Allowed

Unnikrishnan v. Mavelikara Municipality

Kerala HC4 Feb 2021WP(C)/13465/2020

Case brief

AI extract

What is this about?

The High Court allowed the writ petition against the Municipality's notice to stop a workshop. The court set aside the order denying a licence, directing the Municipality to treat the leaseholder as the owner of the land and consider a fresh application without disrupting the petitioner's operations.

What did the court decide?

Ext.P8 order set aside; petitioner permitted to apply for licence within 15 days; activity not to be interdicted until orders on fresh application.

Unnikrishnan Vs Mavelikara Municipality — Property and Title | 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 MR. JUSTICE P.B.SURESH KUMAR

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THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942

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WP(C).No.13465 OF 2020(G)

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PETITIONER:

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UNNIKRISHNAN AGED 43 YEARS S/O.GOPALAKRISHNAN ACHARI, OORALISSERIL KIZHAKKATHIL VEEDU, KOTTARKKAVU, MAVELIKKARA P.O., ALAPPUZHA DISTRICT-690101.

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BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.P.J.JOE PAUL SRI.MANU SRINATH SRI.RAJAN G. GEORGE

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RESPONDENTS:

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1 MAVELIKARA MUNICIPALITY REPRESENTED BY SECRETARY, MAVELIKARA P.O., ALAPPUZHA DISTRICT-690101.

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2 SECRETARY, MAVELIKARA MUNICIPALITY, MAVELIKARA P.O., ALAPPUZHA DISTRICT-690101.

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3 DEEPA V.BABU, W/O.RATHEESH, LAKSHANAYIL, MANACADU MURI, MAVELIKKARA VILLAGE, ALAPPUZHA-690101.

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BY ADVS. SRI.VINCENT JOSEPH SRI.M.R.SUDHEENDRAN SRI.GAJENDRA SINGH RAJPUROHIT SRI.K.J.MANURAJ, GP

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-012021, THE COURT ON 04-02-2021 DELIVERED THE FOLLOWING:

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W.P.(C) No.13465 of 2020

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W.P.(C) No.13465 of 2020

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J U D G M E N T

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Petitioner entered into a lease arrangement with one Balarama Panicker in respect of a room located within the limits of the first respondent, the Mavelikara Municipality (Municipality) and thereupon, preferred an application on 17.12.2015 to the s econd respondent, the Secretary of the Municipality for licence to run a workshop in the said room in terms of the Kerala Municipality (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 2011. On the said application, Ext.P2 communication was issued to the petitioner by the second respondent stating that the Municipality is informed about the existence of the various litigations pertaining to the land in which the building is constructed; that

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W.P.(C) No.13465 of 2020

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legal opinion is, therefore, sought by the Municipality for consideration of the application for licence submitted by the petitioner and that the application will be considered as and when the legal opinion is received. It is stated by the petitioner that since orders have not been passed on the application for licence submitted by him within 30 days, he was deemed to be holding the licence sought for by him with effect from 17.01.2016 in terms of Sub-section (6) of Section 447 of the Kerala Municipalit y A ct, 1994 (t he Act) and that he was conducting the workshop from 17.01.2016 on that basis. The second respondent then issued Ext.P3 notice to the petitioner directing the petitioner to stop the workshop alleging that his conduct in running the workshop without obtaining licence is illegal. Ext.P3 notice has been challenged by the petitioner before this court in W.P.(C) No.19198 of 2016, and the petitioner has been running the workshop on the strength of the interim order passed in the said writ petition.

