IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 13TH OCTOBER 2010 / 21ST ASWINA 1932 WA.No. 1321 of 2010 --------------------- AGAINST THE JUDGEMENT IN WPC.14261/2010 Dated 16/07/2010 .................... APPELLANT/3rd RESPONDENT: -------------------------------- K.R.MOHANAN, S/O.KUTTIRAMAN EZHUTTASSAN KOTTATTUKULAMBIL, THIRUVILWAMALA, PAZHAYANNUR, THRISSUR- 680588 BY ADV. SRI.M.VIJAYAKUMAR RESPONDENTS/PETITIONER & RESPONDENTS 1, 2 & 4: ------------------------------------------------------------ 1. NARAYANANKUTTY ALIAS, HARIDAS, S/O.KRISHNANKUTTY GUPTAN, PATTIPARAMBU KOOTTUPATHA, THIRUVALVAMALA, THRISSUR DISTRICT PIN-680588 2. THIRUVILWAMALA GRAMA PANCHAYATH, THIRUVILSAMALA,THRISSUR DISTRICT PIN=680588 REPRESENTED BY ITS SECRETARY, 3. THE SECRETARY,THIRUVILWAMALA GRAMA PANCHAYATH,THRISSUR DISTRICT PIN-680588 4. K.MEENAAKSHIKUTTY, THIRUVILWAMALA GRAMA PANCHAYATH,THIRUVILWAMALA P.O THRISSUR DISTRICT PIN-680588 R1 BY ADV. SRI.G.HARIHARAN SRI.PRAVEEN.H R2 & R3 BY ADV. SRI.BINOY VASUDEVAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & P.R. Ramachandra Menon, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 1321 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of October, 2010 JUDGMENT Ramachandra Menon, J. The 3rd respondent in the Writ Petition, who is the landlord of a building which was initially let out to the 1st respondent/tenant way back on 12.08.1999, on the basis of oral lease agreeing for a monthly rent of `.750/- for running a bakery, is the appellant. 2. The tenant was running the business on the strength of the licence granted by the Panchayat. After the expiry of the initial period of one year, the lease continued and according to the landlord, default occurred with regard to the payment of rent from the year 2005 onwards, pursuant to which, the lease is stated as terminated. While so, apprehending coercive steps from the part of the Panchayat, the tenant approached the Civil Court by filing a suit for injunction to restrain the Panchayat from evicting the tenant from the premises; wherein the landlord was not made a party WA No. 1321 of 2010 -:2:- and the suit was dismissed later. 3. The Panchayat issued Ext.P3 notice dated 10.08.2007 directing the tenant to close down the business, as the licence was never renewed; which made the tenant to approach this Court by filing W.P.(C) No. 25235 of 2007 and the said case was disposed of as per judgment dated 21.08.2007, directing the party to pursue the alternate remedy available under the Statute. Pursuant to the said verdict, the tenant preferred an appeal before the Tribunal for Local Self Government Institutions. After taking note of the rival contentions, the Tribunal allowed the appeal and it was held that the tenant was entitled to have the benefit of 'deemed licence' under Section 236 of the Kerala Panchayat Raj Act. Accordingly, the tenant was occupying the premises, doing his business. The order passed by the Tribunal, admittedly has not been challenged by the owner of the building and has become final. 4. The tenant filed an application before the Panchayat for renewal of the licence for the subsequent year. The Panchayat returned the said application stating that, it was not accompanied with a copy of the 'rent deed' or the 'consent' WA No. 1321 of 2010 -:3:- from the landlord. This was replied by the tenant stating that no consent was necessary, so as to have the licence renewed. Ext.P6 order was passed by the Panchayat on 12.03.2010, dismissing the application for renewal of the licence, which was subjected to challenge by filing W.P.(C) No.9573 of 2010, which was disposed of directing the Panchayat to consider the representation, to be preferred by the tenant and an interim stay was also granted till such time. 5. Meanwhile, the appellant/landlord preferred an application under the Kerala Buildings (Lease and Rent Control) Act, 1965 as RCP No.10 of 2009, seeking for evicting the tenant under Section 11(3) of the said Act. It is stated that the said petition was allowed by the Rent Control Court as per the verdict dated 11.06.2010; which however, is under challenge in appeal preferred by the tenant, wherein an interim order of stay has been passed and is still pending. 6. Pursuant to the direction in W.P.