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2000 DIGILAW 21 (KER)

Muhammed Ishock v. Malappuram Municipality

2000-01-11

G.SIVARAJAN

body2000
Judgment :- G. Sivarajan, J. The petitioner in O.P. No. 25881 of 1999 is a licensee of the cinema theatre by name 'Delight Talkies'. The land in which the theatre is situated is given by respondents 2 to 5. The petitioner has been conducting the cinema theatre after obtaining licence from the authorities concerned. Respondents 2 to 5 filed a civil suit, O.S. No. 32 of 1989 for recovery of the land in which the cinema theatre is situated from the petitioner. The said suit is decreed and it has become final also. Respondents 2 to 5 took out proceedings for execution of the decree by filing E.P. No. 94 of 1998 before the Court of the Subordinate Judge, Manjeri. The decree in the suit provided for value of improvements to the petitioner. The E.P. is now pending. The present grievance of the petitioner is that the first respondent Municipality is not renewing the licence in respect of the theatre on the ground that respondents 2 to 5 have filed objection to the same. 2. O.P. No. 27517 of 1999 is filed by respondents 2 to 5 in O.P. No. 25881 of 1999 seeking cancellation of the licence issued to the petitioner in the first mentioned Original Petition. 3. I have heard the learned counsel appearing for the parties in both the Writ Petitions. 4. The only question arises for consideration in these cases is as to whether the petition in O.P. No. 25881 of 1999 is entitled to get renewal of the licence and/or to conduct the theatre during the pendency of the execution petition pending before the Subordinate Court. The decree holders who are the petitioners in O.P. No. 27517 of 1999 contends that they got objection to the renewal of the said licence for the reason that they already obtained an order for recovery of the land and building on payment of the value of the improvements and, therefore, the petitioner cannot be given any licence after the decree. 5. The learned counsel appearing for the decree holders (Petitioners in O.P. No. 27517 of 1999) relied on the decisions of this Court in Vamakshy v. State of Kerala (1983 KLT 53) and Philomina v. Executive Officer (1987 (2) KLT 89) and submitted that if objection is raised by the landlords of the building the authorities cannot renew the licence. 5. The learned counsel appearing for the decree holders (Petitioners in O.P. No. 27517 of 1999) relied on the decisions of this Court in Vamakshy v. State of Kerala (1983 KLT 53) and Philomina v. Executive Officer (1987 (2) KLT 89) and submitted that if objection is raised by the landlords of the building the authorities cannot renew the licence. The learned counsel appearing for the licensee relied on the decision of this Court in Marimuthu v. Director General of Police (1993 (2) KLT 662) and submitted that for getting renewal of the licence permission of the landlord is not required. 6. I find that the Division Bench of this Court in Vamakshy's case held that the consent of the landlord will be irrelevant only if the applicant has got statutory right in possession. In this case, the licensee is entitled to the possession of the land and building till the value of the improvements directed in the decree in the civil suit is paid unless a direction to the contrary is issued in the decree or by the execution court. There is no such contrary direction in the decree of any order in the execution petition. In such circumstances, the petitioner in O.P. No. 25881/1999 is entitled to the licence for conducting cinema theatre until otherwise ordered by the civil court in the execution petition till delivery of the building. Accordingly there will be a direction to the first respondent in O.P. No. 25881 of 1999 not to proceed with Ext. P1 notice and there will be a further direction that if the petitioner in O.P. No. 25881 of 1999 makes any application for renewal of the licence the same will be renewed after complying with the relevant formalities other than consent from the respondents. However, it will be made clear in the said licence that it will be valid only till delivery and/or any direction to the contrary is issued by the execution court. Original Petitions are disposed of as above.