C.M. Jumailath v. Kozhikode Corporation and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 24TH DAY OF OCTOBER 2017/2ND KARTHIKA, 1939** ## **WP(C).No. 30498 of 2017 (J)** **----------------------------** ## **PETITIONER :** **-----------------------** **C.M.JUMAILATH, AGED 37 YEARS, W/O.P.ABDUL NAZAR, PARAPPURATH HOUSE, CHATHAMANGALAM, KOZHIKODE.** ## **BY ADVS.SRI.R.SUDHISH SMT.M.MANJU** ## **RESPONDENT(S):** **----------------------------** **1. KOZHIKODE CORPORATION, REPRESENTED BY ITS SECRETARY, KOZHIKODE-673 001.** ## **2. JAFAR A.P.,** **AGED 46 YEARS, S/O.A.P.HAMSA, SAFIYA MANZIL, CHERUVANNUR, KOZHIKODE-673 655.** **3. A.P.HAIRUNNISA, AGED 48 YEARS, D/O.A.P.HAMSA, SAFIYA MANZIL, CHERUVANNUR, KOZHIKODE-673 655.** **R1 SRI.K.D.BABU,SC, ADVS. SMT.BINDUMOL JOSEPH** **SRI.B.S.SYAMANTHAK R2 BY ADVS. SRI.C.A.MAJEED SRI.P.FAIZAL SMT.MOLTY MAJEED SRI.K.J.SHARATH KUMAR R3 BY ADV. SRI.NIRMAL. S** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 30498 of 2017 (J)** ## **----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **----------------------------------------** - **EXHIBIT P1 COPY OF THE LICENSE AGREEMENT DULY EXECUTED BY THE 2ND RESPONDENT JAFAR WITH RESPECT TO A SHOP ROOM NO.18/88 OF KOZHIKODE CORPORATION.** **EXHIBIT P2 COPY OF THE RECEIPT OF FEES FOR RENEWAL OF LICENSE DATED 23.2.2007. EXHIBIT P3 COPY OF THE DRUG LICENSE ISSUED BY THE LICENSING AUTHORITY, DRUG CONTROL DEPARTMENT DATED 28.7.2015. EXHIBIT P4 COPY OF THE LETTER SERVED ON BY THE PETITIONER BY THE HEALTH OFFICER ON 26.8.2017.** **EXHIBIT P5 COPY OF THE LETTER OF THE HEALTH OFFICER OF THE 1ST RESPONDENT DATED 14.9.2017 SIGNED ON 15.9.2017.** **EXHIBIT P6 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 16.9.2017.** **EXHIBIT P7 COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 20.9.2017.** ## **RESPONDENT(S)' EXHIBITS** **-----------------------------------------** **EXHIBIT R1(A) COPY OF THE NOTICE ISSUED BY THE HEALTH OFFICER, KOZHIKODE CORPORATION DATED 31/05/2017** ## **/TRUE COPY/** ## **P.A.TO JUDGE** **sts** ## **P.B.SURESH KUMAR, J** **- - - - - - - - - - - - - - - - - - -** W.P.(C) No.30498 of 2017 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 24[th] day of October, 2017 ## **JUDGMENT** Petitioner is occupying a premises owned by respondents 2, 3 and others on the strength of Ext.P1 licence deed from 20.05.2005 onwards. Ext.P1 licence deed has been executed by the second respondent on his behalf and also on behalf of the remaining owners of the property on the strength of a power of attorney claimed to have been executed by them in his favour. The premises is situated within the limits of the first respondent Corporation (the Corporation). On the basis of Ext.P1 licence deed, the petitioner had also obtained a licence from the Corporation for conducting a medical shop in the premises. The licence obtained by the petitioner from the Corporation was, however, not renewed by her after 2009. Nevertheless, the petitioner was running the medical shop in the premises. ## **W.P. (C) No.30498 of 2017** -2- While so, on 31.05.2017, the Corporation issued Ext.R1(a) notice directing the petitioner to show cause why she shall not be prosecuted for conducting business in the premises without obtaining licence from the Corporation. When petitioner received Ext.R1(a) notice, she preferred an application on 22.06.2017 for renewal of the licence issued to her. The said application was, however, not considered by the Corporation for the reason that the petitioner has not produced consent letter of the owners of the premises as provided for under sub-Section (3) of Section 492 of the Kerala Municipality Act, 1994 (the Act). Ext.P4 is the notice issued to the petitioner by the Corporation in this regard. As per Ext.P4 notice, the petitioner was informed by the Corporation that if she does not produce the consent letter of the owners of the property within five days, the premises of the petitioner will be closed down. It is stated by the petitioner that on receipt of Ext.P4 notice, she produced the consent letter of the second respondent. In the meanwhile, ## **W.P. (C) No.30498 of 2017** -3- the third respondent, who is one of the owners of the property, brought to the notice of the Corporation that her mother who is also one of the owners of the property died on 07.11.2016. In the circumstances, the Corporation issued Ext.P5 communication to the petitioner stating that the consent letter given by the second respondent on the strength of the power of attorney executed by his deceased mother cannot be acted upon. It is stated by the petitioner that thereupon, the Corporation had closed down the premises of the petitioner on 20.09.2017. Ext.P7 is the mahazar prepared in this connection by the Corporation. Exts.P4 and P5 notices issued by the Corporation and Ext.P7 mahazar are under challenge in the writ petition. 2. A counter affidavit has been filed by the Corporation stating, among others, that in so far as the petitioner has not renewed the licence after 2009, the application preferred by the petitioner as referred to in Ext.P4 notice can be treated only as an application for fresh ## **W.P. (C) No.30498 of 2017** -4- licence and in the light of the provision contained in subSection (3) of Section 492 of the Act, the petitioner is not entitled to the licence applied for without production of the consent letters of the owners of the property. 