(C) No. 9573 of 2010, the matter was considered by the Panchayat and Ext.P14 order was passed on 23.04.2010 rejecting the application for renewal preferred by the tenant. This in turn was challenged by WA No. 1321 of 2010 -:4:- filing Ext.P15 before the Administrative Committee of the Panchayat which did not turn to be fruitful and the appeal was dismissed by the said Committee, leading to W.P.(C) No.14261 of 2010. After hearing both sides, the learned Single Judge allowed the said writ petition, holding that no consent of the landlord was required for renewal of the licence, in view of the law laid down by a Division Bench of this Court as per Marimuthu v. Director General of Police[1999 (3) KLT 662]. The finding and reasoning given in the said verdict is under challenge in this appeal preferred at the instance of the landlord. 7. The learned counsel appearing for the appellant submits that a specific 'column' has been provided in the application for licence (produced and marked as Ext.P10), wherein an information is required to be furnished, as to “if not the owner of the building or land, whether legal documents showing possession is submitted, if so the details”, which has been answered by the tenant as “deemed licence”. Referring to the said clause, the learned counsel for the appellant submits that the 'consent' of the landlord is very much essential for issuance of the licence and this being the position, the verdict WA No. 1321 of 2010 -:5:- passed by the learned Single Judge is liable to be intercepted. 8. Heard the learned counsel appearing for the 1st respondent/tenant as well as the learned Standing Counsel for the Panchayat. 9. During the course of hearing, the learned counsel for the appellant failed to point out any specific provision in the Kerala Panchayat Raj Act stipulating the necessity to have the 'consent' of the landlord for renewal of the licence. The crucial element to be considered is with regard to the 'possession'. The term 'tenant' has been defined under Section 2(6)(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965. It means “any person by whom or on whose account rent is payable for a building and includes a person continuing in possession after the termination of the tenancy in his favour......”. The facts that the 1st respondent herein was a tenant; that he was continuing to occupy the premises and was issued with the necessary licence earlier; that the deemed licence was conferred upon him by virtue of the finding of the Appellate Tribunal for Local Authorities; the said order passed by the Tribunal has not been subjected to challenge from the part of the landlord etc. are not WA No. 1321 of 2010 -:6:- in dispute. It is also evident from the admitted position that the order of the Rent Control Court in RCP No.10 of 2009 enabling the landlord to have the tenant evicted from the premises under Section 11(3) has been subjected to challenge in appeal, wherein an interim stay has been granted in favour of the tenant. In view of the undisputed fact that there is continued occupation of the premises by the 1st respondent/tenant and by virtue of the interim order of stay granted by the Rent Control Appellate Authority, the application preferred by the tenant for renewal of the licence is liable to be considered by the Panchayat notwithstanding any 'consent' to be given by the landlord. The finding and reasoning given by the learned Single Judge do not call for any interference. 10. The learned Standing Counsel appearing for the Panchayat submits that, pursuant to the further steps taken in the meanwhile, the shop room was caused to be closed down in May 2010 and that the Panchayat will give effect to the verdict passed by the learned Single Judge; for which some breathing time is sought for, to have the proceedings finalized; more so in view of the on-going election process (to the local authorities). WA No. 1321 of 2010 -:7:- In the above circumstance, interference is declined and the appeal is dismissed, however, granting a period of 'three weeks' from the date of receipt of a copy of this judgment, so as to give effect to the verdict and to grant necessary licence as ordered by the learned Single Judge. J.Chelameswar, Chief Justice. P.R. Ramachandra Menon, Judge. ttb