Kerala High Court
Rojan Thomas Malakhi vs Secretary on 10 July, 2020
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
FRIDAY, THE 10TH DAY OF JULY 2020 / 19TH ASHADHA, 1942
WP(C).No.13573 OF 2020(V)
PETITIONER/S:
1 ROJAN THOMAS MALAKHI
S/O.THOMAS P.MALAKHI, POONTHOTTATHIL VEEDU, KARIKOM
P.O., VETTIKAVALA, KOTTARAKKARA REP BY POWER OF
ATTORNEY HOLDER ROJI THOMAS MALAKHI, AGED 30 YEARS,
S/O.THOMAS P.MALAKHI, POONTHOTTATHIL VEEDU, KARIKOM
P.O., VETTIKAVALA, KOTTARAKKARA.
2 ROJI THOMAS MALAKHI
AGED 30 YEARS
S/O.THOMAS P.MALAKHI, POONTHOTTATHIL VEEDU, KARIKOM
P.O., VETTIKAVALA, KOTTARAKKARA.
BY ADVS.
SRI.I.DINESH MENON
SRI.L.RAJESH NARAYAN
RESPONDENT/S:
1 SECRETARY, VETTIKAVALA GRAMA PANCHAYATH
SABARIMALA BYPASS, VETTIKAVALA, KOLLAM - 691531.
2 SUGARAJ D.
AGED 49 YEARS
S/9O.DEVADASAN, K.L.D.LAND, THOTTAKYADU P.O.,
MULLARAMKODU MURI, OTTOOR VILLAGE, VARKALA - 691 531.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
10.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.13573 OF 2020(V) 2
ALEXANDER THOMAS, J.
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W.P.(C.) No. 13573 of 2020
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Dated this the 10th day of July, 2020
JUDGMENT
The case set up in the Writ Petition (Civil) is as follows :
That the petitioner is the absolute owner in possession of property comprising 14 ares comprised in Sy No. 21/1, Thandaper No. 14863, 14864 of Vettikavala Village wherein there is a building. He is paying basic tax with respect to the property and also effecting payment of building tax. Petitioners herein are the owners of the building bearing No.938 in Ward 2 of Vettikavala Grama Panchayath situated in the property owned by them, having 6000 Sq ft with attached structures therein. Alleging that the building was leased out to them by petitioner's late father on 16.2.2012 and that the petitioners, after their father's death were trying to forcibly oust them from the property, the 2nd respondent proceeded to file Ext.P1 OS No.254/2020 for injunction. It is to be taken into consideration that the late father of the petitioner's was 85% blind and as such could not have entered into any agreement as stated in the plaint. Therefore in no manner the late father of the petitioners could have executed any document conferring any right on the 2nd respondent. The 2nd respondent is clinging on to the property on the basis of a fake deed executed without the knowledge of the petitioners and obtained the same from their late father playing fraud. The 2nd page of the deed has WP(C).No.13573 OF 2020(V) 3 been fabricated and is fake. It is based on the same that the injunction has been obtained. Petitioners have therefore initiated steps for getting the injunction order vacated. Petitioners on coming to know about the fact that the 2nd respondent is in possession of the building based on a document allegedly executed by their late father who is 85% blind, and without there being any material to suggest that the same was with his knowledge, requested the 2nd respondent to vacate the premises. But the 2nd respondent without doing so has proceeded to file the suit and managed to obtain an order of injunction. Therefore pointing out the aforesaid facts and that the license has been obtained by fraud, petitioners have filed Ext.P10 request before the 1st respondent not to renew the license issued to the 2nd respondent. There is power conferred on the secretary to cancel the license already issued, if the same is found to have been obtained by fraud or misrepresentation. It is therefore necessary that appropriate direction is issued to the 1st respondent to consider and pass orders on Ext.P10 immediately failing which the petitioners will be put to serious prejudice and hardships.
