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Sasankan P vs. Kayamkulam Municipality

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WP(C)/16372/2020HC KeralaGSTCNR KLHC01041387202024 August 2020Bench: HONOURABLE MR. JUSTICE ALEXANDER THOMAS6 pages

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS MONDAY, THE 24TH DAY OF AUGUST 2020 / 2ND BHADRA, 1942 WP(C).No.16372 OF 2020(V) PETITIONER: SASANKAN P AGED 58 YEARS S/O.PURUSHOTHAMAN, PUTHANPURAPADEETTATHIL, OLAKKETTIYAMBALAM P.O, MAVELIKKARA THALUK - 690 510 BY ADVS. SRI.RINNY STEPHEN CHAMAPARAMPIL SMT.ASHA ELIZABETH MATHEW RESPONDENTS: 1 KAYAMKULAM MUNICIPALITY REPRESENTED BY ITS SECRETARY, MUNICIPALITY OFFICE, KAYAMKULAM - 690 502 2 THE SECRETARY, KAYAMKULAM MUNICIPALITY, MUNICIPALITY OFFICE, KAYAMKULAM - 690 502 3 THE HEALTH SUPERVISOR KAYAMKULAM MUNICIPALITY, MUNICIPALITY OFFICE, KAYAMKULAM - 690 502. 4 RAMACHANDRAN NAIR.K ANADIYIL VAISAKH, MANGUZHI SOUTH, BHARANIKKAVU, MAVELIKKARA THALUK-690 503. SRI.T.R.RAJAN,SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P(C) No.16372 of 2020 2 ALEXANDER THOMAS, J. ============================= W.P(C) No.16372 of 2020 ============================= Dated this the 24th day of August, 2020 JUDGMENT The case set up in the above Writ Petition (Civil) is as follows : That the Petitioner, is constrained to approach this Hon'ble Court to get the right accrued in his favour for Deemed Licence, declared on the basis of his application for D&O License submitted on 01/06/2020 under Rule 5(1) of the Kerala Municipality (Grant of License to Dangerous and Offensive Trades and Other Trades and Factories) Rules, 2011. In 2002, the Petitioner commenced the operation of 'Rainbow Marbles' a small scale Tiles, Granite and Marble shop within the juri iction of the 1st respondent in Building No.XXXII/726. The 1st respondent Municipality issued license for conducting the said shop, which is being renewed every year. For stocking Tiles, Granite and Marble, Petitioner had taken on lease 60 cents of land from the 4th respondent, comprised in Survey No.193/20 of Krishnapuram Village and was lastly renewed in 2017 vide Ext.P4 Lease Deed. The Petitioner was under a bonafide belief that no separate License is required for stocking the said materials in the leased premises and that license for 'Rainbow Marbles' would suffice for the stocking purpose as well. During May 2018, the 4th respondent made attempts to forcibly evict the Petitioner from the leased premises. Hence, the Petitioner filed O.S No.153/2018 for Prohibitory Injunction against forcible eviction in which Ext.P5 Temporary Order of Injunction was passed against forcible eviction of the Petitioner from the leased premises, which is still in force. On the insistence from the part of the 4th Respondent, Respondents 1 to 3 initiated steps to prevent the Petitioner from using the leased premises for stocking he said materials on a premise that a separate licence is required of that

W.P(C) No.16372 of 2020 3 purpose. During th 1st week of June, the 3rd respondent locked that gate of the leased premises while the Petitioner was recuperating form the injuries sustained in a Road Traffic Accident. As a result of locking down the leased premises, the functioning of 'Rainbow Marbles' is crippled as he is not able to supply the materials ordered by the customers from the leased premises where it is stoked. Hence, on 01/07/2020, the Petitioner submitted Ext.P6 Application for D&O License. Within 30 days as mandated under Rule 6 (4) of the D & O License Rules, no decision had been communicated on Ext.P6 application. Therefore, on expiry of 30 days i.e. on 30/37/2020, a license is deemed to have been issued to the Petitioner for the period specified in the application as stipulated under Rule 6(7) of the D & O License Rules.

2.

The main contentions urged by the petitioner are as follows : 1. “Within 30 days as mandated under Rule 6 (4) of the D & O License Rules, no decision had been communicated on Ext.P6 application submitted on 01/07/2020. Therefore, on expiry of 30 days i.e., on 30/07/2020, a license is deemed to have been issued to the Petitioner for the period specified in the application as stipulated under Rule 6(7) of the D & O License Rules.

2.

In view of the Deemed License, the Petitioner is entitled to use the leased premises for stocking the Tiles, Marbles and Granites. Respondents 1 to 3 have no manner of right to cause any obstruction to the Petitioner from making use of the leased premises.

