Davis v. Varghese S/o Kandamkulathilona and Irinjalakuda Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 25TH DAY OF AUGUST 2016/3RD BHADRA, 1938** **WP(C).No. 4694 of 2015 (J) ---------------------------** **PETITIONER:** ## **-----------** **DAVIS, AGED 83 YEARS,** **S/O. JOSEPH, PULLOKKARAN HOUSE, IRINJALAKUDA, THRISSUR.** **BY ADVS.SRI.RENJITH THAMPAN (SR.) SMT.P.R.REENA SMT.SURYA BINOY** **RESPONDENTS:** **------------** **1. VARGHESE S/O. KANDAMKULATHI LONA, IRINJALAKUDA VILAGE AND DESOM, MUKUNDAPURAM TALUK, THRISSUR - 680121.** **2. IRINJALAKUDA MUNICIPALITY REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, IRINJALAKUDA, THRISSUR - 680 121.** **R1 BY ADV. SRI.K.G.BALASUBRAMANIAN R2 BY ADV. SRI.K.K.CHANDRAN PILLAI (SR.) R2 BY ADV. SMT.K.V.SHENU R2 BY ADV. SMT.S.AMBILY R2 BY ADV. SRI.ARUN ANTONY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-08-2016, ALONG WITH WPC. 5483/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 4694 of 2015 (J)** ## **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT-P1-TRUE COPY OF THE NOTICE DATED 18/03/2013 ISSUED BY THE SECRETARY, IRINJALAKUDA MUNICIPALITY TO THE PETITIONER ALONG WITH ENGLISH TRANSLATION** **EXHIBIT-P2-TRUE COPY OF THE NOTICE DATED 01/04/2013 ISSUED BY THE SECRETARY, IRINJALAKUDA MUNICIPALITY TO THE PEITIONER ALONG WITH ENGLISH TRANSLATION.** **EXHIBIT-P3-TRUE COPY OF THE PHOTOGRAPH SHOWING THE NATURE OF THE BUILDING.** **EXHIBIT-P3(A)-TRUE COPY OF THE PHOTOGRAPH SHOWING THE NATURE OF THE BUILDING.** **EXHIBIT-P4-TRUE COPY OF THE ORDER OF TEH SUB DIVISIONAL MAGISTRATE DATED 06/12/2013 IN M.C 222/2013.** **EXHIBIT-P5-TRUE COPY OF THE PHOTOGRAPH SHOWING THE PRESENT NATURE OF THE BUILDING.** **EXHIBIT-P6-TRUE COPY OF THE PHOTOGRAPH SHOWING THE PRESENT NATURE OF BUILDING.** **EXHIBIT-P7-TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER DATED 07/02/2015 ALONG WITH ENGLISH TRANSLATION** **RESPONDENT(S)' EXHIBITS -----------------------** **NIL** **//TRUE COPY//** **P.A.TO JUDGE** **JJJ** ## **K. VINOD CHANDRAN, J.** -----------------------------------------W.P.(C) No. 4694 of 2015 (J) & W.P.(C) No. 5483 of 2016 (I) -----------------------------------------Dated: 25[th] August, 2016 ## **J U D G M E N T** The petitioner, owner of building No.18/29 of Irinjalakuda Municipality, is before this Court contending that the Municipality, despite having issued an order of demolition, is continuing to issue license to the 1[st] respondent, who is admittedly the lessee of the petitioner. The petitioner, who is the owner of the building, was issued with Ext.P1 notice by the Municipality directing demolition of the said building. The petitioner, being unable to do the same for reason of the occupation of the building by the 1[st] respondent, again was issued with Ext.P2 notice. **W.P.(C) Nos.4694/2015 & 5483/2016** **==> picture [18 x 9] intentionally omitted <==** 2. Ext.P3 is the plaint in a suit filed by the 1[st] respondent against the petitioner, wherein, an injunction was sought for not to disturb the lateral support of the rented shop room since the petitioner, who was the owner of the adjacent property, was carrying on construction activities nearby, i.e., to the northern side of the existing building. Ext.P4 is an order passed on a complaint filed by one Sajeevan and the petitioner herein, which, admittedly, has been set aside by the Sessions Court, against which order there is said to be a Criminal M.C. pending. In such circumstance, as of now, there is no question of any demolition order being passed under Section 138 of the Criminal Procedure Code. In that circumstance, the demolition order of the Municipality also was not proceeded with. ## **W.P.(C) Nos.4694/2015 & 5483/2016** **==> picture [18 x 9] intentionally omitted <==** 3. The learned Counsel for the petitioner submits that the Municipality has been continuing to issue licenses to the 1[st] respondent for carrying on various businesses. The plaint at Ext.P3 indicates the 1[st] respondent having carried on a stationery business at that point of time, which, according to the petitioner, was changed to lottery business in the previous year and now is being used for a textile business. The learned Counsel for the petitioner also points to the decision of this Court in **Alexander v. Mavelikkara Municipality - 2014 (3) KLT 225** , wherein it has been held that when there is a change of business by the tenant, a fresh consent from the landlord is necessary for even a renewal of license. ## **W.P.(C) Nos.4694/2015 & 5483/2016** **-4-** 4. At the outset, it is to be noticed that in the cited decision, the specific contention was that the license was issued for a different business and that the tenant had been permitted, by the owner, to carry on a fruit/vegetable business in the tenanted premises for which the Municipality had issued license. When the tenant requested a license for a restaurant, the Municipality insisted for a fresh consent from the landlord. Applying the principle of an express mention of one thing implying the exclusion of another, applicable to written instruments, the lease agreement was looked into to find the permission only for a fruit/vegetable business. 5. In the present case, but for the assertion of the petitioner that different businesses are being carried on, there is nothing produced to substantiate the same. Further, the petitioner has not even produced the ## **W.P.(C) Nos.4694/2015 & 5483/2016** **-5-** original lease agreement with the 1[st] respondent, which would indicate the specific business for which the lease was granted. The further contention raised by the petitioner is based on the sub-letting of the room by the 1[st] respondent, which is denied by the 1[st] respondent. The learned Standing Counsel appearing for the Municipality submits, on instructions, that even now a license has been issued to the 1[st] respondent for carrying on Plastic and Stationery business, valid till 2017. 6. If the petitioner has a contention that the building itself is in a dangerous state and that it requires re-construction or if the contention is that the 1[st] respondent, who is the lessee, has been sub-letting the premises, the petitioner's remedy is elsewhere; i.e: before the Rent Control Court. The petitioner is also said to have initiated rent control proceedings before ## **W.P.(C) Nos.4694/2015 & 5483/2016** **-6-** the appropriate Court having jurisdiction, which is pending consideration. In such circumstance, this Court is of the opinion that both the above writ petitions, which challenge the issuance of license by the Municipality to the 1[st] respondent, are devoid of merit. The writ petitions would stand dismissed. However, the petitioner's contention of requirement to reconstruct and sub-lease could be taken up before the appropriate forum. No Costs. Sd/K.VINOD CHANDRAN, JUDGE jjj 26/8/16