06 DTD. 13/10/2006. EXT.P6: COPY OF ORDER NO.A17/18790/06/2 DTD. 20/11/2006 ISSUED BY THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R3(A): COPY OF THE POWER OF ATTORNEY DTD. 25/07/2005. EXT.R3(B): COPY OF THE LICENSE ISSUED TO THE PETITIONER DTD. 31/03/2000. EXT.R3(C): COPY OF THE COMPLAINT FILED BY THE 3RD RESPONDENT BEFORE THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. EXT.R3(D): COPY OF THE JUDGMENT IN O.S.NO.237/1986 PASSED BY THE MUNSIFF'S COURT, VARKALA DT. 2/03/1991. /TRUE COPY/ P.A.TO JUDGE Kss P.R.RAMACHANDRA MENON, J. ====================== W.P.(C) No. 2549 of 2007(C) ====================== Dated, this the 23rd day of March, 2009 J U D G M E N T The petitioner is aggrieved of the refusal to renew the licence given to him for storing and selling 'Fire works' in the building No.V.P.VII/643 of the Vakkom panchayath, for want of consent to be issued by the owner of the building as conveyed by Exhibit P6; despite the fact that the first respondent himself had permitted to shift the business to the above premises from the earlier building bearing No.K.P.-V/1070 of the Kadakkavoor Panchayath as evident from a copy of the licence produced by the third respondent as Exhibit R3(b). 2. The crux of the factual matrix is that the petitioner is the son of the third respondent and he is residing along with his mother and sister in the residential building adjacent to the shop room bearing No.V.P. VII/643. The petitioner's case is that the third respondent father W.P.(C) No. 2549/2007 -:2:- started living separately with another lady elsewhere and has got other children in the said relationship. The so called 'second wife' by name Santhakumari tried to interrupt the possession and enjoyment of the building occupied by the petitioner, his mother and sister, when they approached the Munsiff's Court, Varkala by filing O.S.No.285 of 2005 wherein an interim injunction was granted as per order dated 14-10-2005 in I.A.No.2230 of 2005 restraining the respondent/defendant therein from forcefully evicting the petitioners from the plaint schedule building. The above order along with the schedule of the building has been produced by the petitioner as Exhibit P1, which describes the building No.“V.P.VII/643” as a shop room where the second petitioner therein (petitioner in this writ petition) is conducting some business. The above interim injunction was extended until further orders vide Exhibit P2. 3. It is seen from Exhibit P3 issued by the first respondent that the petitioner had submitted an application W.P.(C) No. 2549/2007 -:3:- dated 27-2-2006 for renewal of the licence to be issued under the relevant provisions of the Explosives Act and Rules, which had already been forwarded to the concerned authorities for verification and report. It is revealed from Exhibit P4 that the petitioner has remitted some amount as licence fee for renewal. But presumably pursuant to Exhibit R3(c) filed by the third respondent against renewal, the first respondent appears to have called for a report from the Tahsildar, Chirayinkeezu vide Exhibit P5 communication dated 13-10-2006, seeking for the particulars of the case stated as filed and pending before the Munsiff's Court, Varkala involving the ownership of the concerned building and also as to the interim order issued by the Court. Thereafter, Exhibit P6 communication was issued by the first respondent rejecting the application for renewal for not producing the consent of the owner of the building, which in turn, has been subjected to challenge on many a ground, stating that it was passed without giving an opportunity of W.P.(C) No. 2549/2007 -:4:- hearing and further that the reason stated for rejection is not correct or sustainable in law. 4. The third respondent has filed a counter affidavit mainly contending that the petitioner is not entitled to get the licence renewed; that the concerned shop room actually belongs to his eldest son who acquired the title from the third respondent (through his daughters who had sold their rights for valid consideration); that the third respondent is the power holder of the said eldest son as borne by Exhibit R3(a); that the third respondent has given the concerned shop room to another son by name Jayapal for running furniture business and hence that the version put forward by the petitioner that he is running the 'fire works' business therein does not keep the right track of truth. It is further stated that the third respondent has already filed Exhibit R3 (c) complaint before the first respondent against the renewal of licence sought for. W.P.(C) No. 2549/2007 -:5:- 5. The learned counsel for the petitioner submits that the actual number of the building has been correctly shown in Exhibit R3(b) licence produced by the third respondent himself and further that the very same shop room, along with other portions of the building, form the subject matter of the suit pending before the Munsiff's Court, Varkala, which was instituted by the petitioner and others against the 'second wife' of the third respondent. The learned counsel submits that in so far as there is an interim order passed by the competent civil court, not to interrupt with the possession of the petitioner, his mother and sister over the building covered by Exhibit P1 interim order, there was absolutely no justification for rejecting the application for renewal by the first respondent. The learned counsel also placed reliance on the decision rendered by this Court as reported in Marimuthu v. Director General of Police [1999(3) KLT 662] and Muhammed Ishock v. Malappuram Municipality [2000(1) KLT 607] to contend W.P.(C) No. 2549/2007 -:6:- that consent of the landlord/owner of the building is not required for renewal of the licence by the statutory authorities. 6. The learned counsel for the third respondent submits that the possession of the shop room has not been transferred and that the petitioner cannot be regarded as a person who is occupying the premises in legally acceptable manner. It is also pointed out that the dictum contained in the above decisions is not applicable to the case in hand, in view of the black and white difference between the facts and circumstances involved. 7. As discussed already, the licence granted by the first respondent in favour of the petitioner was originally with respect to the building No.K.P.-V/1070 situated in the 'Kadakkavoor Panchayath', which was subsequently transferred in respect of the building bearing W.P.(C) No. 2549/2007 -:7:- No.V.P.VII/643 of the Vakkom Panchayath as evident from Exhibit R3(b). It is relevant to note that there was no objection whatsoever for the first respondent, any statutory authorities or even for the third respondent at that point of time. In any view of the matter, as on date, the available materials on record reveal that the petitioner is in occupation of the concerned premises doing business on the basis of the licence issued by the first respondent (specifically mentioning the number of the building). In so far as the possession of the petitioner over the building stands endorsed by a civil court as evident from Exhibit P1 order, it cannot be said that consent of the actual owner (eldest brother of the petitioner or third respondent father as the case may be) is a mandatory requirement for renewal of the licence. This view gets support from the discussion as to the scope of renewal of licence, as dealt with by this Court in the decisions cited herein before also in the decision reported in 2000(1) KLT 607 - though some W.P.(C) No. 2549/2007 -:8:- difference can be drawn with regard to the factual points involved. 8. In the above facts and circumstances, this Court finds it difficult to sustain the reasoning given by the first respondent for rejection of the application submitted by the petitioner for renewal of the licence and accordingly, Exhibit P6 is set aside. The first respondent is directed to consider the application for renewal afresh, notwithstanding the absence of consent from the 'proclaimed owner' of the building bearing No.V.P.VII/643 of the Vakkom Panchayath and renew Exhibit R3(b), if the petitioner is otherwise eligible. This, however, will be without prejudice to the right of the third respondent or the so called 'original owner' of the concerned building, to proceed against the petitioner for appropriate reliefs including to establish the actual possession/ownership of such other aspects and also to pursue steps for cancellation of the licence, if available under the relevant provisions of W.P.(C) No. 2549/2007 -:9:- law. Final orders in this regard shall be passed as expeditiously as possible, at any rate, within a period of four months from the date of receipt of a copy of this judgment. The writ petition is allowed to the above extent. No costs. Sd/- P.R.RAMACHANDRA MENON, JUDGE. skr // True copy // P.A. to Judge.