IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE MONDAY, THE 28TH JANUARY 2008 / 8TH MAGHA 1929 WP(C).No. 35508 of 2007(B) -------------------------- PETITIONERS: ------------ 1. P.VISHWANATHAN, S/O.C.S.PADMANABHAN, AGED 45 YEARS, KUDLU, P.RAMDAS NAGAR, KASARAGOD DISTRICT. 2. K.K. ABOOBACKER HAJI, KOVVAL PALLI, SOUTH KANHANGAD, KASARAGOD. BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENT: ------------- KANHANGAD MUNICIPALITY, REPRESENTED BY THE SECRETARY, KANHANGAD. BY ADV. SRI.T.K.VIPINDAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.35508/07 APPENDIX PETITIONER'S EXHIBITS:- P1: Photo copy of representation dated 30-3-2007 submitted by the petitioners. P2: True copy of the order No.R3/3046/01 dated 20-8-2007 of the 1st respondent. P3: True copy of the petition dated 5-10-07 submitted by the 1st petitioner. P4: True copy of the receipt demand No.102336 book No.112052 dated 9-10-07 P5: True copy of the rent deed dated nil executed in stamp papers. P6: True copy of the notice No.R3-10732/07 dated 29-11-07 issued to all 10 shop room owners. P7: True copy of the intimation No.R3-12559/07 dated 17-10-07 issued to P.Kunhabdulla for Stall No.5 P8: True copy of intimation No.R3-2220/07 dated 20-7-07 issued to N.V. Janardhanan for shop room No.6 P9: True copy of the intimation No.R3-8623/99 dated 21-5-07 issued to K.M.Suresan for stall No.7. P10: True copy of the intimation No.R3-8623/99 dated 19-9-07 issued again to K.M.Suresan for stall No.7 P11: True copy of the rent receipt No.75 dated 5-11-07 issued to shop room owner Narayanan T.V. P12: True copy of rent receipt No.93 dated 3-12-07 and Janardhanan N.V. P13: True copy of the concession certificate dated 31-12-2002 issued to the petitioenr by the Ministry of Railways. REPONDENTS' EXHIBITS:- R1(a): True copy of the mahazar R1(b): license deed dated 20-8-2006 Pius C. Kuriakose, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 35508 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of January,2008 JUDGMENT Grievance, which is voiced by the petitioners in this writ petition, is that stall, having door No.8 in the bus stand belonging to the Kanhangad Municipality, has been forcibly taken over in violation of principles of natural justice. The Municipality has field a detailed counter affidavit, through which the Municipality justifies its action on the reason that the premises has been sub-let by the petitioners in favour of somebody else. 2. Heard learned counsel for the petitioners and the learned standing counsel for the Municipality. 3. Learned counsel for the petitioners submits that there is no subletting at all. But the 1st petitioner had serious health problems and his wife was also having gynecological problems, which necessitated the 1st petitioner to entrust the room with a care taker as a short term arrangement. It is because of that, that the premises were occupied by a stranger. According to the learned counsel, the relationship between WPC 35508/07 2 them is the possessor and caretaker and not that between lessee and sub-lessee. 4. Learned counsel relied on a decision of the Supreme Court in 2005(2) KLT 515 and submitted that the finding that the petitioner has sublet the premises was entered behind the back of the petitioner and thus the principles of natural justice has been violated. The learned standing counsel for the Municipality submits that the petitioners are not entitled for favourable exercise of discretion of this Court under Article 226 of the Constitution as they are late comers. It is also submitted that after the stall was taken over from the petitioners, a public auction was conducted and in that auction the stall had been purchased by one K.M. George for an amount of Rs.16,030/- per mensum. The Municipality offered the room to the petitioner notwithstanding the auction provided that the petitioner is willing to pay Rs. 16,030/- offered by Sri. George. Learned counsel for the petitioner submits that the petitioner will not be able to offer Rs.16,030/- as suggested by the Municipality. According to him, all the other 9 stalls have been let out for the respective payment of 7.5 % WPC 35508/07 3 increase over the existing rate. The petitioner is also prepared to pay an increase of 7.5% . 5. As directed by this Court the Municipality has produced Ext.R1(b) agreement executed between the Municipality and the 1st petitioner. Ext.R1(b) seems to be substantially same as Ext.P5. My attention was drawn by the learned counsel for the petitioners to sub- clause(3) of clause 4 of Ext.R1(b) in support of the argument that the petitioners are entitled for a renewal after the expiry of the period. I am not inclined to accept this argument. At the most the petitioner is entitled to renewal for one more year on expiry original period of one year. Even then it will be noticed that as a matter of fact the Municipality had been allowing renewal of lease in favour of the existing stall keepers. Whether or not the actual sub-letting and what has been there the relationship between the petitioners and the persons in possession are all matters in controversy. I do not think it will be possible this Court to settle such controversial facts in this jurisdiction. I am of the view that such controversial issues are to be settled before a competent civil court. WPC 35508/07 4 6. Hence, I dispose of the writ petition relegating the petitioner to remedies from a civil court by instituting a suit in which Sri K.M.George also shall be made a party. However, it is ordered that the interim order passed by this Court will continue for five weeks from today. Pius C. Kuriakose, Judge. mn.