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W.P.(C) No.13465 of 2020

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The land in which the room occupied by the petitioner is situated is a land measuring 65 cents. The landlord of the petitioner Balarama Panicker obtained an order of assignment of the said land in terms of the provisions of the Kerala Service Inam Lands (Vesting and Enfranchisement) Act, 1981. The purchase certificate obtained by Balarama Panicker under the said enactment has been challenged by one Sekhara Panicker before this court in W.P.(C) No.8341 of 2005 on the ground that the purchase certificate has been obtained by Balarama Panicker based on his possession of the land; that possession of the land by Balarama Panicker was on behalf of his family 'Lakshana' and that therefore the purchase certificate would inure to the benefit of the members of the said family as well. T his court took the view that the said ground could be considered only in a properly instituted suit, and consequently disposed of the writ petition without unsettling the purchase certificate in favour of Balarama Panicker and

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W.P.(C) No.13465 of 2020

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making it clear that if it is established befo re the civil court that the possession of the land by Balarama Panicker was on behalf of his family, the purchase certificate will inure to the benefit of the family as well.

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3 . In the mean while, the Municipality issued a notice to Balarama Panicker directing demolition of an extension made by him to the building in existence in the land alleging that the same is unauthorised. The third respondent who is claiming some interest in the land, later filed W.P.(C) No.36812 of 2016 for implementation of the said direction issued by the Municipality. W.P.(C) No.19198 of 2016 and W.P. (C) No.36812 of 2016 were heard together and disposed of by Ext.P7 judgment directing the Municipality to take a final decision on the application for licence submitted by the petitioner. Since the notice issued by the Municipality to demolish the unauthorized extension was one issued as early as on 25.05.1990, this court directed the Municipality to take a

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W.P.(C) No.13465 of 2020

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decision as to whether the said extension needs to be demolished at all having regard to the passage of time. In Ext.P7 judgment, this court directed that till a final decision is taken by the Municipality as directed, the interim order in W.P. (C) No.19198 of 2016 will continue.

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Pursuant to Ext.P7 judgment, the second respondent passed Ext.P8 order holding that in the light of the various litigations pertaining to the land, it cannot be said that Balarama Panicker is the owner of the land, and licence cannot, therefore, be granted to the petitioner. The claim of the petitioner that he is holding deemed licence in respect of the premises has also been rejected in Ext.P8 order holding that even if it is accepted that the petitioner is enjoying a deemed licence, the term of the licence has been expired during January 2018. As regards the unauthorised construction, it is stated by the second respondent in Ext.P8 order that a decision in that regard will be taken by the Municipality. Later, Ext.P9 decision

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was taken by the Council of the Municipality holding that the unauthorised construction being one effected abou t 40 ye ars back, there is no need to demolish the same. Later, in the light of Ext.P8 order, the second respondent has called upon the petitioner to stop the workshop. Exts.P10, P11, P13 and P14 are the communications issued by the second respondent to the petitioner in this regard. Exts.P8, P10, P11, P13 and P14 are under challenge in the writ petition.

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The case set out by the petitioner in the writ petition, in essence, is that in the light of Ext.P6 judgment of this court, the finding of the second respondent in Ext.P8 order that Balarama Panicker is not the owner of the land is unsustainable and that in the absence of any decision by a competent civil court that the possession of the land by Balarama panicker on the strength of which he obtained purchase certificate was on behalf of his family, the Municipality ought to have accepted Balarama Panicker as the owner of the

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W.P.(C) No.13465 of 2020

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land and granted the licence applied for by the petitioner. As regards the deemed licence claimed by the petitioner, the case set out in the writ petition is that the deemed licence is valid till 17.01.2021 and at any rate, the petitioner is entitled to carry on the workshop till 17.01.2021.

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A counter affidavit has been filed by the

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Municipality reiterating the stand taken in Ext.P8 order.

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Heard the learned counsel for the parties on

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either side.

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It is seen from Ext.P6 judgment that Balarama

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Panicker has obtained assignment of 65 cents of land where the building occupied by the petitioner is situated, in terms of the Kerala Service Inam Lands(Vesting and Enfranchisement)Act, 1981. It is also seen that in terms of the said judgment, this court rejected the challenge against the purchase certificate issued to Balarama Panicker under the above Act and disposed of the writ petition observing that if it is established by persons

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claiming interest in the land that the possession of the land on the basis of which Balarama Panicker obtained assignment was on behalf of his family and not on his individual capacity, the purchase certificate will inure to the benefit of the family. There is nothing on record to indicate that anybody has established thereafter in any suit that the possession of the land by Balarama Panicer was not in his individual capacity, but on behalf of his family. In other words, in the light of Ext.P6 judgment, the second respondent ought to have held that Balarama Panicker is the owner of the land. If that be so, the finding in Ext.P8 order that the petitioner was not entitled to licence on the strength of the consent letter given by Balarama Panicker is unsustainable.

