Dismissed

K.S.Hydrose v. Kunnathunadu Grama Panchayat

Kerala HC16 Sept 2021WA/1181/2021

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a writ appeal challenging a notice directed to stop functioning of a sublet space as a lodge. The court held that accommodating staff in a commercially licensed building violates occupancy rules requiring a category change permit, validating the Panchayat's notice under the Public Health Act.

What did the court decide?

Writ appeal dismissed; notice to stop functioning of the lodge is held legal and valid.

K.S.Hydrose Vs Kunnathunadu Grama Panchayat — Landlord and Tenant | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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THURSDAY, THE 16^TH DAY OF SEPTEMBER 2021 / 25TH BHADRA, 1943

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WA NO. 1181 OF 2021

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AGAINST THE JUDGMENT IN WP(C) 16225/2021 OF HIGH COURT OF KERALA, ERNAKULAM

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APPELLANT:

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K.S.HYDROSE AGED 62 YEARS

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S/O.SYED MOHAMMED, KUMMATTU PUTHEMPURA HOUSE, PATTIMATTOM POST, ERNAKULAM DISTRICT, PIN-683 562

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BY ADV P.K.RAVI SANKAR

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RESPONDENTS:

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1 KUNNATHUNADU GRAMA PANCHAYAT,

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REPERESENTED BY ITS SECRETARY, KUMARAPURAM POST, ERNAKULAM DISTRICT, PIN-683 565

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2 SECRETARY, KUNNATHUNADU GRAMA PANCHAYAT, KUMARAPURAM POST, ERNAKULAM DISTRICT, PIN-683 565

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3 STATION HOUSE OFFICER, KUNNATHUNADU POLICE STATION, PATTIMATTOM POST, ERNAKULAM DISTRICT-683 562

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4 M.K.SASI, S/O. MANALVARIYIL VELAYUDHAM RESIDING AT 'BHAGYA', KAITHAKKAD KARA, PATTIMATTOM POST, ERNAKULAM DISTRICT,PIN-683 562

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5 M/S KITEX CHILDRENSWEAR LIMITED, MANAGER ADMINISTRATION, KIZHAKKAMBALAM, ERNAKULAM DISTRICT-683 562

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BY ADV DR.ABRAHAM P.MEACHINKARA, SC FOR R1 AND R2, SRI.TEK CHAND, SENIOR GOVERNMENT PLEADER FOR R3 SRI.SAJEEV KUMAR K. GOPAL FOR R4

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.A.No.1181 of 2021

JUDGMENT

Dated this the 16^th day of September, 2021

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SHAJI P.CHALY,J.

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Writ petitioner has filed the appeal, challenging the judgment of the learned single Judge dated 6.9.2021 in W.P.(C) No.16225 of 2021, wherein the appellant has sought to quash Exhibit P4 communication issued by the Secretary of Kunnathunad Grama Panchayat – the 2^nd respondent dated 9.8.2021, whereby the appellant was directed to stop the functioning of the lodge illegally conducted in the first floor of the building bearing door No.VII/1143-B, in accordance with the directions in the order dated 2.8.2021 in W.P.(C) No.15093/2021, apparently filed by the landlord against the writ petitioner herein. Landlord is the 4^th respondent in the writ petition and the instant appeal. The learned single Judge, after assimilating the facts and figures, held that the lodge conducted in the building in question is an illegal act and therefore, Exhibit P4 impugned notice issued by the Secretary of the Grama Panchayat was legal and valid. It is thus challenging the legality and correctness of the findings and directions, the appeal is filed.

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W.A.No.1181 of 2021

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Brief material facts for the disposal of the appeal are as follows; appellant took on rent ground floor and first floor of the building in question from the 4^th respondent landlord viz., M.K.Sasi, apparently for conducting the business of Supermarket as per a lease deed dated 8.4.2019 bearing registration No.2477 of 2019 of the Office of Sub Registrar, Puthencruz. The case projected by the appellant was that due to the present emergent situation of COVID -19 pandemic, the business of the appellant was substantially reduced and therefore, the supermarket business was compelled to be confined to the ground floor of the building. Thereupon, by virtue of the liberty granted to the appellant by the landlord to sublease the building, appellant sublet the building to the 5^th respondent viz., M/s.Kitex Childrenswear Limited, Kizhakkambalam, Ernakulam District on 24.1.2021. It was thereafter that Exhibit P4 was served on the appellant.

