SATHEESH M. Vs. SECRETARY, CHERTHALA MUNICIPAL COUNCIL

JUDGEMENT

(1.) Ext. P4 proceedings of the Secretary of the Cherthala Municipality cancelling licence given to the petitioner one Satheesh for conduct of a hotel by name 'Royal Sands' in premises having door No. 24/180B of Cherthala Municipality is under challenge in this Writ Petition wherein apart from prayer to quash Ext. P4, there is a further prayer to command the first respondent, the Secretary of the Municipality to renew the licence in favour of the petitioner for the remaining period of 2007-08 to conduct the restaurant in the above building. The petitioner is represented by his Power of Attorney Holder one Thomas Joseph and the building belongs to respondents 2 and 3. The landlords themselves were previously conducting the restaurant by name 'Vimala' restaurant in the premise and pursuant to Ext. P1 agreement between the landlords on the one part and the 4th respondent on the other, the petitioner was put in possession of the premises as well as various items of movables, furniture and fixtures detailed in the schedule to Ext. P1. The terms and conditions of the agreement, inter alia, are that the daily rent payable by the tenant shall be Rs.750/- and the petitioner claims that a total amount of Rs.7 lakhs was paid in two instalments as advance to respondents 2 and 3. Upon coming in possession of the property by virtue of Ext. P1, the name of the restaurant was changed as Royal Sand and the same was being conducted by the petitioner through his Power of Attorney Holder. While so, alleging that the tenant has violated the licence and that the licence fee from 01/02/2006 is in default, Ext. P2 lawyer notice dated 13/02/2006 was issued at the instance of the landlords demanding surrender of the vacant possession from the petitioner and the 4th respondent. To Ext. P2, Ext. P3 reply dated 30/03/2006 was sent contending that the lease is for a period of five years and that there is a stipulation that after the expiry of every 11 months the arrangement will be renewed. It was also contended that the jural relationship between the parties is not that of the licensor and licensee and that the arrangement is one of lease governed by the provisions of the Rent Control Law. The application submitted by the petitioner for renewal of licence to the Cherthala Municipality was rejected by the Municipality in terms of S.492(3) holding that consent has not been given by the landlords and Ext. P4 is the order of rejection. Ext. P5 series of rent receipts are relied on by the petitioner to show that rent has been promptly paid by him for the period from 01/02/2005 to 01/02/2006. The intention of the landlords, it is alleged, is to harass the petitioner and the landlords filed Ext. P6 suit before the Munsiff's Court, Cherthala seeking realisation of arrears of rent due from 01/02/2006. To that suit Ext. P7 written statement has been filed contending that the entire arrears of rent has been discharged. It is also pointed out that more than Rs.6 lakhs has been expended towards purchase of furniture, other implements, air conditioning maintenance etc. of the restaurant. The restaurant has been closed on account of Ext. P4 order of the Municipality which is branded as unreasonable and arbitrary. It is impugning Ext. P4 on various grounds that the Writ Petition has been filed by the petitioner seeking the reliefs already indicated.

(2.) The second respondent - landlord has filed a detailed counter affidavit contending that the Writ Petition is not maintainable since even on the admission of the petitioner, he has a statutory remedy of appeal to the Tribunal for Local Self Government Institutions against Ext. P4 order of rejection. It is alleged that the petitioner has withheld material facts from this Court and has given a distorted version of the facts which disentitles him to favourable exercise of discretion of this Court under Art.226 of the Constitution. It is alleged that the signatory to the Writ Petition is unauthorisedly in possession of the premises in question. The writ petitioner became constrained to abandon the business and flee from the locality. Taking advantage of that situation, the signatory to the Writ Petition, Thomas Joseph @ Reji assumed possession of the premises without referring to the landlords. The Power of Attorney, it is contended, is product of a rank forgery. The signatures of Mr. Satheesh figuring upon the Power of Attorney are not genuine. Even if it is assumed that the Power of Attorney is a genuine one, the Power of Attorney will not empower Mr. Reji to be put in possession of the premises so long as the landlords do not grant their consent for the same. Reji is indulging illegal activities in the tenanted premises. He and his men are consuming alcoholic drinks inside the premises and the landlords stand the risk of being impleaded as coaccused for offences under the Abkari Act. It is also pointed out that the rent is in arrears since March, 2006 and on account of the huge arrears caused by the tenants, the landlords was unable the dues payable to the KFC with whose financial assistance only the tenanted building was constructed. It is pointed out that the amounts payable to the KFC is Rs.7,15,000/-. It was in that context that the Writ Petition was filed by the landlords and this Court passed Ext. R2(a) judgment directing the Secretary of the Municipality to pass earlier orders on the representation submitted by the landlords. It was consequent to Ext. R2(a) that Ext. P4 impugned order was passed by the Secretary after conducting a hearing with notice to all affected parties. Mr. Reji who is the signatory to this Writ Petition is not entitled to avail any benefits out of Ext. P1. Reji has never been accepted by the landlords as the tenant. Reji is therefore not entitled to contend that he is entitled to continue in possession unless evicted by process of law.

(3.) To the above counter affidavit, a reply affidavit has been filed by the petitioner. Ext. P9 produced along with the reply affidavit is the Power of Attorney. It is stated that Ext. P2 lawyer notice was sent without any justification. The petitioner was prepared to pay the rent from 01/03/2006 but respondents 2 and 3 refused to receive payment and rushed to the Court filing suit for recovery of money. The reply affidavit reiterates the contention in the Writ Petition and denies those raised through the counter affidavit. It is pointed out that Ext. R2(a) judgment was delivered at the admission stage itself. No notice was received either by the writ petitioner or his Power of Attorney Holder from the Municipal Council pursuant to Ext. R2(a). The small delay in the matter of filing the Writ Petition was only because the petitioner was waiting for hearing from the respondents 2 and 3 regarding an amicable settlement of the matter. By way of abundant caution, the petitioner has filed Ext. P10 application for renewal of licence on 06/09/2007 and Ext. P11 is the receipt regarding the said application. Mr. Satheesh has utmost trust in the signatory to the Writ Petition who continues to enjoy the confidence of Mr. Satheesh. Mr. Satheesh is employed in U.A.E. with his wife and has not come home since November, 2006. Mr. Satheesh has no notice regarding Ext. R2(a) judgment. Mr. Reji took over the administration of the hotel only in May, 2006 and could continue the hotel only till 31/03/2007. The furniture and equipments for running the restaurant belonging to the petitioner are lying idle in the building and due to non functioning of the unit. They are getting rusted without any utility. The admitted arrears cover the period from 01/03/2006 to 31/03/2007 at the rate of Rs.750/- per day and this amount when compared to the advance amount of Rs.7 lakhs is a small amount. Closing down of the restaurant at the instance of respondents 2 and 3 causing heavy loss to the petitioner. Had it not been for Ext. P4 order the restaurant would have functioned properly, in which case the entire amount would have been paid regularly from the income derived from the business. The present stalemate is on account of the unreasonable and recalcitrant attitude of respondents 2 and 3.