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IN THE HIGH COURT OF KERALA AT ERNAKULAM
SHAJI P. CHALY, J.
Baby S., W/o. Late Babu - Petitioner
Versus
Kalluvathukkal Grama Panchayat, Represented by its Secretary & Ors. - Respondents
W.P.(C) No. 24663 of 2019
Decided On : 17-09-2021
Rent/license deeds - Widow of deceased - Petitioner had requested the Panchayat to change the license of the shop room in her name and also conveyed that the income generated from the business conducted in the building is the only source of livelihood of herself and her family - Panchayat has decided to conduct fresh auction and directed the petitioner to vacate the premises - Auction purchaser - has got himself impleaded in the writ petition as additional second respondent and basically in it he has contended that the shop rooms were bid by him in the auction and he became the tenant of the shop room.
Finding of the Court: There are no rent arrears due to the Panchayat up to the death of the husband of the petitioner. Neither the petitioner in the reply nor the Panchayat in its counter affidavit has stated as to whether there is any rent due - it is admitted by the petitioner, the Panchayat, and the additional second respondent that the shop rooms still remain in the possession of the Panchayat and now almost two years have elapsed. Therefore, there is no point in directing the Panchayat to put the petitioner in possession of the building in question. But, since the basic requirements contained under the proviso to Rule 7(4) is not complied with by the Secretary of the Panchayat, I am of the considered opinion that the auction notice issued by the Panchayat is also illegal and bad, accordingly Ext P7 is also quashed.
Result: Petition allowed.
JUDGMENT :
The petitioner is the widow of one late K. Babu, who was running a bakery and Medical Shop at room Nos. 865A and 865 at Parippally Shopping Complex owned by the Kalluvathukkal Grama Panchayat, the 1st respondent.
2. According to the petitioner, late Babu was running the business in the said building from 1992 onwards on the basis of the rent/license deeds executed periodically and the last deed was executed on 01.02.2019 for a period of one year with effect from 01.04.2019. On 06.08.2019, Babu passed away due to heart attack. According to the petitioner, on 24.08.2019, the petitioner had requested the Panchayat to change the license of the shop room in her name and also conveyed that the income generated from the business conducted in the building is the only source of livelihood of herself and her family.
3. On 24.08.2019, the Panchayat had apparently issued Ext. P6 notice without addressing anyone. In the notice, it is stated that since Sri. Babu died, functioning of the shop in the building is against the provisions of the terms and conditions of auction and therefore, the Panchayat has decided to conduct fresh auction and directed the petitioner to vacate the premises on or before 31.08.2019. It is also pointed out that on 01.09.2019, Ext. P7 notice was published in the notice board of the Grama Panchayat informing the public that the shop rooms will be auctioned on 18.09.2019 at 3 p.m., which came to the notice of the petitioner belatedly. It was under the aforesaid background that the petitioner has filed the writ petition seeking to quash Ext. P6 notice dated 24.08.2019 and Ext. P7 auction notice dated 01.09.2019. The petitioner has also sought for consideration of Ext. P5 representation dated nil requesting the Panchayat to transfer the licence in favour of the petitioner.
4. The Panchayat has filed a detailed counter affidavit refuting the allegations and the claims and demands raised by the petitioner. The paramount contention advanced is that even though Ext. P6 notice and the auction notice are dated 24.08.2019 and 01.09.2019, the petitioner has approached this Court on the date fixed for the auction, which itself would show that the petitioner has no interest in the shop rooms. Such a contention is advanced on the basis that the petitioner's husband late Babu has alienated the shop rooms by executing Ext. R1(a) document and has received an amount of Rs. 25 lakhs from one Abdul Bysi. It is also the submission of the Panchayat that when the subject issue was intimated to the said Abdul Bysi, he had surrendered the key of the building to the Panchayat and it was thereafter that Ext. P7 auction notice was issued on 01.09.2019. Therefore, according to the Panchayat, there is no manner of illegality or arbitrariness on the part of the Panchayat in issuing the impugned notice and it was accordingly that, auction was conducted on 18.09.2019 and confirmed it in favour of the said Abdul Bysi. It is also submitted that the possession is still remaining with the Panchayat, since this writ petition is pending before this Court.
5. A reply affidavit is filed by the petitioner refuting the allegations raised by the Panchayat and also submitting that in fact the petitioner has not received Ext. P6 notice in person and the said notice was put in one of the shop rooms in question and therefore, the Panchayat has not complied with the statutory requirements as per the Kerala Panchayat Raj Act, 1994 ('Act, 1994' for short). The petitioner has also produced a bylaw made by the Panchayat and approved by the statutory authority in contemplation of law and it is submitted that as per clause (6) of the byelaw, even without auction, the rooms can be allotted in favour of the existing licensee by fixing enhanced rent. According to the petitioner, a legal heir of the licensee is, therefore, entitled to make a request to transfer the licences in favour of the legal heirs. It is also pointed out that the mandatory requirements of law are
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