IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 21ST OCTOBER 2010 / 29TH ASWINA 1932 WP(C).No. 4984 of 2010(W) -------------------------------- PETITIONER(S): ------------------- M/S.RISHA PETROLEUM, BHARAT PETROLEUM DEALERS, PUTHENATHANI ROAD,KALPAKANCHERRY.P.O, MALAPPURAM-676 511, REPRESENTED BY ITS PROPRIETOR, SMT.ZEENATH ISMAIL, ELAMKULAM HOUSE, IRINGAVOOR.P.O, MALAPPURAM. BY ADVS. SRI.N.RAGHURAJ SMT.K.AMMINIKUTTY RESPONDENT(S): -------------------- 1. THE TIRUR MUNICIPALITY, TIRUR, MALAPPURAM DISTRICT, REPRESENTED BY ITS SECRETARY. 2. THE SECRETARY, TIRUR MUNICIPALITY, MALAPPURAM DISTRICT. 3. BHARATH PETROLEUM CORPORATION LTD., REPRESENTED BY ITS TERRITORY MANAGER, 3RD FLOOR, CEEKAY TOWERS,VANDIPETTY, KANNOOR ROAD, NADAKKAVU.P.O, KOZHIKODE 673 011. * ADDL. R4 & R6 ARE IMPLEADED 4. JAMEELA, W/O. ALI MOHAMMED, RESIDING AT THEKKAN KUTTOOR AMASAM DESAM, TIRUR. 5. AMINU.W/O.PARAPPURATH MOIDEEN KUTTY HAJI,OF -DO-DO- 6. ASMABI, W/O. PARAPPURATH MUHAMMED KUTTY,OF -DO- -DO- * ADDL.R4 & R6 ARE IMPLEADED AS PER ORDER DATED 11/03/10 IN I.A. NO.3118/2010. R1 & R2 BY ADV. SRI.K.I.ABDUL RASHEED R3 BY ADV. SRI.S.SUJIN R4 BY ADV. SMT.SREELATHA PARAMESWARAN NAIR R4 & R6 BY ADV. SRI.P.PARAMESWARAN NAIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SVS/ WP(C).No. 4984/2010(W) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER OF APPOINTMENT BEARING NO.CLT TER/ADHOC/TIRUR DATED 14/05/2008 ISSUED BY THE 3RD RESPONDENT. P2: COPY OF THE LETTER BEARING NO.CLT/TER/ADHOC/TIRUR DATED 12/11/2009. P3: COPY OF THE REQUEST DATED 24/12/2009 BY THE 3RD RESPONDENT BEFORE THE 2ND RESPONDENT. P4: COPY OF THE APPLICATION FOR LICENSE SUBMITTED BY THE PETITIONER. P5: COPY OF THE COVERING LETTER DATED 09/01/2010. P6: COPY OF THE DEMAND DRAFT. P7: COPY OF THE NOTICE BEARING NO. DATED 11/01/2010. P8: COPY OF THE REPLY DATED 21/01/2010. P9: COPY OF THE NOTICE BEARING NO.H1-13213/09 DATED 02/02/2010. P10: COPY OF THE APPEAL. P11: COPY OF THE JUDGMENT DATED 05/12/2009 IN OS NOS.195/08 & 80/2009. P12: COPY OF THE APPLICATION UNDER RTI ACT. P13: COPY OF THE REPLY. P14: COPY OF THE PROFESSIONAL TAX RECEIPT. P14(a):COPY OF THE PROFESSIONAL TAX RECEIPT. P15: COPY OF THE LETTER OF CONSENT DATED 24/12/2009 ISSUED BY THE 3RD RESPONDENT. P16: COPY OF THE RECEIPT DATED 08/07/2010 ISSUED BY THE 3RD RESPONDENT. RESPONDENT'S EXHIBITS: R2(a): COPY OF THE LETTER NO.H1-13213/2009 DATED 02/02/2010. /TRUE COPY/ P.A. TO JUDGE SVS/ S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 4984 of 2010 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of October, 2010 J U D G M E N T The petitioner in this writ petition was granted an adhoc dealership for sale of petroleum products by the Bharath Petroleum Corporation Limited (BPCL for short) within the jurisdiction of the Tirur Municipality. The property originally belonged to one Mammi Haji. The said Mammi Haji granted a lease in respect of the property in 1958 for a period of 30 years in favour of BPCL. Mammi Haji was granted a petroleum dealership by the BPCL in the same property for running a petroleum outlet in the name and style of “M/s. Mammi Haji & Sons”. That dealer had a licence from the Municipality for running the petroleum outlet. Subsequently, after the death of Mammi Haji, the licence was renewed in the name of his son Sri.K. Abdul Khader. The lease was also renewed from time to time till 2008 and the said Abdul Khader continued to be the dealer. It appears that, in 2008, the dealership in W.P.(C)No. 4984 of 2010 2 favour of Sri. Abdul Khader was terminated. The lease in favour of BPCL in respect of the property was not renewed by the said Sri. Abdul Khader. Thereafter, BPCL granted a dealership to the petitioner to run the petroleum outlet on adhoc basis, pending selection of regular dealer. There arose disputes between BPCL and the owner of the property regarding continuation of occupation of the property on lease. In the meanwhile, it appears that the said Sri. Abdul Khader created rights in the property in favour of respondents 4 to 6 and they now claim to be the owners of the property. Two suits were filed by BPCL as O.S. Nos.80/2008 and 195/2008 before the Munsiff's Court, Tirur against the said Sri. Abdul Khader and respondents 4 to 6. That suit was decreed in favour of the BPCL holding that, the BPCL is entitled to protection from eviction under Section 106 of the Kerala Land Reforms Act and restraining the said Sri. K. Abdul Khader and the respondents 4 to 6 herein from interfering with the running of the petroleum W.P.