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It is unnecessary now to consider the contentions raised by the parties as regards the deemed licence claimed by the petitioner, for, even according to the petitioner, the deemed licence claimed by him is not valid after

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17.01.2021. T hough the petitioner has stated in paragraph 22 of the writ petition that he has preferred an application for fresh licence during May 2020, the Municipality does not seem to admit the same.

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In the circumstances, the writ petition is allowed. Ext.P8 order is set aside and the petitioner is permitted to prefer an application for licence within 15 days. If the petitioner prefers an application for licence as directed, the same shall be considered by the Municipality in accordance with law treating that Balarama Panicker is the owner of the land. Having regard to the fact that the petitioner is doing business in the premises right from January 2016, it is also directed that until orders are passed on the application for licence as aforesaid, his activity shall not be interdicted by the Municipality.

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Sd/P.B.SURESH KUMAR, JUDGE.

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W.P.(C) No.13465 of 2020

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 A TRUE COPY OF THE CASH/BANK STATEMENT OF THE 1ST RESPONDENT.

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EXHIBIT P2	A TRUE COPY OF	COMMUNICATION NO.H1-9604/15
	DATED 27.1.2016	ISSUED BY THE 2ND
	RESPONDENT.

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EXHIBIT P3	A TRUE COPY OF NOTICE NO.H1-9604/15 DATED
	21.5.2016 ISSUED BY THE 2ND RESPONDENT.

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EXHIBIT P4	A TRUE COPY OF JUDGMENT DATED 11.6.1996 IN
	A.S.NO.147/1992 BEFORE COURT OF THE
	ADDITIONAL DISTRICT JUDGE-I, MAVELIKKARA.

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EXHIBIT P5 A TRUE COPY OF ORDER DATED 1.10.1999 IN PROCEEDINGS NO.SMP 609/92 OF THE SETTLEMENT OFFICER (INAM LANDS), KOTTAYAM.

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EXHIBIT P6 A TRUE COPY OF JUDGMENT DATED 7.6.2016 IN W.P.(C) NO.8341/2005. EXHIBIT P7 A TRUE COPY OF JUDGMENT DATED 23.09.2019 IN W.P.(C) NO.19198/2016 AND W.P.(C) NO.36812/2016.

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EXHIBIT P8 A TRUE COPY OF ORDER NO.H1-7976/15 DATED 18.12.2019.

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EXHIBIT P9 A TRUE COPY OF COMMUNICATION H1-7976/19 DATED 11.2.2020 OF THE 1ST RESPONDENT.

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W.P.(C) No.13465 of 2020

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EXHIBIT P10 A TRUE COPY OF NOTICE NO.H1-4261/20 DATED 2.6.2020 ISSUED BY THE 2ND RESPONDENT.

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EXHIBIT P11 A TRUE COPY OF NOTICE NO.H1-4261/20 DATED 9.6.2020 ISSUED BY THE 2ND RESPONDENT.

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EXHIBIT P12 A TRUE COPY OF REPLY DATED 10.6.2020 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.

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EXHIBIT P13 A TRUE COPY OF ORDER NO.4261/20 DATED 19.6.2020 ISSUED BY THE 2ND RESPONDENT.

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EXHIBIT P14 A TRUE COPY OF ORDER NO.4261/20 DATED 22.6.2020 ISSUED BY THE 2ND RESPONDENT.

Unnikrishnan v. Mavelikara Municipality

Case brief

What is this about?

What did the court decide?

Unnikrishnan v. Mavelikara Municipality

Case brief

What is this about?

What did the court decide?

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