Kerala High Court
Siju C Abraham vs C.S.Alexander on 25 August, 2022
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
Thursday, the 25th day of August 2022 / 3rd Bhadra, 1944
WA NO. 1159 OF 2022
AGAINST JUDGMENT DATED 10.5.2022 IN WP(C) 16942/2021 OF THIS COURT
APPELLANTS/ADDL.RESPONDENTS 5 & 6:
1. SIJU C. ABRAHAM, AGED 48 ,S/O LATE C.J. ABRAHAM, CHERIAMADOM HOUSE,
THONNALLOOR MURI, PANDALAM VILLAGE, PANDALAM P.O., PATHANAMTHITTA
DISTRICT, PIN- 689501.
2. SAJINI CHERIAMADOM ABRAHAM, AGED 59 , D/O LATE C.J. ABRAHAM,
CHERIAMADOM HOUSE, THONNALLOOR MURI, PANDALAM VILLAGE, PANDALAM
P.O., PATHANAMTHITTA DISTRICT, PIN- 689501.
BY ADVS.M/S.R.T.PRADEEP, M.BINDUDAS & K.C.HARISH
RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 4:
1. M/S.C.S.ALEXANDER, REPRESENTED BY ITS MANAGING PARTNER, C.S.
ALEXANDER, CHIRAMMEL VEEDU, MUNDANKKAVU, CHENGANOOR, PATHANAMTHITTA,
PIN - 689121.
2. PANDALAM MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MC ROAD
JUNCTION, NEAR BUS STAND, PANDALAM, PATHANAMTHITTA, PIN -689501.
3. THE MUNICIPAL SECRETARY, PANDALAM MUNICIPALITY, MC ROAD JUNCTION,
NEAR BUS STAND, PANDALAM, PATHANAMTHITTA, PIN -689501.
4. THE MUNICIPAL HEAL INSPECTOR, PANDALAM MUNICIPALITY, MC ROAD
JUNCTION, NEAR BUS STAND, PANDALAM, PATHANAMTHITTA, PIN-689501.
5.HINDUSTAN PETROLEUM CORPORATION LIMITED,
REPRESENTED BY ITS CHIEF REGIONAL MANAGER,
REGIONAL OFFICE AT TATAPURAM, PB NO.161,
ERNAKULAM NORTH, COCHIN, PIN-682018.
P.T.O.
BY ADV.SRI.SHASHANK DEVAN FOR R1
ADV.SMT.T.S.MAYA (THIYADIL) FOR R2,3 & 4
STANDING COUNSEL SRI. M.GOPIKRISHNAN NAMBIAR
AND ADVS.M/S. JOHN MATHAI K., JOSON MANAVALAN,
KURYAN THOMAS, PAULOSE C. ABRAHAM & RAJA KANNAN FOR R5
Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum, the High Court be pleased
to stay the operation of Judgment dated 10.5.2022 in W.P.(C) No.16942/2021
by the learned Single Judge of this Hon'ble Court, pending disposal of
Writ Appeal.
This Writ Appeal coming on for admission on 25/08/2022 upon perusing
the appeal memorandum, the court on the same day passed the following:
P.T.O.
EXT.P3:A TRUE COPY OF THE APPLICATION SUBMITTED BY THE MANAGING
PARTNER
OF THE FIRM BEFORE THE 1ST RESPONDENT SEEKING FOR RENEWAL
OF D & O LICENSE WITH RESPECT TO THE SUBJECT MATTER OUTLET.
EXT.P4:A TRUE COPY OF THE ORDER/COMMUNICATION DATED 6.8.2021
ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.
EXT.P6:A TRUE COPY OF THE NOTICE OF CLOSURE/SEALING OF
THE SUBJECT MATTER RETAIL OUTLET ISSUED AND AFFIXED
AT THE SAID RETAIL OUTLET'S PREMISES BY THE HEALTH
INSPECTOR, GRADE I, PANDALAM MUNICIPALITY,
PATHANAMTHITTA DISTRICT.
---
S.Manikumar, C.J.
&
Shaji P.Chaly, J.
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W.A.No.1159 of 2022
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Dated this the 25th day of August, 2022
ORDER
S.Manikumar, C.J.
