Asha Anilkumar v. Cherthala Municipality and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 12[TH] DAY OF JANUARY 2022/22ND POUSHA, 1943** **WP(C) NO. 5367 OF 2021** ## **PETITIONER:** **ASHA ANILKUMAR AGED 45 YEARS W/O. ANILKUMAR, KALATHIL HOUSE, CMC-33, CHERTHALA P.O., ALAPPUZHA** **BY ADVS. JOBY JACOB PULICKEKUDY SRI.ANIL GEORGE SHRI.DAJISH JOHN SHRI.HARIKRISHNAN P.** ## **RESPONDENTS:** - **1 CHERTHALA MUNICIPALITY REPRESENTED BY ITS SECRETARY, MUNICIPALITY OFFICE, CHERTHALA, ALAPPUZHA DISTRICT-688 582** - **2 THE SECRETARY, CHERTHALA MUNICIPALITY, MUNICIPALITY OFFICE, CHERTHALA, ALAPPUZHA DISTRICT-688 582** - **3 THE HEALTH SUPERVISOR, CHERTHALA MUNICIPALITY, CHERTHALA, ALAPPUZHA DISTRICT-688 582** - **4 SRI.BENNY.S., AGED 45 YEARS S/O. P.SIVARAMAN, CHIRAYIL HOUSE, KIZHAKKUM MURIYIL, VARANAD P.O., CHERTHALA -688 539, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, P.V.SIVARAMAN** W.P.(C) Nos.5367 & 6278 of 2021 : 2 : **BY ADVS. JOBY CYRIAC SRI.V.G.ARUN (K/795/2004) SMT.V.JAYA RAGI SRI.NEERAJ NARAYAN SRI.R.HARIKRISHNAN (KAMBISSERIL) SHRI.JAYASANKAR J.S. J.OM PRAKASH JACOB SEBASTIAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.01.2022, ALONG WITH WP(C).6278/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) Nos.5367 & 6278 of 2021 : 3 : ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 12[TH] DAY OF JANUARY 2022/22ND POUSHA, 1943 WP(C) NO. 6278 OF 2021** ## **PETITIONER:** **ASHA ANILKUMAR AGED 44 YEARS W/O. ANILKUMAR, KALATHIL HOUSE, CMC-33, CHERTHALA P.O, ALAPPUZHA.** **BY ADVS. JOBY JACOB PULICKEKUDY SRI.ANIL GEORGE** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001** - **2 THE CIRCLE INSPECTOR OF POLICE, CHERTHALA POLICE STATION, CHERTHALA, ALAPPUZHA DISTRICT-688 582.** - **3 SRI. BENNY S, AGED 45 YEARS S/O. P.V. SIVARAMAN, CHIRAYIL HOUSE, KIZHAKKUM MURIYIL, VARANAD P.O, CHERTHALA-688 539, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER P.V. SIVARAMAN.** **BY ADVS. GOVERNMENT PLEADER SRI.VIPIN NARAYANAN SRI.V.G.ARUN (K/795/2004) SMT.V.JAYA RAGI SRI.R.HARIKRISHNAN (KAMBISSERIL) SRI.NEERAJ NARAYAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.01.2022, ALONG WITH WP(C).5367/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) Nos.5367 & 6278 of 2021 : 4 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` W.P.(C) Nos.5367 and 6278 of 2021 ````````````````````````````````````````````````````````````` _Dated this the 12[th] day of January, 2022_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ W.P.(C) No.5367/2021 has been filed by the petitioner-tenant seeking to set aside Ext.P9 and to command the 2[nd] respondent to reconsider Ext.P9 and thereafter issue licence, without insisting for any consent from the 4[th] respondent-landlord. W.P.(C) No.6278/2021 has been filed by the same petitioner-tenant seeking to command the 2[nd] respondent-Circle Inspector of Police to afford adequate and meaningful police protection to the life of the petitioner as well as for occupying building No.639C without any hindrance from the 3[rd] respondent or his agents. As the issues involved in these writ petitions are interconnected, they are heard together and being disposed of by a common judgment. W.P.(C) Nos.5367 & 6278 of 2021 : 5 : 2. The petitioner submits that she is a lessee in respect of property having 3.66 Ares of land along with building No.639C of Cherthala Municipality. The 4[th] respondent is working abroad and has executed Ext.P1 Power of Attorney in favour of his father. The 4[th] respondent leased out the 3.66 Ares of land to the petitioner and permitted the petitioner to construct a building thereon for running a restaurant. The petitioner obtained Building Permit and constructed a building for the restaurant. The initial rent agreement was for a period of 11 months. When the 11 months period ended, the 4[th] respondent issued a consent letter for starting a restaurant in the building. 