FATHIMA v. PALAKKAD MUNICIPALTIY

W.P.(C) NO.36291/2010 APPENDIX PETITIONER'S EXHIBITS:- P1:- COPY OF PARTNERSHIP AGREEMENT DT.D 19.1.84 ENTERED IN TO BETWEENPETITIONER'S HUSBAND AHAMMEDKUTTY.P2:- COPY OF CERTIFICATE OF REGISTRATION ISSUED BY THE RESPONDENT INFAVOUR OF ABOOBACKAR.P3:- COPY OF RECEIPT ACKNOWLEDGING THE RECEIPT OF THE LICENSE FEE.P4- COPY OF APPLICATION FOR RENEWAL OF THE LICENSE IN THE NAME OF THEPETITIONER.P5:- COPY OF CONSENT LETTER OF THE LEGAL HEIRS OF LATE T.ABOOBACKERP6:- COPY OF RECEIPT ACKNOWLEDGING THE RECEIPT OF THE LICENSE FEE FOR THEPERIOD 2010-2010 P7:- COPY OF NOTICE DTD. 24.6.2010 ISSUED TO THE PETITIONER.P8:-COPY OF ORDER DTD 15.10.2010 DIRECTING TO CLSOE DOWN THE FIRM ISSUED BYTHE RESPONDENT.P9:- COPY OF PLAINT IN OS. 77/2009 FILED BY ADDITIONAL RESPONDENTS 3 TO 5BEFORE THE SUB COURT, PALAKKAD.RESPONDENT'S EXHIBITS:- R3(a):- COPY OF LEGAL HEIRSHIP CERTIFICATE NO.K.DIS. A1-4893/03 DTD. 1.1.2004ISSUED BY TAHSILDAR, TIRUR.R3(b):- COPY OF SALE DEED DT.D 2.11.79 OF S.R.O. PALAKKAD IN FAVOUR OFAHAMMEDKUTTY HAJI AND ANOTHER.R3(c):- COPY OF RELEASE DEED 2.11.1979 OF S.R.O. PALAKKAD IN FAVOUR OFAHAMMEDKUTTY HAJI & ANOTHER.R3(d):- COPY OF DEED OF RECONSTITUTION OF PARTNERHIP DT.D 23.9.1985 INBETWEEN AHAMMDEKUTTY HAJI & OTHERS.R3(f):- COPY OF THE ORDER DTD. 30.3.2009 IN WPC. 5294/2009 OF THE HONOURABLEHIGH COURT OF KERALA.R3(g):- COPY OF ORDER DT.D 20.11.2010 IN OP. 1593/2010 OF THE HONOURABLEOMBUDSMAN FOR LOCAL SELF GOVT. INSTITUTION.R4(1):- COPY OF LEGAL HEIRS CERTIFICATE NO.K.DIS. A1-4893/03 DTD. 1.1.2004 ISSUEDBY TAHSILDAR TIRUR.R4(2):- COPY OF JENMOM NAME TRANSFER ORDER ON 10.6.2004 BY THE PALAKKADMUNICIPALITY.R4(3):- COPY OF THE PALAKKAD MUNCIPAL NOTICE DTD. ON 15.4.2006.tss WP(C) NO.36291/2010R4(4):- COPY OF COMPLAINT FILED BY ADDL.RESPONDENT 3 AND OTHERS DTD.4.6.2007, BEFORE THE PALAKKAD MUNICIPALITY.R4(5):- COPY OF COMPLAINT FILED BY ADDL.RESPONDENT 3 DTD. 22.1.2009 BEFORETHE PALAKKAD MUNICIPALITY.R4(6):- COPY OF THE COMPLAINT FILED BY ADDL.RESPONDENT 4 BEFORE PALAKKADMUNICIPALITY DTD. ON 3.11.2009.R4(7):- COPY OF PETITION FILED BY ADDL. RESPONDENT 4 BEFORE THE HONOURABLEOMBUDSMAN DTD. ON 24.11.2009.R4(8):- COPY OF HONOURABLE OMBUDSMAN ORDER DTD. 24.11.2009.R4(9):- COPY OF PALAKKAD MUNICIPALITY NOTICE ISSUED TO SMT.FATIMA(PETITIONER) WIFE OF ABOOBACKER DTD. ON 10.3.2010.R4(10):- COPY OF THE NOTICE ISSUED BY PALAKKAD MUNICIPALITY TOADDL.RESPONDENT 4 DTD. ON 10.3.2010.R4(11);- COPY OF RTI FILED BY ADDL. RESPONDENT 4 BEFORE THE PALAKKADMUNICIPALITY.R4(12):- COPY OF NOTICE ISSUED BY PALAKKAD MUNICIPALITY TO PETITIONEMR DT.DON 24.6.2010.R4(13):- COPY OF RTI REPLY FROM THE PALAKKD MUNICIPALITY ADDL. RESPONDENT4 DTD. ON 16.7.2010.R4(14):- COPY OF PETITION FILED BY ADDL.RESPONDENT 4 BEFORE THEHONOURABLE OMBUDSMAN FOR LOCAL SELF GOVERNMENT DTD. ON 13.9.2010.R4(15):- COPY OF HONOURABLE OMBUDSMAN ORDER DTD ON 20.11.2010.R4(16):- COPY OF COMPLAINT FILE*D BEFORE C.I., NORTH POLICE STATION PALAKKADDTD. ON 17.12.2010.R4(17):- COPY OF AFFIDAVIT FILED BEFORE THE HONOURABLE OMBUDSMAN BYPALAKKAD MUNICIPALITY DTD. ON 23.2.2011.R4(18):- COPY OF COMPLAINT FILED BY ADDL.RESPONDENT 4 BEFORE DEPUTYSUPERINTENDENT OF POLICE, PALAKKAD DTD ON 15.6.2011.R4(19):- COPY OF CONSENT LETTER PRODUCED BY PETITIONERS HUSBAND BEFOREPALAKKAD MUNICIPALITY DTD. ON 3.7.2001.25/06/2012 //TRUE COPY//P.A. TO JUDGE tss ANTONY DOMINIC, J. ================W.P.(C) NO. 36291 OF 2010===================Dated this the 25th day of June, 2012J U D G M E N THeard the learned counsel for the petitioner, the 4threspondent who appeared as party in person and the learnedstanding counsel appearing for respondents 1 and 2.2.In 1984, a partnership firm was constituted. Thepartners of the firm were T.Ahammedkutty Haji, T.Aboobacker,K.V.Kunhava Haji, K.V.Saidutty and Sri.P.V.Moosakutty. Thepetitioner herein is the wife of Sri.T.Aboobackar. Sri.Aboobackerand Sri.K.V.Saidutty were the Managing Partners of the firm. On17/8/95, Sri. Kunhava Haji expired, as a result, the firm wasreconstituted. 3.In 1986, Sri.Aboobacker got himself registered as thekeeper of the lodging house in terms of the provisions containedin Madras Public Health Act, 1939. This was being renewed fromtime to time till 2009-10. In the meantime, Ahammedkutty Hajiexpired on 24/12/1986 and his wife was inducted into the firm in1986 December itself. 