Binu v. Kollam Municipal Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 24TH DAY OF JUNE 2019 / 3RD ASHADHA, 1941** ## **WP(C).No.10276 of 2019** ## **PETITIONER:** **BINU, AGED 43 YEARS,S/O.VELAYUDHAN PILLAI, BINU NIVAS, EDAKULANGARA, THODIYOOR P.O., THODIYOOR VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM- 690523.** ## **BY ADVS. SRI.K.S.HARIHARAPUTHRAN SMT.BHANU THILAK** ## **RESPONDENTS:** **1 KOLLAM MUNCIPAL CORPORATION REPRESENTED BY ITS SECRETARY, KOLLAM-691001. 2 RAMACHANDRAN PILLAI, AGED 76 YEARS,S/O.GOVINDAN PILLAI, KAVINTE VADAKKATHIL VEEDU, VADAKKUMMURI PADINJARU, KUTHIRAPANTHI P.O., THAZHAVA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM-690523.** **BY ADVS. SRI.M.K.CHANDRA MOHAN DAS,STANDING COUNSEL, KOLLAM MUNICIPAL CORPORATION SRI.ARUN BABU** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.10276 of 2019** -2- ## **JUDGMENT** The petitioner, who is conducting business in shop room No.MC XVII/222 of Vadakkumbhagam Cherry of Kollam East Village, which is owned by the 2[nd] respondent, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P9 notice dated 25.03.2019 issued by the 1[st] respondent and to consider Ext.P7 application for renewal of licence accordingly. 2. The grievance of the petitioner in this writ petition is that, vide Ext.P9 notice, the 1[st] respondent insisted production of No Objection Certificate from the 2[nd] respondent landlord for consideration of Ext.P7 application for renewal of licence. 3. On 02.04.2019, when this writ petition came up for admission, the learned Standing Counsel took notice for the 1[st] respondent. Urgent notice on admission by speed post was ordered to the 2[nd] respondent, returnable within ten days. The learned Standing Counsel was directed to get **WP(C).No.10276 of 2019** -3- instructions. 4. A statement has been filed by the 1[st] respondent, opposing the reliefs sought for in this writ petition. The 2[nd] respondent has filed a counter affidavit, pointing out the pendency of O.S.No.97 of 2018 before the Munsiff's Court, Kollam. 5. Heard the learned counsel for the petitioner, the learned Standing Counsel for the 1[st] respondent Corporation and also the learned counsel for the 2[nd] respondent. 6. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P9 notice dated 25.03.2019 issued by the 1[st] respondent, whereby the petitioner has been asked to produce No Objection Certificate from the 2[nd] respondent landlord for consideration of Ext.P7 application for renewal of licence. 7. 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 **WP(C).No.10276 of 2019** -4- 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 (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 **WP(C).No.10276 of 2019** -5- 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 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]** . 8. 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 **WP(C).No.10276 of 2019** -6- 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. 9. 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.” 10. In view of the law laid down in the decisions referred to _supra_ , the application for renewal of licence **WP(C).No.10276 of 2019** -7- cannot be kept pending by the local authority, insisting production of No Objection Certificate. In the result, Ext.P9 notice, to the extent of directing the petitioner to produce No Objection Certificate from the 2[nd] respondent landlord for consideration of Ext.P7 application for renewal of licence, is set aside and the 1[st] respondent is directed to consider Ext.P7 application, with notice to the petitioner and also to the 2[nd] respondent and take an appropriate decision, 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** bpr **WP(C).No.10276 of 2019** -8- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE CONSENT LETTER DATED 23.03.2016 SIGNED BY THE 2ND RESPONDENT.** - **EXHIBIT P2 TRUE COPY OF THE PROFESSION TAX RECEIPTS DATED 01.02.2018.** - **EXHIBIT P2(A) TRUE COPY OF THE PROFESSION TAX RECEIPTS DATED 28.02.2019.** - **EXHIBIT P3 TRUE COPY OF THE RENEWED LICENSE DATED 06.02.2018.** - **EXHIBIT P4 TRUE COPY OF THE PLAINT IN O.S.NO.97/2018 DATED 02.02.2018 OF O.S.NO.97/2018 BY THE LEARNED MUNSIFF COURT, KOLLAM.** - **EXHIBIT P5 TRUE COPY OF THE ORDER DATED 08.02.2018 IN I.A.NO.613/2018 OF O.S.NO.97/2018 BY THE LEARNED PRINCIPAL MUNSIFF COURT, KOLLAM.** - **EXHIBIT P6 TRUE COPY OF THE NOTICE DATED 22.03.2018 SEND BY THE 2ND RESPONDENT THROUGH HIS COUNSEL.** - **EXHIBIT P7 TRUE COPY OF THE APPLICATION BEFORE THE 1ST RESPONDENT FOR RENEWING THE LICENCE FOR THE YEAR 2019-2020 DATED 02.03.2019.** - **EXHIBIT P8 TRUE COPY OF THE LETTER DATED 08.03.2019 SEND BY THE PETITIONER THROUGH HIS COUNSEL TO THE 2ND RESPONDENT.** - **EXHIBIT P9 TRUE COPY OF THE NOTICE DATED 25.03.2019 ISSUED BY THE 1ST RESPONDENT.** - **RESPONDENTS' EXHIBITS:** - **EXHIBIT R2(A)** **THE TRUE COPY OF THE OBJECTION DATED 19/03/2018 IN O.S.97/2018 BEFORE THE MUNSIFF COURT,KOLLAM.**