IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 18TH DECEMBER 2009 / 27TH AGRAHAYANA 1931 WP(C).No. 34836 of 2009(Y) -------------------------------------- PETITIONER: ------------------- ANZAR RAHIM, AGED 62 YEARS, S/O.LATE A.A.RAHIM, PALM GROVE, THEKKEVILA, KOLLAM. BY ADV. MR.C.RAJENDRAN. RESPONDENTS: ------------------------ 1. RAHIYANATH AZAD, W/O.AZAD RAHIM, MALIKA VEEDU, LEKSHMI NADA, KOLLAM. 2. THE THRIKKADAVOOR GRAMA PANCHAYATH, ANCHALUMMOODU, REPRESENTED BY ITS SECRETARY. 3. THE SECRETARY, THE THRIKKADAVOOR GRAMA PANCHAYATH, ANCHALUMMOODU, KOLLAM. 4. THE TRIBUNAL, FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM, REPRESENTED BY THE SECRETARY. R4 BY SR. GOVT. PLEADER MR. K.C. SANTHOSH KUMAR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/12/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. S. SIRI JAGAN, J ................................................ W.P(C) No. 34836 of 2009 ................................................. Dated this the 18th day of December, 2009 J U D G M E N T The subject matter of this writ petition is a lake resort and an auditorium at Kollam. Presently the same is being conducted by the 1st respondent who is the sister-in-law of the petitioner. On expiry of the period of licence, she applied for renewal of licence. That was rejected by the Secretary of the Thrikkadavoor Grama Panchayath. The 1st respondent filed an appeal before the Panchayath committee against the order rejecting the renewal application. That appeal was also dismissed. The 1st respondent filed an appeal before the Tribunal for Local Self Government Institutions. The Tribunal, by Ext.P8 order, set aside the orders of the Secretary and the Panchayath and directed renewal of the licence for the period 2009-2010 as per the application of the 1st respondent. The petitioner is challenging Ext.P8 order. According to the petitioner, the 1st respondent is not one of the legal heirs of the erstwhile owner on his death and therefore without consent from all the legal heirs of the former owner under whom the 1st respondent was running W.P(C) No. 34836 of 2009 -2- a restaurant, the licence cannot be renewed. The petitioner therefore submits that the order of the Tribunal is patently legal and unsustainable. 2. I have considered the arguments of the learned counsel for the petitioner. The Secretary of the Panchayath rejected the application for renewal on two grounds. The first is that no documentary evidence of right to occupy the building has been produced by the petitioner. The second is that the lease deed on the basis of which the 1st respondent has claimed renewal of licence expired on 26.3.2009 and hence she is not eligible for renewal of licence for the period 2009-2010. These reasons have been negatived by the Tribunal thus: “Pages 233 and 234 of the file produced by Counter Petitioners 1 and 2 is the application dated 6.2.2009 for renewal of the licence of the resutarant for the period 2009-10. Pages 249 to 253 of the file contain two copies of the order dated 21.2.2009 rejecting the application dated 6.2.2009. Two reasons are stated as reasons for rejecting the application in the order of the Secretary. The first reason is that no documents evidencing right to occupy the building is produced along with the application. There is no provision of law making it necessary to produce any such document along with an application for renewal of existing licnce. Right to possess the building is to be established only for granting the licence for the first time and not in renewing the existing licence for further period. The second ground stated in the order of the Secretary is that the lease deed produced expires on 26.3.2009 and hence it does not enable renewal of licence for the period 2009-10. Once the lessee, the person will W.P(C) No. 34836 of 2009 -3- continue as a lessee until the lease is lawfully terminated. It was held in Marimuthu vs. Director General of Police (1999(3) KLT 662) that the Corporation cannot insist upon the tenant holding over to production of written consent from the landlord for the purpose of issuing of licence for conducting business. As per the said decision even for granting licence for the first time it is not necessary to produce the written consent from the landlord by the tenant holding over. The application rejected by the Secretary by his order dated 21.2.2009 was not any application for licence for the first time but it was only an application for renewal of licence. So the said application would have been allowed without insisting on any proof as to right to occupy the building. Apparently the order dated 21.2.2009 of the Secretary rejecting the application for renewal of licence is not sustainable. Pages 255 to 257 of the file is the Appeal filed by the Petitioner against the order of the Secretary dated 21.2.2009. As per the pleadings of the Counter Petitioners the impugned decision was taken on the said Appeal filed by the Petitioner against the order of the Secretary dated 21.2.2009. Copy of the said decision is produced from the side of Counter Petitioners 1 and 2 separately though no such copy is found in the file produced. For the reasons already pointed out above, the Appeal would have been allowed but the Panchayat Committee took the decision No.1 dated 22.9.2009 to reject the Appeal only. In the decision the Appeal is referred to as Appeal dated 6.4.2009 but at the hearing no such Appeal dated 6.4.2009 is pointed out from the side of Counter Petitioners and it is submitted that the Appeal disposed of by the impugned decision is the Appeal found on pages 255 to 257 of the file. It is Appeal dated 7.3.2009 and endorsed as received on 12.3.2009 and is against the order of the Secretary dated 21.2.2009 rejecting the application for renewal of licence. In the circumstances pointed out above, the impugned decision and consequential notice are not sustainable and are liable to be set aside, along with the order of the Secretary dated 21.2.2009 upheld by the impugned decision, and the application dated 6.2.2009 for renewal of the licence for the period 2009-10 is only to be allowed.” W.P(C) No. 34836 of 2009 -4- On a reading of the same, I do not find any infirmity whatsoever in the reasoning of the Tribunal. Therefore the writ petition is without merits and accordingly the same is dismissed. Of course if the petitioner has any dispute regarding title etc it is for the petitioner to approach the appropriate Civil Court for appropriate remedies. The dismissal of this writ petition will stand in the way of the petitioner approaching the Civil Court for appropriate reliefs. sd/- S. SIRI JAGAN, JUDGE rhs // True copy // PA to Judge