4.Sri.Aboobacker expired on 16/10/2009. Following his WPC.No.36291/10:2 :death, petitioner submitted Ext.P4 application dated 10/2/2010requesting for renewal of the registration as Keeper of the lodginghouse in her favour. That application of the petitioner wassupported by consent letters executed by the other legal heirs ofAboobacker also. On receipt of the application, Municipality issuedExt.P7 communication requiring the petitioner to produce thedocuments mentioned therein as also consent of the other “JEMA”holders of the property. The documents as directed in Ext.P7 werenot produced. Therefore, Municipality issued Ext.P8 noticeordering closure of the lodging house. 5.It is thereupon the petitioner filed this writ petitionseeking to quash Ext.P8 and to declare that the petitioner isentitled to registration of licence as provided under Section 492(4) of the Kerala Municipality Act without the consent of any otherperson. There is also a prayer to direct respondents 1 and 2 toconsider and pass orders on Ext.P4 application made by her.6.Subsequent to the filing of this writ petition,respondents 3 to 5, some of the legal heirs of Ahammed KuttyHaji got themselves impleaded and they are resisting the prayerof the petitioner. WPC.No.36291/10:3 :7.Having heard the learned counsel for the petitionerand also the arguments on behalf of the respondents, I aminclined to think that this writ petition is defective for non jointerof necessary parties. Admittedly, the lodge in question was anasset of the firm. In Ext.P7, what is sought for by the Municipalityis the consent from all JEMA holders. Even according to thepetitioner, in addition to herself and her children, the jemaholders include the legal heirs of Ahamedkutty Haji. Despite this,it was without impleading those people, the writ petition was filedcontending that to the exclusion of others, she is entitled to havethe registration renewed in her favour.8.In my view, such a relief could not have asked for norcould this Court have granted, without hearing the other affectedparties namely the other jema holders. Therefore, the writpetition as filed was defective for non jointer of necessary parties.9. The registration in question was granted underChapter XIII of the Madras Public Health Act, 1939. Thatregistration was in the name of her deceased husband and wasobtained by him only as a representative of the firm. When heexpired, only a representative of all the owners could have got a WPC.No.36291/10:4 :fresh registration and for such a registration, necessarily theconsent of all owners was absolutely necessary.10.In so far as Section 492(4) relied on by the learnedcounsel for the petitioner is concerned, Section 492(4) providesthat where any applicant seeking renewal of a licence orpermission in respect of the trade or business is a person differentfrom the original licensee, the consent of the owner shall berequired. However, section itself provides that such consent shallnot be insisted upon when the applicant is the legal heir of theoriginal licencee. Section 492 lays down the general provisionsregarding licences and permissions and sub section (1) thereofprovides that the provisions of this section will have applicationonly in respect of licence and permission granted “under this Act”.Therefore, this provision can regulate grant or renewal of licenceand permission under the Kerala Municipality Act alone.Admittedly, the registration, the grant/renewal which was soughtfor is not one under the Kerala Municipality Act, but is under theprovisions of the Madras Public Health Act. Therefore, Section492(1) of the Kerala Municipality Act cannot be of any assistance.11.Madras Public Health Act does not contain any WPC.No.36291/10:5 :provision similar to Section 492(4) in order to enable thepetitioner to claim that without obtaining consent of otherinterested persons, if the applicant is a legal heir of a person whohas already obtained registration, registration should be renewed.In such a situation, consent of all owners is necessary.12.Therefore, for both reasons, I do not find anythingillegal in Ext.P7. Consequently, the prayer sought for by thepetitioner cannot be granted.Writ petition fails and is dismissed.ANTONY DOMINIC, JUDGERp