3. The petitioner submits that the 4[th] respondent now wants to alienate the property and has required the petitioner to vacate the premises. The petitioner approached the 2[nd] respondent-Secretary to Municipality seeking licence to run a restaurant. The 2[nd] respondent did not accept the licence application and has instead issued a notice dated 05.02.2021, threatening that the restaurant being run by the W.P.(C) Nos.5367 & 6278 of 2021 : 6 : petitioner without licence, will be closed down. The petitioner submitted reply to the said notice. However, the petitioner's application for licence was not favourably considered. The petitioner therefore filed W.P.(C) No.3899/2021. This Court in the said writ petition, directed the 2[nd] respondent to consider and pass orders on the application for licence submitted by the petitioner, in the light of Ext.P2 consent deed. 4. Thereafter, the 2[nd] respondent conducted a hearing. The application for licence was, however, rejected on 25.02.2021 as per Ext.P9. It is aggrieved by Ext.P9 order that the petitioner has filed W.P.(C) No.5367/2021. 5. In W.P.(C) No.6278/2021, the petitioner alleged that on 08.03.2021, when the petitioner reached the restaurant premises, the gate was seen locked and a car was waiting outside. Two persons came out of the car and threatened the petitioner that they will kill the petitioner if the gate is opened. In such circumstances, the petitioner seeks for a direction to the 2[nd] respondent-Circle Inspector to afford W.P.(C) Nos.5367 & 6278 of 2021 : 7 : adequate and meaningful police protection to the life of the petitioner and for occupying building No.639C without any hindrance from the 3[rd] respondent or his agents. 6. The learned counsel for the petitioner submitted that the petitioner has been conducting the hotel business investing huge amounts. The petitioner submitted an application for licence under Section 447 of the Kerala Municipality Act. The petitioner produced Ext.P2 consent letter. The 2[nd] respondent took a stand that Ext.P2 cannot be treated as a consent letter. The learned counsel for the petitioner submitted that the Hon'ble Apex Court in the judgment in _**Sudhakaran v. Corporation of Trivandrum and another** [2016 (3) KHC 803]_ has held that even in the case of application for obtaining licence for the first time, the tenant cannot be deprived of running a lawful business merely because of the landlord withholds the consent. Valid tenancy itself has an implied authority of the landlord for legitimate use of the premises by the tenant. W.P.(C) Nos.5367 & 6278 of 2021 : 8 : 7. The learned counsel for the petitioner asserted that the 2[nd] respondent has acted beyond the powers under Section 447 of the Kerala Municipality Act and has rejected the licence application of the petitioner, illegally. The learned counsel for the petitioner pointed out that the counter affidavit of the respondent alone is sufficient to establish that the petitioner is in lawful possession of the building. As regards W.P.(C) No.6278/2021, the learned counsel for the petitioner asserted that the 2[nd] respondent is duty-bound to give police protection to the petitioner who is a law abiding citizen and occupying the building legally. The petitioner is not a trespasser, pointed out the petitioner. 8. The 4[th] respondent-landlord opposed the writ petition. The 4[th] respondent stated that the 4[th] respondent has not permitted the petitioner to construct a building within his property. He has only permitted the petitioner to use his property by constructing a makeshift shed. The 4[th] respondent has not authorised the petitioner to obtain any building permit. The 4[th] respondent asserted that Ext.P2 is a W.P.(C) Nos.5367 & 6278 of 2021 : 9 : forged document doctored by the petitioner so as to defraud the 4[th] respondent and the authorities. The writ petition has been filed on the strength of a forged document. 