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2021 Supreme(Ker) 671
IN THE HIGH COURT OF KERALA AT ERNAKULAM
S. MANIKUMAR, SHAJI P. CHALY, JJ.
K.S. Hydrose S/o Syed Mohammed – Appellant
Versus
Kunnathunadu Grama Panchayat – Respondent
W.A. No. 1181 of 2021
Decided On : 16-09-2021
Advocate Appeared:
For the Appellant : Sri. P.K. Ravi Sankar.
For the Respondents: Dr. Abraham P. Meachinkara, Sri. Tek Chand, Sri. Sajeev Kumar K. Gopal.
Point of Law: Tenant - Subletting - Even though the appellant has a contention that appellant had the liberty to sublet the building as per the agreement executed by and between the appellant and the landlord, if subletting is permitted, it can only be let out in accordance with the provisions of the Kerala Panchayat Raj Act, 1994 and the Kerala Panchayat Building Rules, 2019.
Headnote:
Kerala Panchayat Raj Act, 1994 - Kerala Panchayat Building Rules, 2019 - Subletting - Tenancy - Appellant has sought to quash Exhibit P4 communication issued by the Secretary of Kunnathunad Grama Panchayat - the 2nd respondent whereby the appellant was directed to stop the functioning of the lodge illegally conducted in the first floor of the building - learned single Judge, after assimilating the facts and figures, held that the lodge conducted in the building in question is an illegal act and therefore, impugned notice issued by the Secretary of the Grama Panchayat was legal and valid.
Finding of the Court:
It is in clear violation of the laws, accommodation is being provided to the staff of the 5th respondent company, which is an admitted fact. The imperative expression “Shall” used in Section 4(3) of the Rules, 2019 makes it abundantly clear that without securing permission for category change, a building cannot be used for any occupation other than the occupancy for which permit was granted. Therefore, we have no hesitation to hold that the learned single Judge was right in holding that without securing a category change in contemplation of law, the appellant could not have conducted the lodging business. There is no case for the appellant that the category change was sought for by the appellant or the landlord. Yet another significant aspect generates in our mind is the question as to the maintainability of the writ petition, because the impugned order was passed by the secretary of the Grama Panchayat on the basis of an interim direction issued in an earlier writ petition and if at all the appellant had any grievance it ought have been agitated in that writ petition itself.
Result: Writ Appeal dismissed.
JUDGMENT :
SHAJI P. CHALY, J.
1. Writ petitioner has filed the appeal, challenging the judgment of the learned single Judge dated 6.9.2021 in W.P. (C) No. 16225 of 2021, wherein the appellant has sought to quash Exhibit P4 communication issued by the Secretary of Kunnathunad Grama Panchayat the 2nd respondent dated 9.8.2021, whereby the appellant was directed to stop the functioning of the lodge illegally conducted in the first floor of the building bearing door No. VII/1143-B, in accordance with the directions in the order dated 2.8.2021 in W.P. (C) No. 15093/2021, apparently filed by the landlord against the writ petitioner herein. Landlord is the 4th respondent in the writ petition and the instant appeal. The learned single Judge, after assimilating the facts and figures, held that the lodge conducted in the building in question is an illegal act and therefore, Exhibit P4 impugned notice issued by the Secretary of the Grama Panchayat was legal and valid. It is thus challenging the legality and correctness of the findings and directions, the appeal is filed.
2. Brief material facts for the disposal of the appeal are as follows; appellant took on rent ground floor and first floor of the building in question from the 4th respondent landlord viz. M.K. Sasi, apparently for conducting the business of Supermarket as per a lease deed dated 8.4.2019 bearing Registration No. 2477 of 2019 of the Office of Sub Registrar, Puthencruz. The case projected by the appellant was that due to the present emergent situation of COVID-19 pandemic, the business of the appellant was substantially reduced and therefore, the supermarket business was compelled to be confined to the ground floor of the building. Thereupon, by virtue of the liberty granted to the appellant by the landlord to sublease the building, appellant sublet the building to the 5th respondent viz. M/s. Kitex Childrenswear Limited, Kizhakkambalam, Ernakulam District on 24.1.2021. It was thereafter that Exhibit P4 was served on the appellant.
3. The sum and substance of the contention advanced by the appellant is that appellant is not conducting any lodge in the first floor of the building though he has sublet the same to the 5th respondent. It is also pointed out that the 5th respondent is using the same for accommodating its staff. The paramount contention in the appeal is that the Secretary of the Grama Panchayat did not afford the appellant any opportunity of hearing before the impugned order was passed; that the learned single Judge proceeded on a wrong assumption that a lodge was being conducted by the appellant in the first floor of the building, whereas this Court in W.P. (C) No. 15093/2021 filed by the landlord only directed the Grama Panchayat and the Secretary to ensure that any business, which requires licence including the lodge is not conducted in the premises in question and therefore, the Secretary of the Grama Panchayat ought to have conducted a due enquiry before issuing the impugned order and that apart it is contended that section 107 of the Travancore Cochin Public Health Act, 1955, (hereinafter called, 'the Act, 1955) mandates registration of “lodging house” and “lodging house” is defined under section 2(22) of Act, 1955 to mean, “ a hotel, a boarding house, a choultry, a dharmasala or a rest house not maintained by the Government or a local authority, an unlicensed emigration depot or any place where, on payment, casual visitors are received and provided with sleeping accommodation with or without food but does not include a students' hostel under public or recognised control; or a house licensed under section 129 for accommodation of visitors to a fair or festival; or retiring rooms and rest houses provided by a railway administration and normally used by passengers or railway servants or both.
4. Therefore, the sum and substance of the contention, relying upon
