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Saju Thruthikunnel v/s The Excise Commissioner, Office of The Commissioner, Trivandrum & Others


    WP(C). No. 14806 of 2018

    Decided On, 16 July 2018

    At, High Court of Kerala

    By, THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

    For the Petitioner: Paul K. Varghese, Advocate. For the Respondents: R1 to R3, Mable C. Kurien, Government Pleader, R4, Biju .C. Abraham, Advocate.



Judgment Text

1. This writ petition is filed with the following prayrs:

'i. call for the records pleading to Exhibit P19 order and quash the same as far as it went against the petitioner by issuing a writ of mandamus or other appropriate writ, order or direction.

ii. issue a writ of mandamus or other appropriate writ order or direction commanding the 2nd and 3 rd respondents to renew the toddy vending licence of the petitioner and thereby permit the petitioner herein to conduct toddy shop No.28 of Parambathupadi in the building No.2/263A (new 9/255) of Thiruvaniyoor Grama Panchayat forthwith.

iii. declare that the petitioner is not liable to obtain consent letter from the 4th respondent for renewing toddy vending licence in the building No.2/263A (new 9/255) of Thiruvaniyoor Grama Panchayat.

iv. issue a writ of mandamus or other appropriate writ order or direction commanding the 1st and 2 nd respondents herein not insist the consent letter of the 4th respondent herein for continuing/renewing with the toddy shop business in the building No.2/263A (new 9/255) of Thiruvaniyoor Grama Panchayat.'

2. Heard learned counsel for the petitioner, learned Government Pleader and the learned counsel appearing for the contesting 4th respondent.

3. It is submitted that the petitioner had, by Exhibit P1 deed, taken 15 cents of land on licence to put up a toddy shop in it. It is stated that the petitioner has put up the building after getting all due permissions. The petitioner contends that the licence fee had been fixed at Rs.10,000/- and the licence was an irrevocable licence under Section 16 of the Easements Act. It is stated that the 4th respondent, who is a successor-in-interest of the original landlord, had required the petitioner to vacate the premises and the petitioner had obtained an order of injunction against eviction in O.S.No.62 of 2017 filed in the Munsiff's Court, Kolencherry. It is stated that the 4th respondent had approached the authorities under the Abkari Act and Exhibit P9 stop memo was issued. The petitioner had approached this Court filing W.P(C).No.3009 of 2018, which was disposed of along with W.P(C).No.853 of 2018 filed by the 4th respondent with a direction to the 2nd respondent to consider the issue with notice to all concerned. Exhibit P11 order cancelling licence was issued, which was taken in revision. The petitioner was permitted by the Commissioner to conduct the toddy shop upto 31.3.2018. Thereafter, the petitioner submitted an application for licence to run the toddy shop in question, but the same has been rejected by Exhibit P19 order, which is under challenge.

4. Exhibit P19 states that the property stands in the name of the 4th respondent and going by the records maintained in the Panchayat, the building in the property also stands in the name of the 4th respondent. It is therefore stated that the application for licence, which is submitted without consent of the 4th respondent, cannot be considered.

5. The contention of learned counsel for the petitioner is that the building in the property is one put up by the petitioner at his own expense and that in view of Exhibit P1 deed of licence, the respondents have absolutely no legal right to seek eviction of the petitioner from the premises. It is stated that since there was no tenant-landlord relationship between the parties, no consent of the 4th respondent is required for the purpose of conduct of toddy shop in the premises in question. It is further stated that there is no issue of renewal of the licence, since all the toddy shop licences which were in existence as on 31.3.2018, stand extended till 30.6.2018 and that the petitioner would be entitled to continue the toddy shop on the strength of the extension to be granted to him.

6. The learned counsel for the petitioner would rely on the decisions of this Court in Gopalan Nair v. Thevi Amma Thankamma and another [1969 KHC 298], Eldho v. Manual and others [2014(3) KHC 611], Suraj Prakash and others v. Union of India and others [1998 KHC 1936], Yahiya Ravuthar K.G v. State of Kerala and others [2017(1) KHC 160], Sudhakaran v. Corporation of Trivandrum and Another [2016(3) KHC 803] and Marimuthu v. Director General of Police [1999 KHC 652]. Section 60 of the Easements Act, 1882 is also relied upon.

7. Learned counsel for the 2nd respondent would point out that a reading of Exhibit P1 itself would show that it is a lease deed which is limited by time and cannot be construed as a licence deed under Section 60 of the Easements Act. It is stated that the contention that the petitioner had been continuously conducting the shop in the premises from 2002 onwards is absolutely incorrect and that the shop had been conducted only for a short time on the strength of Exhibit P1 which has a duration of only 11 months. It is stated that thereafter, Cooperative Societies comprising different workers had been conducting the shop for a considerable period of time. It is further stated that the 4th respondent had purchased the property by Exhibit R4(a) sale deed on 5.11.2005. It is stated that the allegation that an agreement had been entered into between the petitioner and the 4th respondent on 7.9.2005 and that a consent had been issued by the 4th respondent is absolutely incorrect and the same are forged documents. It is stated that the 4th respondent is indisputably the owner of the property in question and that the licence to conduct the toddy shop cannot be granted to the petitioner without the express consent of the landlord.

8. The learned Government Pleader would also contend that Exhibit P1 lease deed had a duration of only 11 months and no evidence of extension of the lease has been produced by the petitioner. It is stated that the petitioner had made a specific prayer for renewal of the licence which has been considered and rejected by Exhibit P19.

9. I have considered the contentions advanced. Rule 7(4) of the Kerala Abkari Shops Disposal Rules, 2002 specifically provides that the grantee of privilege, while applying for grant/renewal of the licence shall produce before the Deputy Commissioner of Excise concerned, the written consent/lease deed from the owners of land/building where a toddy shop is proposed to be licensed. From a reading of the provision, it is clear that where a toddy shop is proposed to be licensed in a particular premises, the written consent of the owner of the premises is required for any grant/renewal of licence.

10. The petitioner claims regarding continuous conduct of the shop from 2002 onwards is not borne out by the records and is strongly disputed by the party respondent as well as the department. The specific case of the 4th respondent is that the licence was later obtained by the petitioner on a misrepresentation that he had the consent of the 4th respondent. Admittedly, the 4th respondent was the owner of the property from the year 2005. The petitioner had contended before the authorities that he had the consent of the landlord while applying for licence. In the above view of the matter, I am of the

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opinion that the petitioner cannot rely on Exhibit P1 to contend that no consent is required. 11. In the instant case, it is beyond dispute that the property in which the shop is sought to be located belongs to the 4th respondent. Without the express consent in writing of the 4th respondent, the Deputy Commissioner could not have considered the petitioner's application for grant or renewal of licence as the case may be. In the above circumstances, since the application preferred by the petitioner has been rejected by Exhibit P19 communication on the ground of lack of consent, I am of the opinion that the said proceedings were perfectly legal and valid. The grounds raised against the same are without merits. The writ petition fails and is accordingly dismissed.
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