9. When the issue involves disputed questions of fact, the mandate of law is to relegate the parties to get adjudicated their dispute before appropriate forum competent to decide the factual disputes. 10. The learned counsel for the respondent argued that the agreement dated 18.01.2020 cannot be treated as a lease deed. At the most, it can be treated as a licence looking at the factual situation of the case. Admittedly, the property was handed over to conduct a hotel for the period prescribed in the agreement. The said agreement is only a licence and the petitioner will not get the status of a tenancy. Therefore, the petitioner cannot claim the benefit of the judgment of the Apex Court reported in _**Sudhakaran**_ (supra). The writ petition is therefore liable to be dismissed, contended the learned counsel for the 4[th] respondent. W.P.(C) Nos.5367 & 6278 of 2021 : 10 : 11. Respondents 1 to 3 (in W.P.(C) No.5367/2021) filed a counter affidavit. The respondents stated that the judgment of the Apex Court will be applicable only in case where there is a valid tenancy. Therefore, even if there is no consent from the owner, if the applicant establishes a valid tenancy, he could not be deprived of a licence to run the establishment. However, in the petitioner's case, he does not possess a valid consent. He has not established a valid tenancy. Hence, even as per the judgment of the Hon'ble Apex Court, the petitioner is not entitled to licence. 12. Heard the learned counsel for the petitioner, the learned Standing Counsel representing the Municipality, the learned counsel for the respondent-landlord and the learned Government Pleader. 13. Ext.R4(a) is the deed dated 18.01.2020 executed between the 4[th] respondent and the petitioner. The said deed is for a period of 11 months and would come to an end on 17. 12. 2020. After the expiry of the said period, according to the petitioner, the 4[th] respondent has issued Ext.P2 consent W.P.(C) Nos.5367 & 6278 of 2021 : 11 : letter dated 20.11.2020. The 4[th] respondent would dispute the authenticity of the said document. Respondents 1 to 3 have taken a stand that the said document cannot be treated as a consent letter as contemplated under Section 447 of the Kerala Municipality Act. 14. The questions arising in these writ petitions are whether the petitioner is a tenant; whether Ext.P2 is a genuine consent letter as contemplated under Section 447 and whether the municipal authorities are justified in rejecting the application for licence submitted by the petitioner. 15. Ext.R4(a), is the deed executed between the petitioner and the 4[th] respondent by which the petitioner has come into possession of the land. Ext.R4(a) deed is not disputed by the 4[th] respondent. The 4[th] respondent has taken a stand that it is not a lease deed but is only a licence. Ext.R4(a) is a document described by the parties as rent agreement. The title indicates tenancy. Ext.R4(a) also states that the land has been taken possession by the petitioner for a period of 11 months. There is nothing in Ext.R4(a) which W.P.(C) Nos.5367 & 6278 of 2021 : 12 : would indicate that exclusive possession of the land is not given to the petitioner. _Prima facie_ , Ext.R4(a) is a deed of tenancy. 16. Section 447 of the Kerala Municipality Act reads as follows: “ **447. Purpose for which places may not be used without licence** — (1) A Municipality may notify by publication in the Gazette or in any other manner as may be prescribed that no place within the Municipal area shall be used for any one or more of the purposes specified in the rules made in this behalf) or for any other trade without licence and except in accordance with the conditions specified therein and where the licence is for running hostels, restaurants, eating houses, coffee houses, Abkari shop, laundries, travel agency