Before the writ court in W.P.(C)No.16942 of 2021, the petitioner therein has sought for the following reliefs:
"i. Call for records leading to the issuance of Exhibits P4 and P6 and thereby issue a writ of certiorari or such other order or direction quashing exhibits P4 and P6 as arbitrary, unreasonable and illegal;
ii. Issue a writ of mandamus or such other order or direction directing the 2nd respondent to efface/undo the sealing/non-operationalization effected over the subject matter retail outlet bearing Building No. 6/893, Panthalam Municipality situated at Sy. No. 318/4A, Re.Sy.No.189/19 in Thonnalloor Kara, Pandalam Village, Adoor Taluk, Pathanamthitta District, Kerala and thereby hand over management/operation of the same to the petitioner; iii. Issue a writ of mandamus or such other order or direction directing the 2nd respondent to reconsider exhibit P3 D&O license renewal application and thereby issue fresh D&O license with respect to the subject matter retail outlet."W.A.No.1159 of 2022 -:2:-
2. During the pendency of the writ petition, the owners of the building, where the petroleum outlet is functioning, have been impleaded.
3. Adverting to the rival submissions, writ court, while quashing Exhibits P4 and P6, issued the following directions:
"8. In the result, the writ petition is allowed. Exts.P4 and P6 are quashed. There will be a direction to respondents 1 and 2 to consider the application submitted by the petitioner for renewal of the D&O licence in accordance with law and to grant the same if the petitioner is otherwise entitled. The reason regarding consent from the landlord or the existence of tenancy or the assessment of the building in favour of the landlords shall not be reasons for rejecting the licence. It is made clear that this Court has not considered the correctness of the change of the assessment of the building in the name of the landlords and the observations made are only for the purpose of deciding the question of renewal of licence in the name of the petitioner. The above said question is left open to be decided in appropriate proceedings. The petitioner shall be allowed to cure any defect in the application for renewal, by putting them on notice regarding the same. Necessary orders shall be issued within one month from the date of receipt of a copy of this judgment. The interim order issued by this Court on W.A.No.1159 of 2022 -:3:- 13.8.2021 shall continue to be in force till the application is disposed of by respondents 1 and 2."
4. Being aggrieved by the said directions, owners of the building have filed the instant writ appeal inter alia on the following grounds:
A. The appellants being the landowners of the property are entitled to be heard by the municipality and considered their objections in the matter of renewal of D&O licence as the period of lease had already been expired. The denial of an opportunity of hearing of appellants and considering their objections by the municipality in the matter of renewal of D&O licence is arbitrary, capricious, perverse and unreasonable infringing the fundamental rights under Article 14 and 300A of the Constitution of India.
B. The position is no longer resintegra that a dealer of petroleum products had the right which he had acquired in terms of the lease. When that lease expired and when the landlord declined to renew the same and also called upon the erstwhile tenant to surrender possession the erstwhile lessee could no longer assert that he had any right to the site. He continued occupation of something which he had no right to occupy cannot be regarded as source of her right to the land of which he himself was in lawful possession. The Apex Court W.A.No.1159 of 2022 -:4:- considered the issue in C. Albert Morris Vs K. Chandrasekharan 2006 (1) SCC 228 as to the right of the retailer to get statutory clearances after the expiry of the lease and the landlord sought to surrender the possession of leasehold premises to the original tenant in the context of right to the site contemplated under Rule 153(1)(i) of the Petroleum Rules and held that the retailer is not entitled for statutory clearances after the expiry of the lease and the landlord sought to surrender possession by the tenant.
C. The non-consideration of the ratio laid down by the Apex Court in Albert Morris case in the impugned Judgment is per-se illegal and improper.
D. The factual matrix in Albert Morris case apply in all four to the case in hand. In that case the retailer of petroleum products of Hindustan Petroleum Corporation Ltd. was running the outlet on a site obtained on lease. The lease was only a vacant site to put up a petrol bunk with accessory constructions thereon. The suit for rejectment filed by the landlord has been dismissed for non-prosecution and restoration of suit was pending. The landlord sought for a writ of mandamus to decline renewal of licence and the same was allowed. E. The assessment of the property in the municipal records can only be in the name of owner of the property and not in the name of the lessee. Therefore change of assessment of property in the name of landlord when the municipal W.A.No.1159 of 2022 -:5:- authorities on being convinced that the assessment wrongly stood in the name of the lessee is beyond challenge. The corporation has not yet moved to change the assessment of the property in their name. Hence there is material illegality and irregularity in frowning upon the change of ownership in the name of titleholders of property.
