Babu Haji v. The Vatakara Municipality and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 05TH DAY OF AUGUST 2019 / 14TH SRAVANA, 1941** ## **WP(C).No.14241 OF 2019(E)** ## **PETITIONER/S:** **BABU HAJI, AGED 70 YEARS S/O. ABOOTI, SUHARA COTTAGE, NEAR GOVERNMENT HOSPITAL, VADAKARA, PIN-673 101** **BY ADVS. SRI.B.KRISHNAN SRI.R.PARTHASARATHY** ## **RESPONDENT/S:** |**1**|**THE VATAKARA MUNICIPALITY**| |---|---| ||**REPRESENTED BY SECRETARY, VATAKARA, PIN-673**| ||**101**| |**2**|**THE SECRETARY,**| ||**VATAKARA MUNICIPALITY, VATAKARA, PIN-673 101**| |**3**|**MANAPRATH ABDULLA,**| ||**CUSTOMS ROAD, VADAKARA, PIN-673 103**| |**ADDL.**|**FAIZ MANAPRATH,AGED 31 YEARS**| |**R4.**|**S/O.KHALID, DARUL SAFA, SAND BANKS ROAD,**| ||**VATAKARA - 673103.**| ||**ADDL.R4 IS IMPLEADED AS PER ORDER DATED**| ||**01/07/2019 IN IA NO.1/2019.**| ||**BY ADVS.**| ||**SRI.T.NAVEEN, SC, VATAKARA MUNICIPALITY**| ||**SRI.B.V.JOY SANKER**| ||**SMT.K.REEHA KHADER**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- W.P.(C). No. 14241 of 2019 ## **JUDGMENT** The petitioner is stated to be the tenant in occupation of a shop room bearing No.20/477 of Vatakara Municipality, along with Haris and Mammu, on the strength of Ext.P1 registered lease deed bearing No.1702/1989 dated 04.09.1989 executed by one Manaprath Abdul Rahiman, who is stated to be the predecessor-in-interest of the 3[rd] respondent. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P15 communication dated 08.03.2019, issued by the Health Supervisor of the 1[st] respondent Municipality, whereby he has been informed that the 3[rd] respondent has no authority to give consent letter for grant of trade licence in the building in question, as the owner of the property, and in such circumstances, unless and until the petitioner produces a consent letter in terms of Ext.P13 judgment of the Subordinate Judge's Court, Vatakara, dated 07.12.2012, in O.S.No.5 of 2008, the application for trade licence cannot be considered. The petitioner has also sought -3- W.P.(C). No. 14241 of 2019 for a writ of mandamus commanding the 2[nd] respondent to issue licence for running the business of footwear, bags and umbrellas in shop No.20/477 of Vatakara Municipality, without insisting for the consent from the landlord. 2. On 23.05.2019, when this writ petition came up for admission, the learned Standing Counsel for Municipality took notice on admission for respondents 1 and 2. Urgent notice on admission by special messenger was ordered to the 3[rd] respondent. The learned Standing Counsel was directed to get instructions. 3. By the order dated 01.07.2019 in I.A.No.1 of 2019, one Faiz Manaprath got impleaded as additional 4[th] respondent. 4. Counter affidavits have been filed by respondents 1, 2 and also by additional 4[th] respondent, opposing the reliefs sought for in this writ petition. The 3[rd] respondent has filed a counter affidavit supporting the case of the petitioner. 5. The issue that arises for consideration in this writ petition is as to whether any interference is warranted on -4- W.P.(C). No. 14241 of 2019 Ext.P15 communication dated 08.03.2019 issued by the Health Supervisor of the 1[st] respondent Municipality, whereby the petitioner is directed to produce consent letter of the landlord, in terms of Ext.P13 judgment of the Subordinate Judge's Court in O.S.No.5 of 2008, in order to consider the application for trade licence. The petitioner would contend that consent by the 3[rd] respondent in his status as Karanavar of the Mappilla Marumakkathayam Tharavadu is absolutely valid in spite of Ext.P13 preliminary judgment for partition. 6. In **Marimuthu v. Director General of Police [1999 (3) KLT 662]** , a Division Bench of this Court held that, a statutory tenant under the Kerala Buildings (Lease and Rent Control) Act can be evicted only as per the provisions of the said Act, on the grounds enumerated therein. Since the possession of the tenant is lawful, the landlord is not entitled to withhold his consent for the conduct of the business for which the premises were given on rent. Paragraph 16 of the said judgment reads thus; “16. A statutory tenant under the Kerala Buildings -5- W.P.