3.

The Petitioner is a statutory lessee. He is entitled for license for carrying out any lawful activity in the leased premises till he is evicted there from in accordance with law.

4.

No consent is required from the lessor for licence as the Petitioner is a statutory lessee and his continuance in the leased premises is protected by a Judicial Order.” It is in the light of these averments and contentions, that the petitioner has filed the instant Writ Petition (Civil) with the following

W.P(C) No.16372 of 2020 4 prayers : i) “Issue an appropriate Writ, Order or Direction declaring that a Deemed license has been accrued in favour of the Petitioner as contemplated under Rule 6 (7) of the Kerala Municipality (Grant of License to Dangerous and Offensive Trades and other Trades and Factories) Rules, 2011 on the basis of Exhibit P6 application under Rule 5(1) of the above Rules to stock Granite, Marble and Tiles in 60 cents of land comprised in Survey No.193/20 of Krishnanpuram Village and that respondents have no manner of right to obstruct the Petitioner from carrying out the above activity in the said property covered by Exhibit P4 Lease Deed. ii) Issue a Writ of Mandamus or any other appropriate Writ, Order or Direction commanding respondents 1 to 3 not to cause any obstruction to the Petitioner in stocking Tiles, Granite and Marble in 60 cents of land comprised in Survey No.193/20 of Krishnanpuram Village on the basis of the Deemed License accrued in favour of the Petitioner. iii) Pass such other appropriate Writs, Orders or Directions as this Hon’ble Court may deem just and proper to issue in the circumstances of the case.”

3.

Heard Sri.Rinny Stephen Chamaparampil, learned counsel appearing for the petitioner and Sri.T.R.Rajan, learned Standing Counsel for Kayamkulam Municipality appearing for respondent Nos.1 to 3. In the nature of the orders proposed to be passed in this Writ Petition, notice to contesting respondent No.4 will stand dispensed with.

4.

Sri.T.R.Rajan, learned Standing Counsel for Kayamkulam Municipality appearing for respondent Nos.1 to 3 would submit on the basis of instructions that the 2nd respondent-Kayamkulam Municipal Secretary has already passed order dated 03.08.2020 rejecting the request of the petitioner contained in Ext.P-6 application for issuance of trade/D&O license and that reasons are also stated in the said rejection

W.P(C) No.16372 of 2020 5 order and that the 2nd respondent had tried to serve the said rejection order on the petitioner, which he evaded and therefore, it was duly served on the petitioner by affixture in his premises and it was also sent by registered post and the petitioner has not so far challenged the said rejection order, in the manner known to law. The learned counsel for the petitioner submits that the petitioner has not so far received the said rejection order.

5.

This Court need not get into any of those issues. However, it is directed that Sri.T.R.Rajan, Standing Counsel appearing for Kayamkulam Municipality appearing for respondent Nos.1 to 3 shall serve copy of the said rejection order dated 03.08.2020 issued by the 2nd respondent to Sri.Rinny Stephen Chamaparampil, learned counsel appearing for the petitioner, forthwith, today itself. All issues are left open and liberty is accorded to the petitioner to challenge the said order dated 03.08.2020, in the manner known to law. With the said liberty, the above Writ Petition (Civil) will stand disposed of. ALEXANDER THOMAS JUDGE vgd

W.P(C) No.16372 of 2020 6 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 AOF THE LICENCE DATED 2.6.2018 ISSUED BY THE IST RESPONDENT. EXHIBIT P2 AOF THE RECEIPT DATED 6.3.2020 ISSUED BY THE IST RESPONDENT. EXHIBIT P3 AOF THE GST REGISTRATION CERTIFICATE DATED 17.7.2018. EXHIBIT P4 AOF THE LEASE DEED DATED 20.1.2017 EXECUTED BETWEEN THE PETITIONER AND THE 4TH RESPONDENT. EXHIBIT P5 AOF THE ORDER OF TEMPORARY INJUNCTION DATED 3.4.2018 OF THE MUNSIFF'S COURT, KAYAMKULAM IN I.A.NO.761/2018 IN O.S.NO.153/2018. EXHIBIT P6 AOF THE APPLICATION IN FORM NO.1 SUBMITTED BY THE PETITIONER FOR D&O LICENSE BEFORE THE IST RESPONDENT ON 1.7.2020. EXHIBIT P7 AOF THE ACKNOWLEDGMENT RECEIPT DATED 1.7.2020 ISSUED BY THE IST RESPONDENT ACKNOWLEDGMENT

RECEIPT

OF EXT.P4 APPLICATION. EXHIBIT P8 AOF THE DETAILED APPLICATION FOR LICENSE SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT ON 1.7.2020.

Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.