(C)No. 4984 of 2010 3 outlet in the plaint schedule property by the BPCL through any of its duly appointed dealers and from doing any acts adversely affecting the BPCL's possession and enjoyment of the plaint schedule property, as a tenant of the property. The owners were also restrained by a decree of perpetual prohibitory injunction from dispossessing the BPCL from the suit property except in accordance with the procedure established by law. The petitioner for running the dealership of BPCL, submitted an application for a licence under Section 447 & 448 of the Kerala Municipality Act, 1994. According to the petitioner, when the application was presented in person the same was refused to be accepted. Ext.P4 is that application. When the same was refused to be accepted, the petitioner filed another application by registered post along with Ext.P5 covering letter stating that, earlier when the application was tendered, the same was refused to be accepted and therefore the same is being forwarded along with a licence fee of Rs.300/- by demand W.P.(C)No. 4984 of 2010 4 draft, copy of which is Ext.P6. The Municipality thereafter without passing orders on the application for licence, issued Ext.P7 notice alleging that, the petitioner has committed an offence under Sections 447 & 448 of the Kerala Municipality Act,1994 and directing him to show cause as to why prosecution proceedings should not be initiated against the petitioner. There was an offer for compounding the offence also. To the same, the petitioner submitted Ext.P8 reply explaining the position. Thereafter, the petitioner was served with Ext.P9 notice stating that, since the petitioner's application does not conform to Sections 448 & 492 of the Kerala Municipality Act, the same cannot be considered and since the continued running of the petrol bunk is unauthorised, the same shall be closed immediately. The petitioner filed Ext.P10 appeal before the Municipality. Thereafter, the petitioner has filed this writ petition apprehending coercive action on the part of the Municipality, seeking the following reliefs: W.P.(C)No. 4984 of 2010 5 “i) to issue a Writ in the nature of Certiorari or such other writ, order or direction, calling for the records leading to Exts P7 & P9 and to quash the same; ii) to issue a Writ in the nature of Mandamus commanding respondents 1st & 2nd to refrain from closing down the petroleum retail outlet of the petitioner at Tirur. iii) to issue a Writ of Mandamus or such other writ direction or order, directing the 1st respondent to consider and pass orders on Ext.P10 appeal after affording an opportunity being heard to the petitioner. (iv) award to the petitioner the costs of these proceedings and v) to grant such other and further reliefs as are just, proper and necessary or may be prayed for. vi) issue a writ of Mandamus or such other writ direction or order commanding the respondents 1 & 2 to take back the application for license submitted by the petitioner, consider and grant the same without insisting for the written consent from the owners of the property in which the Petroleum retail out let is situate. vii) issue a writ in the nature of Mandamus or such other writ direction or order declaring that written consent from the owners of the property in which the petitioner's Petroleum retail out let is situate, is not necessary to issue license to the petitioner to conduct the retail outlet.” 2. The contention of the petitioner is that, the present dealership is granted by the BPCL who is the tenant of the property for running the petroleum outlet. The outlet was in existence in the property from 1958 onwards. One or the other licensee has been running the same, ever since W.P.(C)No. 4984 of 2010 6 then under authorization from the BPCL. What is being done in the petrol bunk is to sell the petroleum products supplied by BPCL to customers, collect the price thereof and remit it to the BPCL, for doing which, the BPCL would give a commission to the authorised dealer. Therefore, according to the petitioner, the real licensee is BPCL themselves and the petitioner is only a dealer who conducts the petroleum outlet on behalf of BPCL. Therefore, the running of the outlet by the petitioner should be deemed to be a continuance of the original dealership for which the Municipality had issued a licence. Although the dealer has changed, insofar as the BPCL is the owner of the outlet, the dealership should be deemed to be a continuing dealership. According to the petitioner, in such situation the law laid down by this court in Marimuthu v. Director General of Police (1999 (3) KLT 662) must apply which holds that, for renewal of a licence in a leased premises, no consent of the owner is necessary. According to the petitioner, the W.P.