(C). No. 14241 of 2019 (Lease and Rent Control) Act can be evicted only as per the provisions of the said Act, on the grounds enumerated therein. Since the possession of the tenant is lawful, the landlord is not entitled to withhold his consent for the conduct of the business for which the premises were given on rent. In the instant case, we are satisfied that the landlord is purposefully and with malafide intention withholding consent inspite of the directions from this court. Under such circumstances, the Corporation also cannot insist upon production of written consent from the landlord for the purpose of issuance of licence for the conduct of business in the premises in question. For carrying on business in readymade dresses a licence issued under Sec.492 of the Kerala Municipality Act is necessary. As on date, the petitioner is not having any licence to carry on such business. A person in occupation can be allowed to carry on a trade or business which requires a licence, only after obtaining such licence. In view of the facts and circumstances of the case as above, we direct the Corporation of Thiruvananthapuram to consider Ext.P7 application for licence without insisting upon the production of a written consent of the owner of the premises and pass appropriate orders after giving an opportunity to the petitioners or their representative or their advocate, within two weeks from today. The petitioners are at liberty to file any -6- W.P.(C). No. 14241 of 2019 further documents, if need be, before the Corporation authorities. The Corporation shall pass a reasoned order after hearing the necessary parties and communicate the same to the petitioners within two weeks from today. We make it clear that till such time the petitioners shall not conduct the textile business in the premises in question. Ext.P8 order of the Corporation of Thiruvananthapuram is set aside and Ext.P7 is restored to file for fresh consideration as directed above.” The judgment of this Court in **Marimuthu's case supra** was affirmed by the Apex Court in **Sudhakaran v. Corporation of Trivandrum [2016 (3) KLT 247]** . 7. In **Sudhakaran's case (** _**supra**_ **)** , the Apex Court held that consent of the landlord is not required by the tenant for renewal of municipal license to run a shop. Even in the case of application for obtaining license 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 as per the tenancy agreement. 8. The law laid down by the Apex Court in the -7- W.P.(C). No. 14241 of 2019 aforesaid decision has been followed by a Division Bench of this Court in **Babu v. Vijayan [2019 (1) KLT 684]** . Paragraph 8 of the said decision reads thus; “8. On the above legal issue, we may benefit by referring to the pronouncement in **Sudhakaran v. Corporation of Trivandrum and another** reported in **[(2016) 14 SCC 263]** where the Supreme Court on the issue of the renewal of a trade licence, stated that a tenant cannot be deprived of running a lawful business merely because the landlord withheld his consent, and further that, a valid tenancy itself has implied authority of the landlord for legitimate use of the premises by the tenant.” 9. In the instant case, on the strength of Ext.P1 registered lease deed dated 04.09.1989, the petitioner along with Haris and Mammu were conducting a hardware shop in the shop room in question. Now the petitioner has moved Ext.P10 application for trade licence for conducting the business of footwear, bags and umbrellas in the said shop room referred to in Ext.P15 communication dated 08.03.2019 issued by the Health Supervisor of the 1[st] respondent Municipality. -8- W.P.