Dismissed

Fathima v. Palakkad Municipaltiy

Kerala HC2 Dec 2021WA/1549/2012

Case brief

AI extract

What is this about?

The justice dismissed a writ appeal challenging the judgment of the learned Single Judge. The court held that Section 492 of the Kerala Municipality Act, 1994 does not apply to licences issued under the Madras Public Health Act, 1939, and there was no jurisdictional error warranting interference.

What did the court decide?

Writ appeal failed and was dismissed; no order quashing the impugned notice or directing licence renewal.

Fathima Vs Palakkad Municipaltiy — Property and Title | Kerala HC (2021)

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W.A. No. 1549/2012

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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 2^ND DAY OF DECEMBER 2021 / 11TH AGRAHAYANA, 1943

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WA NO. 1549 OF 2012

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JUDGMENT DATED 25.06.2012 IN WPC 36291/2010 OF HIGH COURT OF KERALA APPELLANT/PETITIONER IN W.P.(C) NO. 36291/2010:

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FATHIMA

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W/O.ABOOBACKER, 11/267A, THACHOTH HOUSE, KALPAKA, TIRUR, MALAPPURAM - 676101.

BY ADVS.

P.G.SURESH

ASWATHY KRISHNAN

RESPONDENTS/RESPONDENTS IN W.P.(C) NO. 36291/2010:

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1 PALAKKAD MUNICIPALTIY

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REPRESENTED BY THE SECRETARY, PALAKKAD-678 001.

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2 THE SECRETARY PALAKKAD MUNICIPALITY PALAKKAD – 678 001.

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3 FATHIMA W/O.LATE AHAMMEDKUTTY HAJI THACHOTHU HOUSE, THEKKAN KUTHUR P.O., TIRUR, MALAPPURAM – 676 551.

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4 SHIHABUDEEN T.

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S/O.LATE AHAMMEDKUTTY HAJI, THACHOTHU HOUSE, THEKKAN KUTHUR P.O., TIRUR, MALAPPURAM – 676 551.

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5 ISMAIL, S/O.LATE AHAMMEDKUTTY HAJI THACHOTHU HOUSE, THEKKAN KUTHUR P.O., TIRUR, MALAPPURAM – 676 551.

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R1 & R2 BY ADV SHRI.BINOY VASUDEVAN, SC, PALAKKAD MUNICIPALITY

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W.A. No. 1549/2012

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R3& R5 BY SRI. T.C.SURESH MENON

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 02.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A. No. 1549/2012

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Dated this the 2^nd day of December, 2021.

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JUDGMENT

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SHAJI P. CHALY,J.

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The appeal is preferred by the petitioner in W.P.(C) No. 36291 of 2010 challenging the judgment of the learned single Judge dated 25.06.2012, whereby the following reliefs sought for by the writ petitioner were declined:

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Issue a writ of certiorari or other appropriate writ, direction or order quashing Ext.P8.

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Issue a writ of mandamus of appropriate wirt, order or direction directing the respondents to consider and pass orders on Ext.P4 application for renewal of licence without insisting on consent from legal heirs of Sri. Ahammedkutty Haji.

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Issue a declaration that the petitioner is entitled to a renewal of licence for running the Kalpaka Tourist Home as provided under Section 492(4) without the consent letter of any other person.

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To permit the petitioner to run the Kalpaka Tourist Home, pending disposal of the writ petition.

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Brief material facts for the disposal of the appeal are as follows:

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Appellant's husband one T. Aboobacker and his brother T. Ahammedkutty Haji purchased 52 cents of land in Survey Nos. 2679/A, 2777/D, 2774/2, 2778/2 and 2781/2 and 2782/2 in Palakkad District. Thereafter, the said persons have entered into Ext. P1 partnership deed along with 3 others to run a lodging business by name 'Kalpaka Tourist Home' in the land let out by the appellant's

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W.A. No. 1549/2012

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husband and his brother Ahammed Kutty Haji in Survey No. 2777/D. According to the petitioner, the said tourist home was run in the building jointly owned by the appellant's husband and Ahammedkutty Haji.

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The appellant's husband had registered himself as a keeper of Kalpaka Tourist Home under the Madras Public Health Act, 1939 and registration was being renewed from time to time. The appellant's husband died on 16.10.2009, and on the death of some of the partners of the other partners, the firm was reconstituted. For the year 2009-2010, registration was renewed in the name of the husband of the appellant and Ext. P3 receipt establishes the same. Thereafter, the appellant applied for renewal of the registration and along with the application, the appellant submitted an affidavit stating that the legal heirs of her husband ie., her children, have no objection in renewing the licence in the name of the appellant.