(C)No. 4984 of 2010 7 petitioner knew that it is for want of consent of the owner of the property that the Municipality refused to consider his application for licence only after he made enquiries on receipt of Ext.P9 which reason is not stated in Ext.P9. 3. A counter affidavit has been filed by the Municipality taking the contention that, the present application filed by the petitioner is an application for a new licence and therefore as per Sections 492 (3) of the Kerala Municipality Act, it should be accompanied by a written consent of the owner of the premises. Since the application filed by the petitioner was not accompanied by such a consent letter from the owner of the premises, the Municipality was not liable to consider the application is the contention raised. The respondents 4 to 6 claiming to be the present owners of the property have come on record by filing an impleading petition seeking to oppose the prayers in the writ petition on the same grounds as those raised by the Municipality. W.P.(C)No. 4984 of 2010 8 4. I have considered the rival contentions in detail. 5. The facts are admitted. The BPCL took the property on lease as early as in 1958. They have been appointing authorised dealers for running the petroleum outlet in the property ever since then. The petrol bunk itself was constructed by BPCL and therefore they are the owners of the petrol bunk also. The petroleum products sold in the petrol bunk belong to BPCL. The petitioner as the authorised dealer only sells the same and collects the price thereof which has to be remitted to the BPCL for which the petitioner would be paid a commission by the BPCL. Originally owners of the property were themselves the dealers. That dealership was cancelled in 2008. It was thereafter disputes have arisen between the owner of the property and BPCL. Pending those disputes it appears that the owner Sri. K. Abdul Khader sold the property to respondents 4 to 6. After the grant of the adhoc dealership by BPCL the petitioner applied for a licence under the W.P.(C)No. 4984 of 2010 9 Municipality Act by filing Ext.P4 application for licence. According to the petitioner, that was refused to be accepted without assigning any reasons. Thereafter, the petitioner sent another application with Ext.P5 covering letter and Ext.P6 demand draft for licence fee of Rs.300/-. Without rejecting that application, Ext.P7 prosecution notice was issued by the Municipality to which Ext.P8 reply was filed by the petitioner. Thereafter, Ext.P9 intimation was issued to the petitioner stating merely that the petitioner's application cannot be considered since the same is not in accordance with Sections 448 and 492 of the Municipality Act without stating exactly as to what are the defects in the application. But in the same notice, instead of directing the petitioner to submit a proper application after curing the defects, straightaway the Municipality directed closure of the bunk, in fact it is the first time while filing the counter affidavit that the Municipality chose to state the real reason for not considering the application for licence submitted by W.P.(C)No. 4984 of 2010 10 the petitioner. The petitioner has got a contention that, it was at the instance of the said Sri. Abdul Khader that the Municipality has taken such action. It appears to be correct since the said Abdul Khader had filed W.P. (C) No.21/2010 seeking a direction to the Municipality to close the petrol bunk being conducted by the petitioner, which I had dismissed as infructuous on the request of the petitioner in that writ petition, today. 6. The petitioner had filed I.A. No. 6641/2010 stating thus: “3. After admitting the above Writ Petition on file this Honorable Court was pleased to issue an interim order staying all further proceedings pursuant to Exts.P7& P9. The said interim was thereafter being extended by this Honorable court time and again. In the meanwhile the petitioner herein made certain enquiries in the office of the 1st respondent from where it was understood that there at least 4 petroleum retail outlets functioning in rented/Leased hold premises within the Tirur Municipal area, namely: (a) Prakash Gas Agency (b) Hamsa Hajee Sons (c) International Petroleum (d) Reliance Petroleum The enquiries made by the petitioner also revealed that the 1st & 2nd respondents have issued license to the above mentioned establishments to function petroleum retail outlets without insisting for the consent letter of their respective land lords/land owners. It is pertinent to submit that the 1st & 2nd respondents who are all out to see that the petroleum retail W.P.