High Court of KeralaSingle Judge2021-09-24Writ petition is disposed of as above.

Anitha Juby v. Municipality of Pathanamthitta and others

Case / Petition Number:WP(C) No.15428/2021

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Nagareesh
Judgment Date: 2021-09-24
Court Decision / Holding: Ext.P3 notice is set aside. Respondents 1 and 2 are directed to consider the application for trade licence submitted by the petitioner in the light of the Supreme Court judgment in Sudhakaran v. Corporation of Trivandrum (supra). A decision in this regard shall be taken within one month.
Final Disposition: Writ petition is disposed of as above.

Parties to the Case

Appellants / Petitioners

Anitha Juby

Respondents

Municipality of Pathanamthitta
Secretary, Municipality of Pathanamthitta
K.S. Santhosh Kumar

Legal Representation & Advocates

Counsels for Petitioners

• Manu Ramachandran
• M. Kiranlal
• R. Rajesh
• T. S. Sarath
• Sameer M Nair

Counsels for Respondents

• Adv. James Abraham

Case Synopsis & Summary

This writ petition concerns a tenant, Anitha Juby, who seeks a trade licence from the Pathanamthitta Municipality to run an optical items business, colour lab, and medical items. The petitioner applied for a licence, but the 2nd respondent issued a notice (Ext.P3) insisting on a landlord’s written consent and identity proof before processing the application. The tenancy is evidenced by Ext.P1, a deed of tenancy, under which the petitioner is said to have possession of the premises for business purposes; however, the landlord allegedly withheld consent and has filed a Rent Control Petition (Ext.P2) under the Kerala Buildings (Lease and Rent Control) Act. The petitioner contends that Section 492(3) of the Kerala Municipalities Act, 1994, and the Supreme Court’s pronouncements, confer a tenant’s right to operate a business without formal landlord consent for a first-time licence, citing Sudhakaran v. Corporation of Trivandrum (2016 (3) KLT 247). Respondents contend that Sections 492(3) and (4) require written landlord consent for a fresh licence and that Ext.P1 shows tenancy may be limited to 2016, undermining the petitioner’s eligibility. The court relies on the noted Supreme Court principle and sets aside Ext.P3, directing the Respondents to consider the licence application in light of Sudhakaran within one month. The writ petition is disposed of with these directions.

Provisions of Law Cited

Section 492(3) of the Kerala Municipalities Act, 1994Section 492(4) of the Kerala Municipalities Act, 1994Section 11 of the Kerala Buildings (Lease and Rent Control) Act, 1965

Legal Doctrines & Maxims

Implied landlord consent in tenancy allows tenant to use premises for legitimate business
Tenant cannot be deprived of running a lawful business merely because the landlord withheld consent (Sudhakaran v. Corporation of Trivandrum)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submits that, under the Kerala Municipalities Act, a fresh trade licence should not be denied solely on the ground of absent landlord consent when the tenancy is evidenced and the applicant seeks to commence business. The tenancy deed (Ext.P1) allegedly grants lawful possession; Ext.P3 notice requiring landlord consent is inconsistent with Sudhakaran’s principle, and the landlord’s withholding of consent cannot bar the licence for a first-time application. The court should direct the 2nd respondent to grant or process the licence within a fixed time, treating the tenancy as a valid basis for running the business and applying the Supreme Court principle.

