Licence to shop should not be renewed if lease expired

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
              THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
  THURSDAY, THE 27TH DAY OF APRIL 2023 / 7TH VAISAKHA, 1945
                     WP(C) NO. 15240 OF 2022
PETITIONER:

          RAIHANATH, AGED 50 YEARS
          D/O.K.KUNJUMUHAMMED, PARAMMAL KALAMKUNNU HOUSE,
          CHUNGATHARA.P.O., MALAPPURAM DISTRICT, PIN - 679334
          BY ADVS.
          DINESH MATHEW J.MURICKEN,K.A.ABHILASH
          VINOD S. PILLAI,MOHAMMED THAYIB N.M.
          NAYANA VARGHESE,AHAMMAD SACHIN K.

RESPONDENTS:

    1     STATE OF KERALA REP. BY SECRETARY TO GOVERNMENT,
          LOCAL ADMINISTRATION DEPARTMENT, SECRETARIAT,
          THIRUVANANTHAPURAM - 695001
    2     EDAKKARA GRAMA PANCHAYATH,EDAKKARA.P.O.,
          MALAPPURAM DISTRICT,PIN - 679331
          REPRESENTED BY ITS SECRETARY,
    3     THE SECRETARY EDAKKARA GRAMA PANCHAYATH,
          EDAKKARA.P.O. , MALAPPURAM DISTRICT, PIN - 679331
    4     INDIAN OIL CORPORATION LTD
          DIVISIONAL OFFICE, KOZHIKODE, PMK TOWERS,
          CIVIL STATION.P.O., KOZHIKODE DISTRICT,
          REPRESENTED BY ITS DIVISIONAL MANAGER, PIN - 673020
    5     K.RABIYAKUTTY, W/O.LATE ALAVI KURIKKAL,
          KURIKKAL HOUSE, P.O.EDAKKARA, MALAPPURAM DISTRICT,
          MALAPPURAM DISTRICT, PIN - 679331
    6     M.P.ABDUL AZEEZ KURIKKAL
          S/O.M.P.ALAVI KURIKKAL, KURIKKAL HOUSE,
          P.O.EDAKKARA, MALAPPURAM DISTRICT,
          MALAPPURAM DISTRICT, PIN - 679331
    7     M.P.MOHAMMED SHEREEF KURIKKAL
          S/O.M.P.ALAVI KURIKKAL, KURIKKAL HOUSE,
          P.O.EDAKKARA, MALAPPURAM DISTRICT,
          MALAPPURAM DISTRICT, PIN - 679331
 WP(C) No.15240 of 2022             2


     8       M.P.ABDUL MANAF KURIKKAL
             S/O.M.P.ALAVI KURIKKAL, KURIKKAL HOUSE,
             P.O.EDAKKARA, MALAPPURAM DISTRICT,
             MALAPPURAM DISTRICT, PIN - 679331
     9       M.P.ABDUL RASHEED, S/O.M.P.ALAVI KURIKKAL,
             KURIKKAL HOUSE, P.O.EDAKKARA, MALAPPURAM DISTRICT,
             MALAPPURAM DISTRICT, PIN - 679331
    10       M.P.MOHAMMED SADIQUE KURIKKAL
             S/O.M.P.ALAVI KURIKKAL, KURIKKAL HOUSE,
             P.O.EDAKKARA, MALAPPURAM DISTRICT,
             MALAPPURAM DISTRICT, PIN - 679331
    11       M.P.HAFSATH, W/O.NEELENGADAN ABDUL HACKEEM,
             NEELENGADAN HOUSE, P.O.VANIYAMBALAM,
             MALAPPURAM DISTRICT, PIN-679339
 ADDL.R12 ABDUL HAKKEEM, AGED 58 YEARS,
          S/O M.P ALAVI KURIKKAL, KURIKKAL HOUSE,
          EDAKKARA P.O, MALAPPURAM
 ADDL.R13 FASSAL RAHMAN, AGED 37 YEARS,
          S/O M.P.ALAVI KURIKKAL, KURIKKAL HOUSE,
          EDAKKARA P.O, MALAPPURAM
 ADDL.R14 SABNA N, AGED 34 YEARS,
          D/O M.P ALAVI KURIKKAL, KURIKKAL HOUSE,
          EDAKKARA P.O, MALAPPURAM
             (ADDL.R12 TO R14 IMPLEADED AS PER ORDER DATED
             27.04.2023 ON IA NO.2 OF 2022)
             BY ADVS.
             R2 BY ADV.U.K.DEVIDAS
             M.P.PRABHAKARAN (PALAKKAD)
             SRI.MATHEWS J.NEDUMPARA, SC, IOC
             R5 TO R10 BY ADV.K.M SATHYANATHA MENON K.M
             R4 BY ADVS.M.GOPIKRISHNAN NAMBIAR
             K.JOHN MATHAI
             JOSON MANAVALAN
             KURYAN THOMAS
             PAULOSE C. ABRAHAM
             RAJA KANNAN

The fourth respondent is no more a statutory tenant of the respondents. Ext.P2 agreement has expired and the same is not renewed and these respondents along with the petitioner have clearly communicated their intent to get the property vacated. They rely on the judgment of the Apex Court in C. Albert Mooris v. K. Chandrasekaran and Others, (2016) 1 SCC 228 and the decision in W.P(C) No.3545 of 2017. Based on the above-said averments, the respondents sought for dismissal of the writ petition.

3. The question to be considered in this case is as to whether a direction could be issued to the third respondent to consider Ext.P11 application for renewal of licence without insisting upon a fresh lease deed or consent of the landlord. Heavy reliance is placed on the judgment of the Apex Court in Sudhakaran's case supra which held that consent of the landlord is not required for renewal of municipal licence to run a shop. In the present case, Ext.P2 lease deed is executed between the fourth respondent company and respondent Nos.5 to 11, which has already expired. The petitioner is running the petroleum outlet as a dealer of Indian Oil Corporation on the strength of Ext.P1 dealership agreement. Infact, the petitioner is not the tenant in Ext.P2 lease deed, and therefore, the principles in Sudhakaran's case supra will not strictly apply in the facts of the present case. Admittedly, the petitioner along with party respondents has issued Ext.R5(a) notice to the fourth respondent and also filed Ext.R5(b) writ petition seeking a direction to the fourth respondent to vacate the property. The third respondent has issued Ext.R5(c) notice directing the petitioner to produce documents relating to possession of land or else the petrol pump will be closed. All these aspects are suppressed while filing the writ petition. Respondents 5 to 10 rely on the judgment in C. Albert Mooris's case supra, the relevant portion of which reads as follows:

"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."

The said legal position has been followed by this court in W.P(C) No. 3545 of 2014, though in the case of suspension/cancellation of the explosive licence. In view of the above facts and circumstances and also taking into consideration the fact that there are suppression of material facts, I am of the opinion that the petitioner is not entitled for any of the reliefs sought for in this writ petition.