(C). No. 14241 of 2019 10. The learned counsel for the petitioner would contend that the 3[rd] respondent in this writ petition is the person, who can issue consent letter for consideration of Ext.P10 application for trade licence, in respect of shop room No.20/477 of Vatakara Municipality. _Per contra_ , the learned counsel for the additional 4[th] respondent would contend that the 3[rd] respondent has no authority to give consent letter. The learned Standing Counsel for respondents 2 and 3 would submit that by Ext.P15, the Municipality has directed the petitioner to submit the consent letter of a person who is competent to issue the same, in terms of Ext.P13 judgment of the Sub Court, Vatakara in O.S.No.5 of 2008. 11. Having considered the submissions made by the learned counsel on both sides, this Court finds that the application made by the petitioner for trade licence in respect of the shop room in question requires reconsideration at the hands of the 2[nd] respondent, who is the Secretary of the 1[st] respondent Municipality, taking note of the law laid down in the decisions referred to supra, with notice to the petitioner, -9- ## W.P.(C). No. 14241 of 2019 the 3[rd] respondent and also the additional 4[th] respondent. It will be open to the petitioner to submit a fresh application for trade licence, since the period covered by Ext.P10 application is already over. A decision in this regard shall be taken, in accordance with law, as expeditiously as possible, at any rate within a period of three weeks from the date of receipt of a certified copy of this judgment. It is made clear that this Court has not expressed anything on the merits of the rival contentions, and it is for the 2[nd] respondent to take appropriate decision, strictly in accordance with law. ## **Sd/-** **ANIL K.NARENDRAN JUDGE** das -10- W.P.(C). No. 14241 of 2019 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LEASE DEED DATED 4.9.1989.** **EXHIBIT P2 TRUE COPY OF THE RENT RECEIPT ISSUED BY ABDULLAH, WHO IS ONE OF THE SUCCESSORS IN INTEREST OF THE SHOP ROOM DATED 4.7.2017.** **EXHIBIT P3 TRUE COPY OF RECEIPT FOR LICENSE FEE PAID BY SHUKOOR ONE OF THE PARTNERS FOR THE YEAR 2015-2016 DATED 15.2.2015. EXHIBIT P4 TRUE COPY OF THE PROFESSIONAL TAX PAID BY THE PARTNER SHUKOOR FOR THE PERIOD 2017-2018** **EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS H221205/17 DATED 4.11.2017 ISSUED BY THE HEALTH SUPERVISOR, VATAKARA MUNICIPALITY.** **EXHIBIT P6 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT, DATED 27.6.2018 IN WPC 36754/17. EXHIBIT P7 TRUE COPY OF THE ORDER DATED 15.11.2017 DISMISSING THE WRIT PETITION BASED ON THE SUBMISSIONS OF THE WRIT PETITIONER.** **EXHIBIT P8 TRUE COPY OF THE RECEIPT BY THE 3RD RESPONDENT FOR PAYMENT OF RENT FROM 4.1.2018 TO 3.3.2018** **EXHIBIT P9 TRUE COPY OF THE RENT RECEIPT FOR RS. 12,000/- A MONTH ISSUED BY THE 3RD RESPONDENT FOR THE PERIOD 4.1.2019 TO 3.2.2019.** -11- W.P.(C). No. 14241 of 2019 - **EXHIBIT P10** **TRUE COPY OF THE APPLICATION DATED 21.3.2018 FOR LICENSE.** - **EXHIBIT P11** - **TRUE COPY OF THE ACKNOWLEDGEMENT BY 2ND RESPONDENT DATED 22.5.2018.** - **EXHIBIT P12** - **TRUE COPY OF THE CONSENT IN WRITING BY THE 3RD RESPONDENT DATED 3.9.2018.** - **EXHIBIT P13 TRUE COPY OF THE JUDGMENT OF THE SUBORDINATE JUDGE, VATAKARA DATED 7.12.2012.** - **EXHIBIT P14 TRUE COPY OF THE SCHEDULE OF THE PROPERTY IN THE DECREE OF WHICH THE SHOP HELD BY THE PETITIONER IS ITEM NO. 7.** - **EXHIBIT P15 TRUE COPY OF THE LETTER DATED 8.3.2019 ISSUED BY THE HEALTH SUPERVISOR, VATAKARA MUNICIPALITY.** - **EXHIBIT P16 TRUE COPY OF THE DISSOLUTION OF PARTNERSHIP DEED JUNE, 2017.** ## **RESPONDENT'S/S EXHIBITS:** - **EXHIBIT R1(A):** - **TRUE COPY OF THE RECEIPT DATED 22/02/2017 ISSUED TO SRI.ABDUL SHUKOOR.** - **EXHIBIT R1(B): TRUE COPY OF THE REQUEST DATED 25/09/2017 SUBMITTED BY SRI.ABDUL SHUKOOR.** - **EXHIBIT R1(C):** - **TRUE COPY OF THE COMMUNICATION DATED 11/03/2019 ISSUED BY THE MUNICIPALITY TO THE PETITIONER**