or barber saloons, the licence shall always contain and be deemed to contain a condition that admission or service therein shall be available to any member of the public: Provided that no notification under this subsection shall take effect before the expiry of sixty days from the date of its publication. (2) The owner or occupier of every such place shall within thirty days of the publication of the notification apply to the Secretary for a licence for the use of such place for such purpose. (3) The Council shall, within thirty days from the date of receipt of the application, by order and subject to such terms and conditions as it deems fit, either grant a licence for the use of a place for conducting a dangerous or offensive trade or in the interest of the public refuse to grant such licence. (3A) The Secretary shall, within fifteen days from the date of receipt of the application, by order and subject to such terms and condition as he deems W.P.(C) Nos.5367 & 6278 of 2021 : 13 : fit, either grant licence for using a place to conduct a common trade or in the interest of the public refuse to grant such licence. (4) The periods of licence granted under subsection (3) and (3A) or a licence deemed to have been granted under sub-section (6) shall, unless a date is specified therein, expire on completion of three years from the date of its issue. (5) Every application for any licence or permission or for its renewal under this Act or the rules or bye-laws made thereunder, shall be made not less than thirty days and not more than ninety days before the earliest day on which such licence or permission is required or the licence expires. (6) If the order on an application for any licence or permission are not communicated to the applicant within thirty days after the receipt of the application by the Secretary or within such longer period, as may be prescribed in any class of cases the application shall be deemed to have been allowed for the period required in the application, subject to the Act, rules and bye-laws and all conditions which would have been ordinary imposed.” Therefore, a consent letter from the landlord is required to obtain a licence from the Municipality. 17. Ext.P2 is a document dated 20.11.2020 titled as Deed of Consent. Respondents 1 to 3 would contend that Ext.P2 cannot be treated as a consent letter and it can only be treated as a deed for extension of the lease. The 4[th] respondent would, however, submit that Ext.P2 is a W.P.(C) Nos.5367 & 6278 of 2021 : 14 : concocted document and cannot be accepted for the purpose of grant of a licence under Section 447. A reading of Ext.P2 would indicate that what is consented in the said document is continuance of the lease and a consent to repay ₹12 lakhs. Ext.P2, however, would indicate that the land was given to conduct a hotel. 18. This Court finds that even if the argument of the 4[th] respondent that Ext.P2 is a concocted and fabricated document is accepted, still the petitioner will be entitled to get a licence from the Municipality on the basis of the original deed dated 18.01.2020 in view of the judgment of the Apex Court in _**Sudhakaran**_ (supra). The Hon'ble Apex Court in the said judgment has held 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 withholds the consent. The Hon'ble Apex Court held that valid tenancy itself has implied authority of the landlord for legitimate use of the premises by the tenant. W.P.(C) Nos.5367 & 6278 of 2021 : 15 : 19. In the present case, the fact that the petitioner came into possession of the land and constructed a building on the basis of a deed executed on 18.01.2020 is not in dispute. The 4[th] respondent has a case that the said document is not a lease/tenancy. It is for the 4[th] respondent to approach the competent court and establish his right over the property as a licensor. A plain reading of Ext.P2 would show that the 4[th] respondent has given the property to the petitioner for the running of a hotel. 