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On 24.05.2010, the appellant received a notice from the Secretary of the Palakkad Municipality, the second respondent, asking her to produce the consent of the title holders of building number 12/834, and the consent letter of legal heirs of late Aboobacker. According to the appellant, since the consent letter of her children along with renewal application was already submitted, no further action was taken on the same. Anyhow, as per Ext. P7 letter dated

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24.06.2010, the Municipality directed the appellant to produce the consent letter of the title holders of the building in which the tourist home was conducted and also the consent letter of legal heirs of late Aboobacker Haji.

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The case of the appellant is that after receipt of Ext. P4, she approached the Municipality and appraised that since her application is only for renewal of licence already existing in her husband's name, the consent of legal heirs of other co-owner namely Sri. Ahammedkutty Haji was not necessary. Later, apparently being dissatisfied with the undertaking on the part of the appellant, Ext. P8 notice dated 15.10.2010 was issued to the appellant directing her to close down the lodging house within 3 days on the ground that the consent letter of legal heirs of Ahammedkutty Haji has not been produced. It was, thus, challenging the legality and correctness of Ext. P8 notice dated 15.10.2010, the writ petition was filed.

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Evidently, Ahammedkutty Haji also died and even though he was not a party in the writ petition, his legal heirs namely respondent Nos. 3 to 5, were impleaded as per an order dated 08.02.2011 in I.A. No. 1056 of 2011. The legal heirs have filed a counter affidavit basically contending that the lodging house was started in the properties along with other partners in the year 1984 and since there were 4 partners, licence cannot be issued to the appellant and they are

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objecting to the relief sought for by the appellant.

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That apart, it was pointed out that in view of Section 492 of the Kerala Municipality Act, 1994 ('Act, 1994' for brevity), the appellant herself is not entitled to get the licence for running the lodging house renewed. It was also contended that the licence cannot be renewed without the consent of all the partners of the firm.

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The learned single Judge, after considering the objection raised by the party respondents, has dismissed the writ petition basically holding that since the license is issued under the Madras Public Health Act 1939 the provisions of Section 492(4) of the Act, 1994 would not apply. It was further held by the learned single Judge that the licence to run the lodging house was issued under the Madras Public Health Act, 1939 and since there is no provision similar to Section 492(4) of the Act, 1994, the appellant was not entitled to get the licence renewed without obtaining the consent of other interested persons. It is, thus, challenging the legality and correctness of the findings of the learned single Judge, the appeal is preferred.

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The appeal was pending before this Court from the year 2012 without securing any interim order. Even though the matter was referred for mediation as per an order dated 6^th September, 2012 a failure report was submitted by the Mediator. The sole question to be considered is whether any manner of interference is required to the

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judgment of the learned single Judge.

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It is true, as per Section 492(4) of Act, 1994, where the applicant seeking renewal of a licence or permission in respect of the trade or business licensed in the premises mentioned in sub-section (3) is a person different from the original licensee or not the legal heir of the original license, the consent of the owner shall be required. SubSection (3) of Section 492 specifies that where any person intending to obtain a licence or permission for the first time and where the applicant is a person other than the owner of the premises in question, he shall, along with the application produce the written consent of the owner of the premises and the period of the licence shall not exceed the period, if any, specified in the consent.

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The Municipality, after appreciating the provisions of Section 492 of Act, 1994, clearly held that the said provision would not come into play, since the licence in question was not granted under the Act, 1994, but under the provisions of the Madras Public Health Act, 1939. In our view, Section 492 of Act, 1994 deals with the grant of renewal of licence and the manner in which the application is to be considered when a situation arises by and between the landlord of a building and the tenant or any person claiming to be a tenant. It has got nothing to do with the licence to be granted to run a lodging house by a partnership firm consequent to the death of some of the partners.

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This is a case where the legal heirs of Ahammedkutty Haji, who was admittedly the partner of the appellant's husband, have objected to the licence being issued to the appellant and her children. It is clear from the counter affidavit filed that there is a clear factual dispute existing by and between the parties in regard to running of the partnership business, and merely because an application was submitted to secure the licence to run the lodging house without the juncture of other partners or their legal heirs, the Secretary of the Municipality is not expected to issue the licence in favour of the appellant, without any application of mind.

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Taking into account the above factual and legal aspects of the matter, we are of the clear and considered opinion that the appellant has not made out any case of jurisdictional error or other legal infirmities justifying us to interfere with the judgment of the learned single Judge in an intra court appeal filed under Section 5 of the Kerala High Court Act.

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

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sd/-

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S. MANIKUMAR, CHIEF JUSTICE.

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sd/-

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SHAJI P. CHALY, JUDGE.

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Fathima v. Palakkad Municipaltiy

Case brief

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Fathima v. Palakkad Municipaltiy

Case brief

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