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The sum and substance of the contention advanced by the appellant is that appellant is not conducting any lodge in the first floor of the building though he has sublet the same to the 5^th respondent. It is also pointed out that the 5^th respondent is using the same for accommodating its staff. The paramount contention in the appeal is that the Secretary of the Grama Panchayat did not afford the appellant any opportunity of hearing before the impugned order was passed; that the learned single

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W.A.No.1181 of 2021

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Judge proceeded on a wrong assumption that a lodge was being conducted by the appellant in the first floor of the building, whereas this Court in W.P.(C) No.15093/2021 filed by the landlord only directed the Grama Panchayat and the Secretary to ensure that any business, which requires licence including the lodge is not conducted in the premises in question and therefore, the Secretary of the Grama Panchayat ought to have conducted a due enquiry before issuing the impugned order; and that apart it is contended that section 107 of the Travancore – Cochin Public Health Act, 1955, (hereinafter called, 'the Act, 1955) mandates registration of “lodging house” and “lodging house” is defined under section 2(22) of Act, 1955 to mean, “ a hotel, a boarding house, a choultry, a dharmasala or a rest house not maintained by the Government or a local authority, an unlicensed emigration depot or any place where, on payment, casual visitors are received and provided with sleeping accommodation with or without food but does not include a students' hostel under public or recognised control; or a house licensed under section 129 for accommodation of visitors to a fair or festival; or retiring rooms and rest houses provided by a railway administration and normally used by passengers or railway servants or both.

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Therefore, the sum and substance of the contention, relying upon the said provision is that the definition makes it clear that lodging house meant under the Act,

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W.A.No.1181 of 2021

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1955 is a place where casual visitors are received and provided with sleeping accommodation, however, the 5^th respondent is only accommodating its staff and the said arrangement would not make the premises a lodging house.

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In fact the Grama Panchayat and the Secretary have filed a counter affidavit

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in the writ petition basically contending that the building in question is a commercial building, which was licensed only to conduct hypermarket and the owner of the building has obtained the building permit and the building number for commercial occupancy only wherein a lodge cannot be conducted. According to the Secretary of the Grama Panchayat, Panchayat is empowered under section 107 of the Act, 1955 to register a lodging house and the section clearly specifies that no person shall keep a lodging house or receive a lodger, unless he is registered as the keeper thereof under the Act. The basic contention advanced by the Secretary of the Grama Panchayat is that petitioner has not secured any registration or licence for running lodge or allied purposes from the Panchayat.

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We have heard learned counsel for appellant Sri.V.K.Ravisankar, Dr.Abraham P. Meachinkara for the Grama Panchayat and the learned Senior Government Pleader Sri.Tek Chand for the State Official and perused the pleadings and materials on record.

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W.A.No.1181 of 2021

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Learned counsel for the appellant addressed arguments on the basis of the submissions discussed above. The paramount contention advanced is that the accommodation of staff of the 5^th respondent company cannot be treated as a lodging business going by section 2(22) of Act, 1955 since it only deals with casual visitors received in a building. We are unable to agree with the learned counsel for the appellant for the basic reason that appellant has carved out a portion of the definition in order to drive home the said point, whereas on a proper understanding of the definition of lodging house it is clear that it includes a hotel, a boarding house etc. which incidentally takes in a casual visitor also, and it is only misinterpreting the definition to the advantage of the appellant such a contention is advanced, which can never be sustained under law. Therefore, the contention so raised has no basis and foundation to arrive at any conclusion as argued by the learned counsel. Whatever that be the contention advanced by the Grama Panchayat in the writ petition is that the building in question is a commercial building, wherein only commercial activities as defined under the Kerala Panchayat Building Rules, 2019 can be carried on.