3. A counter affidavit has been filed by the third respondent also in the writ petition. The stand taken by the third respondent in the counter affidavit is that she has not executed any power of attorney in favour of the second respondent to execute Ext.P1 licence deed in favour of the petitioner. 4. Heard the learned counsel for the petitioner, the learned Standing Counsel for the Corporation as also the learned counsel for respondents 2 and 3. 5. As noted above, the fact that the petitioner has been in occupation of the premises referred to in the writ petition on the strength of Ext.P1 licence deed ever since 20.05.2005 is not in dispute. Sub-section (3) of Section 492 of the Act provides for the production of the ## **W.P. (C) No.30498 of 2017** -5- written consent of the owner of the premises where the person intending to obtain a licence for the first time is a person other than the owner. The fact that licence was obtained by the petitioner for running the medical shop in the premises in the year 2005 with the consent of the owners is not in dispute. True, the petitioner has not renewed the licence obtained by her after 2009. The question, therefore, is whether, merely for the reason that the licence was not renewed by the petitioner for some time in between, the Corporation is justified in insisting production of the consent letter of the owners of the premises by treating the application preferred by the petitioner for renewal of the licence as a fresh application for licence. 6. Sub-Section (3) of Section 492 of the Act reads thus: “Where any person intending to obtain a licence or permission for the first time and where the applicant is a person other than the owner of the premises in question, he shall, along with the application -6- ## **W.P. (C) No.30498 of 2017** produce the written consent of the owner of the premises and the period of the licence shall not exceed the period, if any, specified in the consent.” In _**Sudhakaran v. Corporation of Trivandrum and Another**_ (2016 (3) KHC 803), the Apex Court interpreted sub-Section (3) of Section 492 of the Act thus: “After due consideration of the issues involved, we find merit in the submission made on behalf of the appellant. The statutory provision already quoted above shows that the requirement of consent of landlord is applicable only when a person intends to obtain a licence for the first time. Renewal or subsequent application for obtaining licence on expiry of the period of the existing licence, during the currency of the tenancy, is not applicable for obtaining licence. 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 so far as the petitioner had secured licence to conduct medical shop initially, the application of the petitioner referred to in Ext.P4 can only be an application preferred for licence on the expiry of the period of existing licence. If that be so, in the light of the decision of the Apex Court referred to above, the Corporation is not justified in insisting ## **W.P. (C) No.30498 of 2017** -7- production of the consent letter of the owners of the premises. 7. The contention of the third respondent is that she has not executed any power of attorney in favour of the second respondent. True, if the third respondent had not executed the power of attorney on the strength of which Ext.P1 licence deed is executed, it is possible for the third respondent to contend that she being one of the owners of the property, licence cannot be issued to the petitioner without her consent letter in the light of the provision contained in sub-Section (3) of Section of 492 of the Act. But, as noted above, Ext.P1 is a document executed in the year 2005. The power of attorney relied on therein is one executed prior to Ext.P1 licence deed. Admittedly, on the strength of Ext.P1 licence deed, the petitioner obtained licence in the year 2005 and she has been conducting business in the premises for the last almost 12 years. There is no satisfactory explanation in the counter affidavit filed by ## **W.P. (C) No.30498 of 2017** -8- the third respondent as to why she did not take up the issue before the Corporation during the last 12 years. Except the bald denial that she has not executed the power of attorney, there is no serious effort also on the part of the third respondent to establish that the power of attorney referred to above is a forged one. In the circumstances, I am of the view that accepting the case of the third respondent that the power of attorney referred to above is a forged document merely on the assertion of the third respondent at this point of time would cause irreparable injury to the petitioner, if it is found ultimately by a court of competent jurisdiction that the said stand taken by the third respondent is incorrect. In the result, the writ petition is allowed and the first respondent Corporation is directed to grant the licence sought for by the petitioner within two weeks from the date of production of a copy of this judgment. Needless to say that in the meanwhile, the petitioner shall be permitted to run business in the premises. It is made clear that this ## **W.P. (C) No.30498 of 2017** -9- judgment will not preclude the third respondent from approaching a competent civil court for establishing that the power of attorney, on the basis of which Ext.P1 licence deed is executed, is a forged one and from approaching the Corporation for cancelling the licence granted to the petitioner, on the basis of a decree obtained in that regard from the civil court. Sd/- **P.B.SURESH KUMAR JUDGE** bng