5. That apart, reliance is also placed on the decision of the Hon'ble Supreme Court in C. Albert Morris v. K. Chandrasekaran and Others reported in (2006) 1 SCC 228, wherein at paragraph No.43, the Hon'ble Supreme Court held thus:
"43. In our opinion, any right which the dealer has over his site was the right which he had acquired in terms of the lease. When that lease expired and when the landlord declined to renew the same and also called upon the erstwhile tenant to surrender possession, the erstwhile lessee could no longer assert that he had any right to the site. His continued occupation of something which he had no right to occupy cannot be regarded as source of a right to the land of which he himself was not in lawful possession. As observed by this Court in the case of M.C. Chockalingam & Ors. Vs. V. Manickavasagam & Ors. (supra), litigious possession cannot be regarded as lawful W.A.No.1159 of 2022 -:6:- possession. As rightly pointed out by the Division Bench of the High Court the right referred to in this Rule has necessarily to be regarded as right which is in accordance with law and the right to the site must be one which is capable of being regarded as lawful. We have already referred to Bhawanji Lakhamshi & Ors. Vs. Himatlal Jamnadas Dani & Ors. (supra) wherein this Court held that the act of holding over after the expiration of the term does not create a tenancy of any kind. A new tenancy is created only when the landlord assents to the continuance of the erstwhile tenant or the landlord agrees to accept rent for the continued possession of the land by the erstwhile tenant. The contention of Mr. L.N. Rao that the landlord's assent should be inferred from the conduct of the landlord who had filed the suit for ejectment, but did not pursue the same, has no force. This suit was withdrawn with liberty to file a fresh suit on the same cause of action, liberty which the Court has granted. The possession of this site by the erstwhile lessee does not ripen into a lawful possession merely because the landlord did not proceed with the suit for ejectment at that time, but reserved the right to bring such a suit at a later point of time. That cannot amount to an assent on his part to the continued occupation of the landlord under cover of a right asserted by the erstwhile lessee. The words "right to the site" in Rule 153(1) (i) must, therefore, in our opinion, be given their full meaning and the effect that unless the person seeking a W.A.No.1159 of 2022 -:7:- licence is in a position to establish a right to the site, he would not be entitled to hold or have his licence renewed. We have already rejected the contention of Mr. L.N. Rao that the appellant-tenant is a statutory tenant for the reasons recorded earlier. The lease deed is very clear as to what was leased. The lease was of vacant land. That is evident from the recitals in the plaint, legal notice, lease deed etc. It is, therefore, not in dispute that the lease of land is not covered by the statute, the Pondicherry Buildings (Lease and Rent Control) Act, 1969 in force extending protection to tenants. "
6. Apart from the above, submission has also been made that in the suit, O.S.No.310 of 2015, filed before the learned Munsiff Court, Adoor, a decree has also been obtained for recovery of possession of the plaint schedule property.
7. We have heard Mr.R.T.Pradeep, learned counsel for the appellants/owners and perused the material on record.
8. It can be seen from the material on record that the petroleum outlet has been functioning in the subject property from 1960 onwards. If the renewal application is not considered as directed, then it would amount to the closure of W.A.No.1159 of 2022 -:8:- the petroleum outlet itself. In other words, if stay of the directions is granted, then it would amount to allowing the writ appeal at the time of admission itself. Considering the above said aspect and issues raised in the writ appeal, we are of the view that the matter requires adjudication.
9. Hence, writ appeal is admitted. Sri.Shashank Devan, learned counsel takes notice for respondent No.1. Smt.T.S. Maya (Thiyadil), learned counsel takes notice for Pandalam Municipality (respondents 2, 3 and 4). Sri.M. Gopikrishnan Nambiar, learned standing counsel takes notice for Hindustan Petroleum Corporation Ltd. (respondent No.5).
We are not inclined to grant interim stay of the operation of the directions. However, implementation of the directions would be subject to the result of the appeal.
Sd/-
S.Manikumar Chief Justice Sd/-
Shaji P.Chaly Judge vpv 25-08-2022 /True Copy/ Assistant Registrar