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The said contention has much force and probative value because as per rule 25 of the Kerala Panchayat Building Rules, 2019, (hereinafter called, “Rules, 2019”) dealing with occupancy of buildings, it is clearly specified that all buildings existing or hereinafter proposed shall be classified in one of the occupancies specified thereunder

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W.A.No.1181 of 2021

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according to the use or character of occupancy namely the following:

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Group A1 Residential Group A2 Lodging Houses & Special Residential Group B Educational Group C Medical/Hospital Group D Assembly Group E Office Group F Mercantile/Commercial Group G1 Industrial – I Group G2 Industrial – II Group H Storage Group I Hazardous Group J Multiplex Complex

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Therefore, it is clear that commercial building and a mercantile building is classified under Group F, whereas a residential building and lodging houses and special residential are grouped under A1 and A2 category. Group 1 is further defined under sub-rule (2)(a) of rule 25 of Rules, 2019 to mean the following:

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“25(2)(a):) Group A1 – Residential Building shall include any building in which sleeping accommodation is provided for normal residential purposes, with or without cooking and/or dining facilities. They shall include one or multifamily dwellings, apartment buildings or residential flats. Small professional offices, small household business or spaces for advocates,

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W.A.No.1181 of 2021

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doctors, engineers, architects, chartered accountants, beauticians, tailors, photographers, videographers, telephone booth operators, computer professionals, typists, electrical or electronic equipment service professionals, not exceeding 50 sq. metres built-up area and used as part of principal residential occupancy are also included in this group. Crèches, daycare centres, children’s nurseries, reading rooms, libraries and educational buildings not exceeding 200 sq. metres of built up area are also included in this group.”

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Similarly Group A2 is defined under clause (b) of sub-rule (2) of rule 25 of Rules, 2019, as follows:

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“ Group A2 - Lodging Houses & Special Residential shall include all lodging or rooming houses, seminaries/convents, orphanage, old age homes, dormitories, tourist homes, tourist resorts (or by whatever name called), hostels, hotels with or without conference halls, dining halls or assembly rooms.”

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On a proper analysis of the said provisions, it is clear that the buildings are classified in accordance with their occupancy and permits are granted in terms of the plans and application submitted accordingly by the owner of the land . Rule 4 of Rules, 2019 deals with the essentiality of permit. Sub-rule (3) thereto specifies that no person shall change the occupancy of an existing building from one group to another, without first obtaining the permit from the Secretary of the Grama Panchayat. This was exactly the point considered by the learned single Judge taking into account the

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W.A.No.1181 of 2021

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contention advanced by the Grama Panchayat. Even though the appellant has a contention that appellant had the liberty to sublet the building as per the agreement executed by and between the appellant and the landlord, if subletting is permitted, it can only be let out in accordance with the provisions of the Kerala Panchayat Raj Act, 1994 and the Kerala Panchayat Building Rules, 2019.

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The discussion made above would make it clear that it is in clear violation of

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the laws, accommodation is being provided to the staff of the 5^th respondent company, which is an admitted fact. The imperative expression “Shall” used in Section 4(3) of the Rules, 2019 makes it abundantly clear that without securing permission for category change, a building cannot be used for any occupation other than the occupancy for which permit was granted. Therefore, we have no hesitation to hold that the learned single Judge was right in holding that without securing a category change in contemplation of law, the appellant could not have conducted the lodging business. There is no case for the appellant that the category change was sought for by the appellant or the landlord. Yet another significant aspect generates in our mind is the question as to the maintainability of the writ petition, because the impugned order was passed by the secretary of the Grama Panchayat on the basis of an interim direction issued in an earlier writ petition, and if at all the appellant had any grievance it ought have been agitated in that writ petition itself.

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W.A.No.1181 of 2021

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In that view of the matter, we do not find any legal or factual error while exercising the discretion by the learned single Judge under Article 226 of the Constitution of India against the appellant, liable to be interfered with, in an intra court appeal filed under section 5 of the Kerala High Court Act, 1958.

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Needless to say, writ appeal fails, accordingly it is dismissed.

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Sd/- S. MANIKUMAR, CHIEF JUSTICE.

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Sd/- SHAJI P. CHALY,

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smv

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JUDGE.

K.S.Hydrose v. Kunnathunadu Grama Panchayat

Case brief

What is this about?

What did the court decide?

K.S.Hydrose v. Kunnathunadu Grama Panchayat

Case brief

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What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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