IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 6TH AUGUST 2010 / 15TH SRAVANA 1932 WP(C).No. 2229 of 2010(C) -------------------------------------- PETITIONER(S): ----------------------- V.AMUDINI, AGED 50, D/O. VASUMATHI, KALPAKASSERY VEEDU, NOW RESIDING AT TC 30/811, PUTHEN ROAD, PETTAH P.O., THIRUVANANTHAPURAM. BY ADVS. SRI.S.V.RAJAN, SRI.R.SUDHISH, SMT.M.MANJU, SMT.V.P.GEETHA KUMARY, SMT.SHIBI. K.P., SRI.A.N.PREMLAL, SMT.S.MANJU, SRI.C.P.JAGADESH, SRI.S.VINOD, SRI.R.VIVEK. RESPONDENT(S): ----------------------------- 1. THE CORPORATION OF THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2. B.LEELA, D/O. BHANUMATHY, BHANU COTTAGE, PUTHEN ROAD, PETTAH P.O., PETTAH VILLAGE, THIRUVANANTHAPURAM-695 024. R1 BY SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE, BY ADV. SRI.P.K.MANOJKUMAR. R2 BY ADVS. SRI.M.RAJAGOPALAN NAIR, SRI.S.JAYAPRAKASH (MADAVOOR). THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.2229/2010 C APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE RECEIPT UNDER REF.NO.14 DTD. 11/06/2008 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. P2: COPY OF THE ORIGINAL PETITION IN RCP NO.21/2009 ON THE FILE OF THE RENT CONTROL COURT, THIRUVANANTHAPURAM. P3: COPY OF THE APPLICATION DTD. 02/06/2009 FOR RENEWAL OF LICENCE SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. P4: COPY OF THE LETTER UNDER REF.NO.H 10/50139/08 DTD. 26/06/2009 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. P5: COPY OF THE COMPLAINT NO.B11/2009 DTD. 30/06/2009 FILED BY THE 2ND RESPONDENT BEFORE THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS. P6: COPY OF THE PETITIONER'S REPRESENTATION DTD. 05/10/2009 BEFORE THE 1ST RESPONDENT. P7: COPY OF THE RECEIPT NO.50223 DTD. 06/10/2009 ISSUED BY THE 1ST RESPONDENT FOR THE RECEIPT OF EXHIBIT P5 REPRESENTATION. P8: COPY OF THE STATEMENT OF OBJECTION DTD. 05/11/2009 FILED BY THE PETITIONER BEFORE THE OMBUDSMAN. P9: COPY OF THE ORDER DTD. 05/11/2009 OF THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS IN COMPLAINT NO.811 OF 2009. P10: COPY OF THE COMMISSION REPORT DTD. 22/08/2009 FILED BY SMT. M.V. VINUSHA, ADVOCATE COMMISSION IN RCP NO.21/2009 ON THE FILE OF THE RENT CONTROL COURT, THIRUVANANTHAPURAM. RESPONDENT'S EXHIBITS: R2(A): COPY OF THE ORDER DTD. 13/11/2009 IN RCP NO.21/2009 PASSED BY THE RENT CONTROL COURT, THIRUVANANTHAPURAM. R2(B): COPY OF THE FIR IN CRIME NO.434/2008 OF VANCHIYOOR POLICE. R2(C): COPY OF THE ORDER DTD. 25/08/2009 REJECTING THE APPLICATION FOR RENEWAL OF LICENCE FOR 2009-10 SUBMITTED BY PETITIONER. /TRUE COPY/ P.A.TO JUDGE Kss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.2229/2010-C ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 6th day of August, 2010 J U D G M E N T The petitioner is conducting a restaurant in a building owned by the second respondent. According to the averments in the writ petition, the building was taken on rent on 01/02/2008. Initially, in the year 2008-09, licence was granted. Thereafter, the Landlady sought eviction by filing RCP 21/2009, a copy of which is produced as Ext.P2. By Ext.P3 dated 02/06/2009, the petitioner submitted an application for renewal of licence. By Ext.P4, the Corporation informed the petitioner that the application for licence is rejected mainly for the reasons that there is a report made by the Health Inspector staying non- compliance of certain conditions of licence and certain cases are pending in different courts. Later, the second respondent approached the learned Ombudsman for the Local Self Government Institutions and the learned Ombudsman passed an order as Ext.P9. Same is against the petitioner. Thereafter, by Ext.P10, a notice was issued in terms of the directions issued by the learned Ombudsman. These are under challenge in this writ petition. The first and second respondents have filed counter affidavits supporting these orders. W.P.(C). No.2229/2010 -:2:- 2. The order passed by the learned Ombudsman shows that a direction was issued to the Corporation to take steps to close the business run by the petitioner and to finalise the proceedings within a period of two months. Mainly it is pointed out that the petitioner has not challenged Ext.P4 before the Tribunal and there is no consent by the Landlady. It is also mentioned that O.S.No.1598/2008 filed by the petitioner was dismissed for default and nuisance is there for the second respondent who is residing in the upper portion. 