2. It is in the light of these averments and contentions that the petitioners have filed the instant W.P.(C.) with the following prayers :
i. "issue a writ in the nature of mandamus or any other appropriate order or direction commanding the 1st respondent to forthwith consider and pass orders on Ext.P10;
ii. issue a writ in the nature of mandamus or any other appropriate order or direction commanding the 1st respondent to cancel and not to renew the license issued to the 2nd respondent since the same has been obtained by fraud and misrepresentation;
iii. Issue any such other writ, appropriate order or direction as this Hon'ble Court may deems fit and proper considering the facts and circumstances of the case."WP(C).No.13573 OF 2020(V) 4
3. Heard Sri.I.Dinesh Menon, learned counsel appearing for the petitioners. In the nature of the orders proposed to be passed in this petition, notices to respondents will stand dispensed with.
4. The case of the petitioners is that the 2 nd respondent has secured trade licence from the 1 st respondent-Secretary of the Vettikavala Grama Panchayat by producing a forged rent deed, as if the petitioners' father has executed a rent deed in favour of the 2 nd respondent and further that, the deceased father of the petitioners was suffering from more than 80% visual blindness as can be seen from Ext.P8 disability certificate and that therefore, it is highly impossible that the petitioners' deceased father would have voluntarily executed Ext.P9 rent deed as alleged by the 2 nd respondent. The main contention urged by the petitioners is that since the 2nd respondent has secured the licence from the 1st respondent to conduct the trade in the said building on the basis of fraud so committed, the grant of such licence is thus a nullity as it is vitiated by fraud and therefore, the 1 st respondent-Secretary has the power to consider the request made by the petitioners in Ext.P10 representation dated 27.6.2020 that the licence so issued to the 2nd respondent should be cancelled as it is vitiated by fraud etc.
5. Without getting into the merits of the controversy in any manner and without expressing any opinion on the merits of the issue, the following directions and orders are passed :
WP(C).No.13573 OF 2020(V) 5
1. The 1st respondent-Secretary of the Grama Panchayat will take up the matters raised by the petitioners in Ext.P10 representation dated 27.6.2020 and after affording reasonable opportunity of being heard to the 2nd respondent as well as the petitioners, through their authorized representative/counsel, if any and then should take a considered decision on the matters raised in Ext.P8 representation, in accordance with law, without much delay, preferably within a period of 6 weeks from the date of production of a certified copy of this judgment.
The petitioners will produce certified copy of this judgment along with the copy of the memorandum of this W.P.(C) with all the exhibits before the 1st respondent-Secretary of the Grama Panchayat for necessary information and further action. Registry will forward a certified copy of this judgment to contesting respondent No.2, at the cost of the petitioner.
With these observations and directions, the above Writ Petition (civil) will stand finally disposed of.
sd/-
ALEXANDER THOMAS, JUDGE SKS WP(C).No.13573 OF 2020(V) 6 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE BASIC TAX RECEIPT WITH RESPECT TO THANDAPER NO.14863 DATED 13/1/2020.
EXHIBIT P2 TRUE COPY OF THE BASIS TAX RECEIPT WITH RESPECT TO THANDAPER NO.14864 DATED 13/1/2020.
EXHIBIT P3 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 13/1/2020.
EXHIBIT P4 TRUE COPY OF THE OWNERSHIP CERTIFICATE DATED 29/1/2020.
EXHIBIT P5 TRUE COPY OF THE PLAINT IN OS NO.254/2020 DATED NIL.
EXHIBIT P6 TRUE COPY OF THE APPLICATION FOR INTERIM INJUNCTION DT. NIL.
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 23/6/2020. EXHIBIT P8 TRUE COPY OF THE STANDING DISABILITY CERTIFICATE DATED 2/7/2013.
EXHIBIT P9 TRUE COPY OF THE RENT AGREEMENT DATED 1/4/2013.
EXHIBIT P10 TRUE COPY OF THE REQUEST DATED 27/6/2020.