(C)No. 4984 of 2010 11 established by the petitioner herein is closed for not having a license under Sections 447 & 448 of the Kerala Municipality Act, have no objection whatsoever in the aforesaid petroleum retail outlets conducting their retail outlets without the consent in writing from their respective land lords. This double standard of the 1st & 2nd respondents speaks volumes about the malafide motives in their actions against the petitioner. It is crystal clear that the 1st and 2nd respondents are acting as the agents of the land lords of the property in which my petrol bunk is situate, to evict me from the premises. In order to expose the malafide and the double standards exhibited by the 1st & 2nd respondents in the matter, it is necessary to direct them to produce the files relating to the aforesaid Petroleum retail outlets for the perusal of the Hon'ble Court.” To the same, a counter affidavit has been filed by the Municipality stating thus: “3. It is respectfully submitted that this respondent is not in a position to answer the averments that the respondents 1 & 2 have issued licence to the establishments mentioned in the affidavit to function petroleum retail outlets without insisting for the consent letter of the respective landlords/land owners, since the file relating to the same could not be traced out in spite of repeated efforts. The licence in respect of the said establishments are seen issued years back. At the time of shifting of the different sections certain old files have been misplaced and hence this respondent is not in a position to produce the same. However this respondent verified the D & O Register and the Assessment Register in respect of the above mentioned establishments and has found that the licensee of M/s. Prakash Gas Agency is one Jayaprakash Narayanan and he himself is the building owner as per the Assessment Register. It is also revealed that one Sri. Nazaruddin is the Licensee as well as the assessee of the building in respect of International Petroleum. Likewise one K.V. Rama Moorthy, Programme Manager, is the licensee as well as the owner of the building in respect of M/s. Reliacne Petroleum. In the case of Hamsa Hajee & Sons one Mohd.Jaleel is the licensee and on enquiry it is revealed that he himself is the owner of the property, though the assessment of the building therein stands in the name of Divisional Manager, Indian Oil Corporation.” W.P.(C)No. 4984 of 2010 12 Here also, the Municipality has not come forward with clear facts, instead only vague replies are given. I am unable to believe that, in respect of existing petroleum outlets, the Municipality would not have appropriate files. It is in this context that I should appreciate the contention of the petitioner that, it is at the instance of the said Sri. Abdul Khader and respondents 4 to 6 that the Municipality has chosen to take this action, while they did not insist on similar consent letters from the other dealers in Tirur Municipality area itself. 7. Now for deciding the legal question involved as to whether consent of the owner of the property is necessary in respect of licence applied for by the petitioner, I must refer to sub-section (1) to (4) of Section 492 of the Kerala Municipality Act, 1994. The same read thus: “492. General provisions regarding licences and permissions.- (1) Every licence and permission granted under this Act or any rule or bye-law made thereunder shall specify the period, if any, for which, and the restrictions, limitations and conditions, subject to which, the same is granted and shall be signed by the Secretary. W.P.(C)No. 4984 of 2010 13 (2) Every licence issued by the Secretary shall specify the person to whom, the premises in respect of which, and the trade or business or undertaking for which the licence is granted and for any change in the person, the premises or the business, trade, or undertaking, a fresh licence or permission shall be taken with or without payment of further fee as the Municipality may fix. (3) Where any person intending to obtain a licence or permission for the first time and where the applicant is a person other than the owner of the premises in question, he shall, along with the application produce the written consent of the owner of the premises and the period of the licence shall not exceed the period, if any, specified in the consent. (4) Where the applicant seeking renewal of a licence or permission in respect of the trade or business licensed in the premises mentioned in sub-section (3) is a person different from the original licensee or not the legal heir of the original licensee the consent of the owner shall be required. Going by the same, not only for the first time but also for renewal, where the subsequent licensee is not the original licensee or legal heir of the original licensee, consent of the owner is required. In the Division Bench decision in Marimuthu's case (supra) the Division Bench was considering the case of lack of consent by a tenant holding over for issuance of the licence for conducting a business. The contention of the Municipality is that, the said decision applies only in case of renewal of licence and not to original grant of licence. According to them, the present case is one W.P.