20. When the 4[th] respondent has given property to the petitioner for the specific purpose of running a hotel, in view of the judgment of the Hon'ble Apex Court in _**Sudhakaran**_ (supra), respondents 1 to 3 cannot deny licence to the petitioner, for the reason that the 4[th] respondent has not given a consent letter. For the aforesaid reason, the petitioner is entitled to succeed. Consequently, W.P.(C) No.5367/2021 is allowed to the extent of setting aside Ext.P9 and directing the 2[nd] respondent to consider the application for licence submitted W.P.(C) Nos.5367 & 6278 of 2021 : 16 : by the petitioner in the light of the judgment of the Hon'ble Apex Court in _**Sudhakaran**_ (supra), without insisting for any consent from the 4[th] respondent. W.P.(C) No.6278/2021 is disposed of directing the 2[nd] respondent to afford adequate police protection to the life of the petitioner. Needless to say, if there is any attempt to forcefully evict the petitioner, the 2[nd] respondent shall take appropriate action in accordance with law. Sd/- **N. NAGARESH, JUDGE** aks/10.01.2022 W.P.(C) Nos.5367 & 6278 of 2021 : 17 : ## **APPENDIX OF WP(C) 5367/2021** ## **PETITIONER'S EXHIBITS** **EXHIBIT P1 TRUE PHOTOCOPY OF POWER OF ATTORNEY DATED 22.01.2020 EXHIBIT P2 TRUE PHOTOCOPY OF CONSENT LETTER DATED 20.11.2020 EXHIBIT P3 TRUE PHOTOCOPY OF LICENSE APPLICATION DATED 08.02.2021 EXHIBIT P4 TRUE PHOTOCOPY OF POSTAL RECEIPT DATED 09.02.2021 EXHIBIT P5 TRUE PHOTOCOPY OF NOTICE DATED 05.02.2021 ISSUED BY THE 2ND RESPONDENT EXHIBIT P6 TRUE PHOTOCOPY OF REPLY DATED 09.02.2021 SUBMITTED BY THE PETITIONER EXHIBIT P7 TRUE PHOTOCOPY OF JUDGMENT DATED 15.02.2021 IN WPC NO.3899/21 EXHIBIT P8 TRUE PHOTOCOPY OF THE ARGUMENT NOTE DATED 17.02.21 ALONG WITH THE JUDGMENTS OF THE HON'BLE SUPREME COURT AND THIS HON'BLE COURT EXHIBIT P9 TRUE PHOTOCOPY OF REJECTION ORDER DATED 25.02.2021 PASSED BY THE 2ND RESPONDENT Exhibit P10 TRUE PHOTOCOPY OF REGISTRATION CERTIFICATE ISSUED BY THE MINISTRY OF MICRO SMALL AND MEDIUM ENTERPRISES DATED 5/3/2021 Exhibit P11 TRUE PHOTOCOPY OF ORDER ISSUED BY THE VACATION COURT (DISTRICT COURT) ALAPPUZHA DATED 29/4/2021 IN OS.246/2021 Exhibit P12 TRUE PHOTOCOPY OF PAGES 4 TO 18 OF THE CHITT BOOK** W.P.(C) Nos.5367 & 6278 of 2021 : 18 : ## **RESPONDENTS' EXHIBITS** **EXHIBIT R4(a) THE TRUE COPY OF AGREEMENT 18.01.2020. EXHIBIT R4(b) THE TRUE COPY OF THE FIR IN CRIME NO.1096/2019 OF ERNAKULAM CENTRAL POLICE STATION.** W.P.(C) Nos.5367 & 6278 of 2021 : 19 : ## **APPENDIX OF WP(C) 6278/2021** ## **PETITIONER'S EXHIBITS** **EXHIBIT P1 TRUE PHOTOCOPY OF POWER OF ATTORNEY EXECUTED BY THE 3RD RESPONDENT IN FAVOUR OF HIS FATHER DATED 22.01.2020. EXHIBIT P2 TRUE COPY OF CONSENT LETTER DATED 20.11.2020 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXHIBIT P3 TRUE COPY OF JUDGMENT DATED 15.02.2021 IN W.P.C NO. 3899/2021. EXHIBIT P4 TRUE COPY OF LAWYER NOTICE DATED 04.03.2021 SENT BY THE 3RD RESPONDENT. EXHIBIT P5 TRUE COPY OF RECEIPT DATED 05.03.2021 ISSUED BY THE COMMISSIONERATE OF FOOD SAFETY, GOVERNMENT OF KERALA. EXHIBIT P6 TRUE PHOTOGRAPH OF THE LOCKED GATE BY THE 3RD RESPONDENT. EXHIBIT P7 TRUE PHOTOCOPY OF THE COMPLAINT DATED 08.03.2021 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P8 COPY OF CAVEAT OP SERVED TO THE PETITIONER EXHIBIT P9 COPY OF PHOTOGRAPH SHOWING THE IRON GATE LOCKED AND WELDED EXHIBIT P9(a) COPY OF PHOTOGRAPH SHOWING THE IRON GATE LOCKED AND WELDED** **RESPONDENT EXHIBITS** **EXHIBIT R3(a) THE TRUE COPY OF AGREEMENT 18.01.2020. EXHIBIT R3(b) THE TRUE COPY OF THE FIR IN CRIME NO.1096/2019 OF ERNAKULAM CENTRAL POLICE STATION. EXHIBIT R3(c) THE TRUE COPY OF THE ORDER DATED 26.11.2019 IN CRL MC NO. 8007/2019 OF THE HON'BLE HIGH COURT OF KERALA. EXHIBIT R3(d) COPY OF AFFIDAVIT DT 29.3.2021 AFFIRMED BY FATHER OF 3RD RESPONDENT.**