3. The counter affidavit filed by the Corporation shows that the petitioner had filed an application dated 02/06/2009 for renewal of licence, on which an enquiry was made by the Corporation through the Health Inspector. Non- compliance of certain rules of the building rules were pointed out by the Health Inspector. Ext.P10 notice is issued in compliance of the order passed by the learned Ombudsman. It is also mentioned in paragraph (6) of the counter affidavit that the petitioner has rectified the defects in the notice issued by the Corporation and she has submitted Ext.P6 representation and because of the pendency of several cases before different Courts, the said application was not considered by the Corporation. It is W.P.(C). No.2229/2010 -:3:- also mentioned that licence was not issued to the petitioner since she has not complied with the statutory requirements for obtaining a valid licence under the provisions of the Kerala Municipality Act. 4. The learned counsel appearing for the second respondent also submitted that the petitioner produced a consent letter which was not signed by the second respondent. The matter regarding eviction is pending before the Rent Control Appellate Authority and Ext.R2(c) notice issued by the Corporation has become final and no appeals have been filed before the Tribunal also. 5. Evidently, in Ext.P4 no detailed reasons have been shown for rejecting the renewal of licence. What is mentioned is only that the Health Inspector's report is there showing non-observance of certain conditions of the licence and that several cases are pending before different forums. Actually, as a licensing authority, the Secretary will have to consider whether the petitioner is entitled for renewal of licence or not. The pendency of the rent control matter is not a reason for the Secretary to reject the application for licence. It is ultimately for the Landlady to execute the order of eviction if the proceedings end in an order of eviction. Ext.R2(c) notice W.P.(C). No.2229/2010 -:4:- details certain defects which had to be rectified by the petitioner to which Ext.P6 reply was given stating that the petitioner has complied with all the directions. Thereafter, it is a matter which the Corporation will have to re-verify by deputing the Health Inspector. No fresh orders were passed after Ext.P6 was received. In the meanwhile, it appears that the complaint raised by the second respondent was disposed of by the learned Ombudsman. Evidently, in Ext.P9 also, the learned Ombudsman directed notice to be issued only on the basis that the licence is not renewed. Whether the petitioner's application for licence was considered on the merits by the Corporation has not been decided finally by the learned Ombudsman also. The entitlement for renewal of licence has not been found against. What is mentioned is that against Ext.P4, the petitioner had not approached the Tribunal. As noticed already, in Ext.P4 detailed reasons have not been shown and the petitioner replied it as per Ext.P6. Thereafter, no orders were communicated rejecting the application for renewal. In that view of the matter, the order passed by the learned Ombudsman cannot be supported. 6. Evidently, the Corporation will have to consider whether the petitioner is entitled for renewal of licence W.P.(C). No.2229/2010 -:5:- in the light of the relevant provisions of the Act and the rules and after finding out whether the petitioner has complied with all the directions issued by the Health Inspector or by the Corporation itself, the same has to be independently considered by the Corporation also. But Ext.P10 is issued only on the basis of Ext.P9 order passed by the learned Ombudsman. The learned Ombudsman has passed an order evidently on the basis that the Corporation has not renewed licence and therefore, I am of the view that the matter will have to be independently considered by the Corporation, untrammelled by the pendency of the rent control petitions or any other proceedings before the Civil Courts. 7. In that view of the matter, Exts.P4, P9 and P10 are hereby quashed. There will be a direction to the Secretary of the Corporation to consider the application for renewal of licence in accordance with the rules and after deputing a competent officer to conduct a local inspection. The petitioner will be duly issued a notice in the matter after conducting the local inspection and, thereafter, a hearing will be conducted with notice to the petitioner and the second respondent. Appropriate orders will be passed on the application for renewal of licence W.P.(C). No.2229/2010 -:6:- within two months from the date of receipt of a copy of this Judgment. Till then, the status quo as on today will be maintained. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms