Jose C.Mathew vs State Of Kerala

T.R. Ravi, J

The 2nd respondent had constructed a building in 1972 at a time when Thodupuzha was a Panchayat. The petitioner’s father had been allotted shop room Nos.VII/2, 3 and 4 in the building and he started conducting a hotel in partnership with another person. The partnership was dissolved in 1992. Thereafter, the petitioner’s father was occupying the rooms in his individual capacity after executing an agreement with the 2nd respondent who is the successor-in-interest of Thodupuzha Panchayat. According to the petitioner, the rooms bearing Nos.2 and 4 together with a kitchen area covered with sheet and a staircase area having access to the water tank, was being used for conducting the hotel business and the room with door No.3 was being used for conducting garment business. It is stated that the license fee was being paid for the entire area inclusive of the kitchen area and staircase and the monthly license fee fixed by the 2nd respondent was to be increased on an annual basis by 5%.

The 2nd respondent proposed to construct a Municipal Town Hall. For the purpose of the construction, a portion of the kitchen area in the possession of the petitioner’s father needed to be demolished. The petitioner’s father agreed to demolish the entire kitchen portion and requested that he may be permitted to put up a modified kitchen in an area of 13 x 3.8 M2 and improve the rooms using his own funds and, to put up a temporary structure to be used as a kitchen, while the regular kitchen was being constructed. On 26.1.2001, the 3rd respondent decided to permit the demolition of the kitchen area and the construction of another kitchen in 13 x 3.8 M2 adjoining the hotel on the southern side. It was also decided that for two months, the petitioner’s father can be permitted to put up a temporary shed for use as a kitchen. Ext.P1 is the true copy of the decision taken by the 3rd respondent.

The petitioner submits that in the year 2006, the petitioner’s father submitted an application before the 2nd respondent for permission to put up three shutters on the kitchen side. As no decision was taken by the 2nd respondent within the statutory period, it is stated that the petitioner’s father had put up the shutters in the kitchen portion. It is stated that the 2nd respondent had even without issuing any notice, dispossessed the petitioner’s father on 5.2.2008 and cancelled his licence on 13.2.2008. The petitioner’s father was also served with a notice dated 5.8.2008, imposing punishments for constructing the shutters. The order also contained directions for demolition, to keep open the staircase that leads to the water tank to the public, and also for enhancement of the rent by 10%. The notice dated 5.8.2008 was challenged in Appeal No.508 of 2008 before the Tribunal for Local Self Government Institutions(hereinafter referred to as the Tribunal) and the Tribunal set aside the notice with liberty to the 2nd respondent to initiate fresh proceedings. Since the 2nd respondent did not hand over possession, the petitioner’s father filed W.P.(C)No.214 of 2009 before this Court praying for the restoration of possession of the shop rooms. Pending the writ petition, the 2nd respondent submitted before this Court that the shop rooms can be handed over to the petitioner’s father without demanding enhanced rent but on the condition that the shutters put up will be removed. Regarding opening up of the staircase area for the public, the petitioner’s father was directed to file a representation. On the basis of the submission, the writ petition was disposed of by Ext.P2 judgment dated 23.3.2009. When there was a delay in executing the agreement and in the consideration of the representation regarding the staircase area pursuant to Ext.P2, the petitioner’s father filed a complaint before the Consumer Disputes Redressal Forum, Idukki (CDRF for short), as CC.No.182 of 2009. By Ext.P3 order dated 28.12.2009, the CDRF granted relief to the petitioner’s father, by directing the 2nd respondent to execute the lease agreement within two weeks.

On 8.9.2010, the 2nd respondent issued demand notices to the petitioner’s father demanding amounts for the period during which he was kept out of possession. Ext.P4 is the notice. The petitioner’s father challenged Ext.P4 before this Court in W.P(C)No.31484 of 2010. Since the 2nd respondent had blocked access to the hotel through the main entrance, the petitioner’s father applied to the 2nd respondent on 22.11.2010, for permission to reinstall the shutters in the kitchen portion of room No.VII/4 for the convenient conduct of the business and movement of the public. The application was again re-submitted on 22.1.2011 and a copy of the same is produced as Ext.P5. The petitioner submits that the 2nd respondent had pressurised his father to withdraw the writ petition, W.P.(C)No.31484/2010, and it was hence withdrawn. By Ext.P6 dated 26.7.2011, the petitioner’s father was granted permission to put up shutters in the kitchen portion of room No.VII/4. The petitioner’s father installed the shutters and on 20.4.2012 and 18.6.2012, applied for licence to run the hotel and sought permission to carry out the works for the same. Since no action was forthcoming another representation was submitted on 10.7.2012.

On 23.8.2012, the petitioner’s father was served with a notice dated 17.8.2012, demanding a sum of Rs.1.5 lakhs each as deposits for the three door numbers allotted and Rs.7,500/- each as monthly licence fee for the three door numbers. Ext.P7 is the demand notice. The petitioner submits that Ext.P7 is totally unwarranted and is against Ext.P2 judgment. Ext.P7 shows that the demand is raised on the basis of a decision taken by the 3rd respondent on 24.7.2012. The petitioner challenged the demand raised before the Tribunal in Appeal No.702/2012. By Ext.P8 order dated 9.1.2013, the Tribunal ordered that the appeal was not maintainable and disposed of the appeal granting liberty to the petitioner’s father to challenge the resolution of the 3rd respondent before the Government, which is the remedy available under Section 57 of the Kerala Municipality Act, 1994. The petitioner’s father preferred an appeal before the Government.

On 21.6.2019, the 2nd respondent issued a notice to the petitioner’s father demanding the arrears of rent and asking him to get the agreement renewed. The petitioner’s father replied pointing out the pendency of the appeal before the Government. On 3.12.2019, another notice was issued demanding a sum of Rs.32,84,100/- towards deposit arrears, interest, GST and flood cess. The petitioner’s father challenged the demand before this Court in W.P.(C) No.34367/2019 which was disposed of by Ext.P9 judgment dated 16.12.2019. This Court directed the competent Secretary of the Government to dispose of the appeal filed by the petitioner’s father and to defer all action pursuant to the notices dated 21.6.2019 and 3.12.2019 till the disposal of the appeal. The petitioner’s father expired on 8.6.2020. Thereafter, by Ext.P10 order dated 14.7.2021, the 1st respondent has disposed of the appeal finding that the demand made by the 2nd respondent is sustainable and that the petitioner was liable to pay the arrears computed at Rs.23,17,500/-, interest amounting to Rs.12,05,100/-and Rs.4,50,000/- towards deposit, in five instalments. The writ petition has been filed challenging Ext.P10 order. Apart from the merits of the order regarding the claim, the petitioner also challenges the direction to the petitioner to pay the entire liability, overlooking the fact that deceased C.J.Mathew had other legal representatives, some of whom are impleaded as respondents 4 to 7.

Pending the writ petition, the petitioner has produced Ext.P11 series receipts showing payment of arrears of rent and Ext.P12 receipt showing payment of Rs.5 lakhs as security deposit, towards head rent for disputed door Nos.VII/3A, 3B and 3C, which was paid as directed by this Court in its interim order.

The 2nd respondent has filed a counter affidavit. According to the 2nd respondent, the three shutters put up on the kitchen side of the building which have been allotted numbers as 3A,3B and 3C are separate from the building bearing numbers 2,3 and 4 which was already leased out to the petitioner’s father. It is hence submitted that the demand made is correct and that deposit is demanded for three additional shutters allotted. According to the petitioner the three numbers 3A, 3B and 3C allotted are concerning portions of Room No.VII/4 and are not additional areas let out by the 2nd respondent. The petitioner has produced a rough sketch in support of the above contention. The respondents 4 and 5 have filed a counter affidavit stating that they had given consent to transfer the lease and licence in the name of their father to the petitioner and they are hence not liable to pay any amount.

Heard Sri K.M.Sathyanatha Menon, counsel for the petitioner, Sri Unnikrishnan V. Alappat, Standing Counsel for the respondents 2 and 3, Sri Rajeev Jyothish George, Government pleader for the 1st respondent, Sri Baby Thomas for respondents 4 and 5 and Smt.Elizabeth George for respondents 6 and 7.

A reading of Ext.P10 would show that in paragraphs 1 to 4, the details of the various proceedings have been narrated and in paragraph 5 the factum of the death of the petitioner’s father is noted and the report of the Secretary of the Municipality to the effect that no amount has been paid towards rent of the buildings is stated. In paragraph 6 it is stated that the petitioner and his counsel and the Junior Superintendent representing the Secretary of the Municipality were heard on 17.2.2021. After noticing the amount of arrears stated in the report of the Secretary, Ext.P10 proceeds to issue directions. It is unfortunate that challenges made to resolutions passed by the Local Self Governments are dealt with in such a manner by the concerned authority. Section 57 of the Kerala Municipality Act, 1994 gives power to the Government to cancel or amend a resolution passed by the Council on certain specific reasons. In the case on hand, we are concerned with the 1st and 2nd grounds stated in Section 57, i.e., whether the resolution has been legally passed or taken and whether it is in excess of powers or is an abuse of powers conferred by the Act. While exercising the said power, the Government necessarily has to consider the issue on merits and cannot decide the matter solely on the basis of a report submitted by the Secretary of the Municipality concerned who cannot be expected to submit a report admitting abuse of power or excessive use of power. Ext.P10 does not address any of the contentions raised by the petitioner’s father. It is evident from the documents and the affidavits filed before this Court that the main contentious fact is the existence or otherwise of separate buildings with numbers VII/3A, 3B, and 3C. According to the petitioner, the said numbers are the numbers allotted to the three shutters which have been put up in the already leased out building bearing the number VII/4. The permission sought was itself only to put up shutters on the kitchen side of the existing leased out premises, according to the petitioner. This aspect has not been addressed at all in Ext.P10. It is only if there is a separate building other than the one already leased out, that the question of separate deposit and lease rent for the said buildings will arise. A re-numbering on the basis of the additional shutters does not in any way create additional leased space. Unless the above factual aspect is resolved in favour of the 2nd respondent, there can be no justification for any additional demand. It is also worthwhile to note that in paragraph 2 of Ext.P10 all that is stated is that the petitioner’s father had removed the existing wall and put up shutters there, which will not be the construction of any additional space over and above the leased out portion. This aspect is also clear from Ext.P6 which only relates to putting up of shutters to facilitate entry into the building from the side of the Town Hall. Regarding the liability to pay rent for the period during which the petitioner’s father was kept out of possession, the 2nd respondent is bound by Ext.P2 judgment.

Another aspect that the 1st respondent has not addressed is the casting of the liability on the petitioner alone, even it is to be held that the demand was sustainable. It is trite law that the legal representatives are liable to pay the liabilities of their predecessor-in-interest, to the extent of the properties inherited by them from the deceased. The petitioner can only be treated as a representative of all the legal representatives and the entire liability if such liability exists, cannot be mulcted upon the petitioner. Ext.P10 is erroneous regarding that aspect also.

As regards the contentions raised by the 2nd respondent regarding the sub-lease of the premises by the petitioner’s father, that is an aspect that has to be dealt with in separate proceedings. The 2nd  respondent has to initiate action against the lessee if it is of the opinion that there is a violation of lease conditions. It will not be appropriate for this Court to hazard an opinion on that issue, in a case that relates to the correctness of a resolution passed by the Municipality, regarding demands to be raised against the petitioner’s father towards security deposit and lease rent. In view of the above findings, I do not think that it is necessary to relegate the petitioner over again to the 1st respondent for a fresh decision on the appeal.

In the result, the writ petition is allowed. Exts.P7 and P10 are quashed. Decision No.25 dated 24.7.2012, of the 3rd respondent Municipal Council, is declared to be not in accordance with the law. As already held in Ext.P2 judgment, the petitioner or other legal representatives shall not be made liable for any amount which represents lease rent or licence fee or interest thereon for the period during which the petitioner’s father was kept out of possession. This judgment will not in any affect the right of the 2nd respondent to take any action in accordance with law, against the petitioner or other legal representatives, if there is any violation of the lease conditions or licence conditions. It is also made clear that if the 2nd respondent is of the opinion that the petitioner is in possession of any area in excess of the space covered by Shop Nos.VII/2,3 and 4, they are free to take necessary action in accordance with law, with notice to all the legal representatives of deceased Sri C.J.Mathew, clearly indicating in such notice the excess area that is found to be in their possession. Regarding the amounts deposited by the petitioner pursuant to the interim order issued by this Court, the petitioner may seek an adjustment of any excess amount deposited, towards the rent arrears if any or towards future rent payable.