Contentions of Respondents

The respondents rely on Sections 492(3) and (4) of the Kerala Municipalities Act for requiring written landlord consent in a fresh licence. They contend the tenancy evidenced by Ext.P1 shows a limited term ending 2016, thus the petitioner cannot be treated as a tenant deserving a licence. They argue that compliance with landlord consent is mandatory and non-compliance cannot be overlooked; Ext.P3 cannot be quashed without evaluating the tenancy validity and the existing rent control petition.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sudhakaran v. Corporation of Trivandrum and another	2016 (3) KLT 247	Positive	The court uses this decision to hold that a tenant cannot be deprived of running a lawful business for want of landlord consent at the initial licencing stage.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Anitha Juby v. Municipality of Pathanamthitta and others and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 24[TH] DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943** **WP(C) NO. 15428 OF 2021** ## **PETITIONER:** **ANITHA JUBY, AGED 48 YEARS, D/O. THOMAS GEORGE, TEENA BHAVAN, KOLLAMPADI JUNCTION, ELANTHOOR EAST P.O, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT – 689643. BY ADVS. SRI.MANU RAMACHANDRAN SRI.M.KIRANLAL SRI.R.RAJESH (VARKALA) SRI.T.S.SARATH SRI.SAMEER M NAIR** ## **RESPONDENTS:** |**1**|**THE MUNICIPALITY OF PATHANAMTHITTA,**| |---|---| ||**MUNICIPAL OFFICE,**| ||**PATHANAMTHITTA - 689645,**| ||**REPRESENTED BY ITS SECRETARY.**| |**2**|**THE SECRETARY,**| ||**MUNICIPALITY OF PATHANAMTHITTA,**| ||**MUNICIPAL OFFICE,**| ||**PATHANAMTHITTA – 689645.**| |**3**|**K.S. SANTHOSH KUMAR,**| ||**S/O. K.A SIVALINGAM PILLAI,**| ||**AGED 50 YEARS,**| ||**SANTHOSH NIVAS,**| ||**RANNI P.O,**| ||**THOTTAMON MURI,**| ||**RANNI VILLAGE, RANNI,**| ||**PATHANAMTHITTA DISTRICT – 689672.**| WP(C) No.15428/2021 : 2 : ***4 P.V. SAUDAMINI AMMAL, (DELETED) W/O. K.A SIVALINGAM PILLAI, AGED 75 YEARS, SANTHOSH NIVAS, RANNI P.O, THOTTAMON MURI, RANNI VILLAGE, RANNI, PATHANAMTHITTA DISTRICT - 689672.** **(R4 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 22/09/2021 IN IA 1/2021 IN WPC 15428/2021)** ## **R1-2 BY ADV JAMES ABRAHAM (VILAYAKATTU)** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) No.15428/2021 : 3 : ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 24[th] day of September, 2021**_ Petitioner, a tenant of the 3[rd] respondent, has approached this Court seeking to direct the 2[nd] respondent to take appropriate steps as mandated under the Municipalities Act for grant of trade licence to the petitioner without insisting for further consent or other documents from the landlord other than the rent agreement within a time limit fixed by this Court. 2. The petitioner applied for trade licence to run a business of optical items, colour lab, medical items, etc. The 2[nd] respondent issued Ext.P3 notice to the petitioner stating that unless the petitioner produces a written consent from the landlord and the identity proof, her application for trade licence cannot be processed further. 3. The petitioner would contend that she has entered into a tenancy agreement with the 3[rd] respondent as per WP(C) No.15428/2021 : 4 : Ext.P1 deed of tenancy. Subsequently, there was difference of opinion between the petitioner and the landlord and the landlord has now filed Ext.P2 Rent Control Petition invoking Section 11 of the Kerala Buildings (Lease and Rent Control) Act, 1965. Being inimical towards the petitioner, the landlord is not providing his identity proof, to the petitioner. 4. The learned counsel for the petitioner submitted that the Hon'ble Apex Court had occasion to consider the issue in the context of Section 492(3) of the Kerala Municipalities Act, 1994 and has held in the judgment in _**Sudhakaran v. Corporation of Trivandrum and another**_ _[2016 (3) KLT 247]_ that even in the case of application for obtaining licence for the first time, the tenant cannot be deprived of running lawful business merely because the landlord withheld the consent. Valid tenancy itself has implied authority of the landlord for legitimate use of the premises by the tenant. In view of the law laid down by the Apex Court, respondents 1 and 2 are not justified in insisting for production of a written consent from the landlord for issuing trade licence. WP(C) No.15428/2021 : 5 : 5. Respondents 1 and 2 have filed a counter affidavit wherein they stated that as per Section 492 (3) and (4) of the Kerala Municipalities Act, the petitioner is required to produce written consent from the landlord. According to respondents 1 and 2, sub-section (4) of Section 492 is not applicable to the case of the petitioner because it relates only to the renewal of licence. Here, the petitioner has applied for a fresh trade licence. Therefore, in view of Section 492(3) of the Kerala Municipalities Act, the petitioner has to produce written consent from the landlord. 6. Respondents 1 and 2 further pointed out that the application for trade licence was made by the petitioner only in the year 2021. The period of tenancy as provided in Ext.P1 deed of tenancy is only up to 30.05.2016. Therefore, the petitioner cannot be treated as one holding the building on the basis of a valid tenancy. 7. I have heard the learned counsel for the petitioner and the learned Standing Counsel for respondents 1 and 2. There is no appearance on behalf of the 3[rd] respondent WP(C) No.15428/2021 : 6 : ## though notice was served on him. 8. Ext.P1 deed of tenancy would show that the petitioner has come to possession of the building in question in a legal manner. The petitioner cannot be treated as a trespasser into the property. Ext.P1 deed of tenancy would also show that the tenancy was created for the purpose of running business of optical items, colour lab, medical items, etc. 9. The Hon'ble Apex Court has held in the judgment in _**Sudhakaran v. Corporation of Trivandrum and another**_ (supra) that even in the case of application for obtaining licence for the first time, the tenant cannot be deprived of running lawful business merely because the landlord withheld the consent. In view of the judgment of the Hon'ble Apex Court, I am of the opinion that the respondents shall consider the application submitted by the petitioner in the light of the judgment of the Hon'ble Apex Court. 10. In such circumstances, Ext.P3 notice is set aside. Respondents 1 and 2 are directed to consider the application WP(C) No.15428/2021 : 7 : for trade licence submitted by the petitioner in the light of the judgment of the Hon'ble Apex Court in _**Sudhakaran v. Corporation of Trivandrum and another**_ (supra). A decision in this regard shall be taken within a period of one month. Writ petition is disposed of as above. Sd/- **N. NAGARESH, JUDGE** aks/27.09.2021 WP(C) No.15428/2021 : 8 : ## **APPENDIX OF WP(C) 15428/2021** ## **PETITIONER'S EXHIBITS:** **Exhibit P1 THE TRUE COPY OF THE RENT DEED DATED 16.07.2015 Exhibit P2 THE TRUE COPY OF THE R.C.P NO. 2/2017 BEFORE RENT CONTROL COURT, PATHANAMTHITTA ON THE GROUND OF ARREARS OF RENT AND BONAFIDE NEED. Exhibit P3 THE TRUE COPY OF THE NOTICE NO. H17114/2021 & H1-7012/2021 DATED 02.07.2021 ISSUED BY THE 2ND RESPONDENT.** SR