(C)No. 4984 of 2010 14 of fresh licence in the name of the petitioner and not the case of the renewal of a licence. Therefore, according to them, the provisions of sub sections 3 & 4 of Section 492 squarely apply, in which case without a consent letter from the owners of the property the Municipality is not obliged to consider the application filed by the petitioner. 8. From the facts stated in the said decision, it is not quite clear as to whether that was a case of granting a fresh licence or a renewal of licence or renewal of a licence in the name of a new licensee. But there are indication to the effect that it was a case of application for a new licence going by the statement in paragraph 8 of the judgment. But essentially from the judgment, I find that, the reasoning is that, a tenant holding over who has serious disputes with the landlord cannot be expected to obtain a consent letter from the owner of the property especially when civil suits have been filed and the tenant had obtained a decree from a civil court in his favour. In paragraph 17 of the judgment it W.P.(C)No. 4984 of 2010 15 is held thus: “17. A statutory tenant under the Kerala Buildings (Lease & Rent Control) Act can be evicted only as per the provisions of the said Act, on the grounds enumerated therein. Since the possession of the tenant is lawful, the landlord is not entitled to withhold his consent for the conduct of the business for which the premises were given on rent. In the instant case, we are satisfied that the landlord is purposefully and with malafide intention withholding consent inspite of the direction from this Court. Under such circumstances, the Corporation also cannot insist upon production of written consent from the landlord for the purpose of issuance of licence for the conduct of business in the premises in question. For carrying on business in readymade dress a licence issued under S. 492 of the Kerala Municipality Act is necessary. As on date, the petitioner is not having any licence to carry on such business. A person in occupation can be allowed to carry on a trade or business which requires a licence, only after obtaining such licence.” From the same it is clear that the facts of that case is similar to those of those of this case. Here also the rights of BPCL have been declared by the civil court and therefore the owner cannot evict them from the land. The lease itself is for conducting a petroleum outlet therein. Because of the acrimony between the parties it is clear that the owner is attempting to evict BPCL from the land and therefore the owner will not give consent for licence either in favour of BPCL or the petitioner. As such the owner is withholding consent deliberately and there is every reason to believe W.P.(C)No. 4984 of 2010 16 that the owner is using the Municipality in his designs to force BPCL out of the land and the Municipality is willingly allowing the owner to use them for the same. Therefore there is no logic, reason or justice in directing the petitioner to obtain a consent letter from the owner. Therefore, as directed in that decision, it is only just and equitable to direct the Municipality to consider the application for licence submitted by the petitioner without insisting upon production of a written consent from the owner of the premises. 9. There are other reasons also why the Municipality cannot insist on a written consent of the owner of the premises in this case. As I have already stated, in this case, the lessee of the premises is the BPCL and not the petitioner. In fact the petitioner has no privity of contract with the owner of the property. The owner of the property had given the lease to BPCL specifically for running a petroleum outlet in that property and the petroleum outlet W.P.(C)No. 4984 of 2010 17 was established by the BPCL in that property. In fact the owner himself was the dealer running the same outlet on behalf of BPCL till 2008. In Ext.P11 judgment of the civil court, the civil court had injuncted the owners of the property from interfering with the running of the petroleum outlet in the plaint schedule property by BPCL “through any of its duly appointed dealers”. I am