IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 18TH SEPTEMBER 2008 / 27TH BHADRA 1930 WP(C).No. 21724 of 2008(J) ------------------------------------ PETITIONER: -------------------- 1. KUNJI PATHU, W/O. KUNHAMMADKUTTY MUSALIYAR, THACHARAKANDIYIL, VILLIAPPALLY PO VADAKARA. 2. ANDRU,S/O. LATE KUNHAMMADKUTTY MUSALIYAR,EDAVANA HOUSE, CHEMMARATHOOR P.O. VADAKARA 4, KOZHIKODE. 3. KUNHAYISHA, W/O.LATE T.K.KUNHAMMAD THAZHE KOROTH HOUSE, CHEMMARATHOOR P.O. VADAKARA 4, KOZHIKODE. 4. ABDUL SAMAD,S/O.LATE E. KUNHABDULLA KIZHAKKAYIL HOUSE, CHEMMARATHOOR P.O. VADAKARA 4, KOZHIKODE. 5. SEENATH,D/O. LATE E. KUNHABDULLA KIZHAKKAYIL HOUSE, CHEMMARATHOOR P.O. VADAKARA 4, KOZHIKODE. 6. UMMU HABEEBA,D/O.LATE E. KUNHABDULLA KIZHAKKAYIL HOUSE, CHEMMARATHOOR P.O. VADAKARA 4, KOZHIKODE. BY ADV. SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU RESPONDENTS: ----------------------- 1. M.K.FATHIMA, W/O. KUNNOTH FAIZAL KUNNOTH HOUSE, VILLIAPALLY P.O.,VADAKARA 2. THE KOZHIKODE CORPORATION REPRESENTED BY ITS SECRETARY 3. THE HEALTH OFFICER CORPORATION OF KOZHIKODE BY ADV. SRI.P.V.KUNHIKRISHNAN,SC,KOZHIKODE CORP FOR R2 & 3 SRI.S.MOHAMMED AL RAFI FOR R1 SRI.K.D.BABU,SC,KOZHIKODE CORPORATION FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 21724 of 2008(J) APPENDIX PETITIONERS' EXHIBITS: EXT.P1 - PHOTOCOPY OF THE PARTITION DEED NO.141/2006 DATED 04.02.2006. EXT.P2 - PHOTOCOPY OF THE APPLICATION DATED 18.11.2005. EXT.P3 - PHOTOCOPY OF THE DETAILED OBJECTION FILED BY THE FIRST PETITIONER. EXT.P4 - PHOTOCOPY OF THE ORDER DATED 21.02.2008. EXT.P5 - PHOTOCOPY OF THE REVISION PETITION DATED 26.02.2008. EXT.P6 - PHOTOCOPY OF THE STATEMENT IN R.P. 14/2008 DATED APRIL 2008. EXT.P7 - PHOTOCOPY OF THE OBJECTIONS FILED BY OTHER PETITIONERS. EXT.P8 - PHOTOCOPY OF THE ORDER DATED 05.07.2008. EXT.P9 - PHOTOCOPY OF THE APPLICATION FOR LODGING LICENCE FILED BY THE PETITIONERS. RESPONDENTS' EXHIBITS: EXT.R1(a) - TRUE COPY OF THE LICENCE AGREEMENT DATED 27.8.2001 EXECUTED BY LATE A.MOIDU IN 1ST RESPONDENT'S FAVOUR. /TRUE COPY/ PA TO JUDGE rhs S.SIRI JAGAN, J ================== W.P(C)No.21724 of 2008 ================== Dated this the 18th day of September, 2008. J U D G M E N T The petitioners' claim to be the successors-in-interest of certain properties in which a tourist home by name “Paradise Tourist Home” is situated, which is at Kozhikode. The same originally belonged to one Mr. A.Moidu. He had a licence to run that tourist home. He died on 18.10.2005. According to the petitioners, the petitioners' together with the 1st respondent are the legal heirs of the late A. Moidu. Therefore according to them without consent of the petitioners also, the 1st respondent cannot on his own get renewal of the licence for the tourist home in his exclusive name. The petitioners therefore seek the following reliefs: “i. To issue a writ of certiorari or any other appropriate writ order or direction calling for the records leading to Ext.P8 and quash Ext.P8. ii. To issue a writ of mandamus or any other appropriate writ order or direction commanding the second respondent to give adequate opportunity to the petitioners to present their grievance and to consider the same as well before passing any orders pursuant to Ext.P8.” 2. The 1st respondent has filed a counter affidavit, in which W.P(C)No.21724 of 2008 - 2 - she disputes the entitlement of petitioners 2 to 6 for shares in the property as legal heirs of late Sri. A. Moidu. According to her, petitioners 2 to 6 are only residuaries who can stake claim for shares in the property only if there are no other legal heirs having better claims for that property. According to her since herself and the first petitioners have better claims for succession, as residuaries petitioners 2 to 6 cannot claim any right in the property by way. But at the same time the 1st respondent admits that the 1st petitioner is a legal heir entitled to 1/6 th share in the property. The counsel for the 1st respondent submits that despite the fact that the 1st petitioner is entitled to share in the property, that cannot prevent the 1st respondent from getting the licence in respect of the Tourist Home issued by the 2nd respondent, Corporation renewed in the sole name of the 1st respondent. For such contention the 1st respondent relies on Section 492(4) of the Kerala Municipalities Act, as also the decision of this Court in Marimuthu v. Director General of Police [1999 (3) KLT 662]. Therefore the 1st respondent would seek dismissal of the writ petition. 2. I have considered the rival contentions in detail. W.P(C)No.21724 of 2008 - 3 - As I have noted earlier the 1st respondent categorically admits that the 1st petitioner has 1/6 th share in the property. Therefore, going by Law of Succession in respect of Mohammadens, the 1st respondent cannot enjoy the property to the complete exclusion of the 1st petitioner. That being so, the license in respect of tourist home issued by the 2nd respondent cannot be renewed in the sole name of the 1st respondent, without consent of the 1st petitioner. The licence can be renewed only in the joint names of both the 1st respondent and the 1st petitioner, unless the 1st petitioner agrees to issue of licence in the sole name of the petitioner. Accordingly, this writ petition is disposed of with a direction to the 2nd respondent to see that licence is issued only in accordance with the above findings. In so far as the other petitioners are concerned their remedy lies in getting their rights over the properties established through a civil suit and then approach the 2nd respondent for appropriate reliefs. S.SIRI JAGAN, JUDGE rhs