Benny K.I. v. Kochi Municipal Corporation and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 04TH DAY OF APRIL 2019 / 14TH CHAITHRA, 1941 WP(C).No. 6304 of 2019** ## **PETITIONER :** **BENNY K.I., AGED 57 YEARS S/O ITTOOP, KAKKASSERY HOUSE, PENGAMUKKU, KUNNAMKULAM, TRICHUR DISTRICT-680544.** ## **BY ADV. SRI.CIBI THOMAS** ## **RESPONDENTS:** |**1**|**KOCHI MUNICIPAL CORPORATION,**| |---|---| ||**REPRESENTED BY ITS CHAIRMAN, CORPORATION OFFICE,**| ||**KOCHI-680011.**| |**2**|**THE HEALTH OFFICER,**| ||**KOCHI MUNICIPAL CORPORATION, CORPORATION OFFICE,**| ||**PB.1016, KOCHI-680011.**| |**3**|**ANTONY V.R.,**| ||**S/O RAYAPPAN, 74/534, VALIYAPARAMBIL HOUSE, D.S.**| ||**NARAYANAN ROAD, PACHALAM P.O., KOCHI-682012.**| ||**BY ADV. SMT.P.Y.SHEHEERA, SC, KOCHI MUNICIPAL**| ||**CORPORATION**| ||**BY SRI.K.L.JOSEPH, SC**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 6304 of 2019** **2** ## **JUDGMENT** The petitioner, who is stated to be a tenant in occupation of shop Room No.74/533-B in Kochi Municipal Corporation, owned by the 3[rd ] respondent, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P6 communication dated 20.02.2019 issued by the 1[st] respondent. The petitioner has also sought for a writ of mandamus commanding the 1[st] respondent to accept Ext.P5 application dated 19.02.2019 and pass consequential orders to renew his licence, forthwith. 2. On 01.03.2019, when this writ petition came up for admission, this Court admitted the matter on file. The learned Standing Counsel for Kochi Municipal Corporation took notice for respondents 1 and 2. Urgent notice by speed post was issued to the 3[rd] respondent, returnable within two weeks. 3. Heard the learned counsel for the petitioner and also the learned Standing Counsel for Kochi Municipal **WP(C).No. 6304 of 2019** **3** Corporation, representing respondents 1 and 2. Despite service of notice, none appears for the 3[rd] respondent. 4. The sole issue that arises for consideration in this writ petition is as to whether Ext.P6 communication dated 20.02.2019 issued by the 1[st] respondent, wherein it has been stated that the petitioner has to obtain consent letter from the 3[rd] respondent landlord for consideration of the application made by the petitioner for D&O licence, warrants interference. 5. 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; **WP(C).No. 6304 of 2019** **4** “16. 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. 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 **WP(C).No. 6304 of 2019** **5** 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]** . 6. 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 **WP(C).No. 6304 of 2019** **6** agreement. 7. The law laid down by the Apex Court in the 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.” 8. Viewed in the light of the law laid down in the decisions referred to _surpa_ , conclusion is irresistible that the reasoning of the 1[st] respondent in Ext.P6 that the petitioner has to obtain the consent of the landlord for consideration of Ext.P5 application for D&O licence, cannot be sustained. **WP(C).No. 6304 of 2019** **7** 9. In such circumstances, Ext.P6 communication will stand set aside and the 1[st] respondent is directed to reconsider Ext.P5 application made by the petitioner for D&O licence, in respect of the shop room owned by the 3[rd] respondent, with notice to the petitioner and also to the 3[rd] respondent, taking note of the law laid down in the decisions referred to _supra_ . A decision in this regard shall be taken, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment. **Sd/-** **ANIL K.NARENDRAN, JUDGE** AV/6/4 **WP(C).No. 6304 of 2019** **8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LEASE AGREEMENT ENTERED INTO BETWEEN THE PETITIONER AND THE 3RD RESPONDENT DATED 17.5.2017** **EXHIBIT P2 TRUE COPY OF THE RENT RECEIPT DATED 5.12.2018 EVIDENCING PAYMENT OF RENT FOR THE MONTH OF NOVEMBER 2018 EXHIBIT P3 TRUE COPY OF THE RELEVANT PAGES OF THE PASS BOOK OF THE PETITIONER EXHIBIT P4 TRUE COPY OF THE LICENCE ISSUED BY THE 1ST RESPONDENT DATED 28.5.2018 EXHIBIT P5 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER FOR RENEWAL OF LICENCE DATED 19.2.2019 EXHIBIT P6 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 1ST RESPONDENT DATED 20.2.2019**