Hussain Kunju v. Thazhava Grama Panchayat

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS THURSDAY, THE 26[TH] DAY OF OCTOBER 2023 / 4TH KARTHIKA, 1945 ``` ``` WP(C) NO. 7497 OF 2023 ``` ## **`PETITIONER:`** ``` HUSSAIN KUNJU AGED 56 YEARS S/O MYDEEN KUNJU, KALEEYKKAL HOUSE, PAVUMBA VILLAGE, KARUNAGAPPILLY TALUK, MANAPALLY P.O. KOLLAM DISTRICT, PIN – 690574 ``` ``` BY ADVS. J.OM PRAKASH T.G.SUNIL (PRANAVAM) C.X.ANTONY BENEDICT T.G.MANOJ T.G.SANTHOSH T.G.MAHESH EMMANUAL SANJU S.PRAHALADAN ``` ## **`RESPONDENTS:`** ``` 1THE THAZHAVA GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY SREERAMAPURAM MARKET P.O., KOLLAM, PIN – 690539 ``` ``` 2THE SECRETARY THAZHAVA GRAMA PANCHAYAT SREERAMAPURAM MARKET P.O., KOLLAM, PIN - 690539 ``` W.P.(C).No.7497 of 2023 -:2:- ``` BY ADV. K.SIJU KAMALASANAN STANDING COUNSEL, THAZHAVA GRAMA PANCHAYAT ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C).No.7497 of 2023 -:3:- ## **BECHU KURIAN THOMAS, J. -------------------------------------W.P.(C).No.7497 of 2023 --------------------------------------** _Dated this the 26[th] day of October, 2023_ ## **JUDGMENT** Petitioner challenges Ext.P7 communication dated 13.02.2023, issued by the 2[nd] respondent. As per Ext.P7, petitioner’s application for grant of licence to conduct a jewellery business in building No.TP/4/572 of Thazhava Grama Panchayat has been rejected alleging that, the rental agreement with the landlord had already expired. The Secretary of the Panchayat also stated that, the consent letter from the landlord as well as the renewed rental agreement ought to be produced for considering the application for licence. 2. Petitioner alleges that, he had been a tenant of the landlord from the year 2000 as per Ext.P1 lease deed and that his licence was renewed till 2011. Thereafter, due to objection from the landlord the licence was not renewed, though he was conducting the business. 3. Sri. J. Om Prakash, the learned counsel for the petitioner contended that, as per the decision in _**Sudhakaran v. Corporation of Trivandum and Another** [2016 (3) KLT 247]_ , the consent from the -:4:- ## W.P.(C).No.7497 of 2023 landlord is required only when a person intends to obtain a licence for the first time and for renewal or subsequent applications for licence such consent cannot be insisted upon. 4. Sri. Siju Kamalasanan, the learned Standing Counsel for the respondent Panchayat on the other hand submitted that, petitioner’s licence expired in the year 2012 and thereafter, there was never any application for licence nor did the petitioner conduct any business and therefore, the present application has to be treated as a fresh application, which requires the consent of the landlord. It was also submitted that, by virtue of the impugned communication dated 13.02.2023, the Panchayat had informed that, as and when the renewed rental agreement and consent letter is produced, the application for licence can be considered and therefore, there is no reason to issue any direction. 5. Petitioner and the landlord are involved in a rent control dispute as evident from Ext.P8 judgment dated 12.07.2023 in R.C(OP).No.5/2018 on the files of the Rent Control Court, Karunagappally. As per the said judgment, the application for eviction filed by the landlord was dismissed. A perusal of the said judgment indicates that, petitioner continues as a statutory tenant under the W.P.(C).No.7497 of 2023 -:5:- Kerala Buildings (Lease and Rent Control) Act, 1965, and therefore, he is entitled to continue the occupation unless and until evicted either by operation of law or by act of parties of by an order of the court. Neither of the three circumstances mentioned have occurred and therefore, petitioner is entitled to continue in occupation of the building. 6. In the decision in _**Sudhakaran v. Corporation of Trivandum and Another** [2016 (3) KLT 247]_ , the Supreme Court had observed that a valid tenancy is an implied authority of the landlord for legitimate use of the building by the tenant. While considering the case of the need of a consent from the landlord for obtaining licences from the Local Authorities, the Court observed that, even in the case of application for obtaining a licence for the first time, the tenant cannot be deprived of running a lawful business merely because a landlord withheld the consent. 7. Viewed in the light of the aforesaid decision and considering the decision of the Rent Control Court in Ext.P8, it is evident that, even if petitioner’s application for the grant of licence for the present year is treated as a fresh application, has contended by the learned Standing Counsel, still, a consent cannot be insisted upon, since, as a statutory tenant, petitioner is entitled to claim the benefit of implied consent of W.P.(C).No.7497 of 2023 -:6:- the landlord. Therefore, the insistence by the Panchayat on production of a consent letter as well as an existing lease agreement from the landlord for the purpose of considering the application for licence is without any legal backing. Hence, Ext.P7 communication dated 13.02.2023, rejecting petitioner’s application for licence is liable to be set aside. 8. Accordingly, Ext.P7 is set aside and the 2[nd] respondent is directed to reconsider petitioner’s application for licence, as expeditiously as possible, at any rate, within a period of 30 days from the date of receipt of a copy of this judgment, without insisting on consent or rental agreement from the landlord. Writ petition is allowed as above. Sd/- **BECHU KURIAN THOMAS JUDGE** Jka/26.10.23. ## W.P.(C).No.7497 of 2023 -:7:- ## **`APPENDIX OF W.P.(C).NO. 7497/2023`** ## **`PETITIONER’S EXHIBITS`** - `Exhibit P1` ``` TRUE COPY OF THE LEASE DEED DATED 05.01.2000 EXECUTED IN FAVOUR OF PASHUPALAN BY THE PETITIONER. ``` - `Exhibit P2 TRUE COPY OF LICENCE DATED 30.09.2011 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.` - `Exhibit P3 TRUE COPY OF PETITION NO. O.P (BRC) NO. 5/2018 DATED 19.06.2018 FILED BY PASHUPALAN BEFORE THE RENT CONTROL COURT, KARUNAGAPPALLY.` - `Exhibit P4 TRUE COPY OF ORDER NO. 400274/RPDC17/ GENERAL/2022/13841 (1) DATED 26.12.2022 OF THE 2ND RESPONDENT.` - `Exhibit P5 TRUE COPY OF APPLICATION DATED 31.01.2023 BY PETITIONER SUBMITTED BEFORE THE 2ND RESPONDENT.` - `Exhibit P6 TRUE COPY OF THE COVERING LETTER OF THE PETITIONER DATED 31.01.2023 GIVEN TO 2ND RESPONDENT.` - `Exhibit P7 TRUE COPY OF ORDER NO. 400274/RPTL 19/ GENERAL/2023/1095 (1) DATED 13.02.2023 ISSUED BY THE 2ND RESPONDENT.` - `Exhibit P8 A TRUE COPY OF ORDER OF THE RENT CONTROL COURT, KARUNAGAPPALLY IN RC(OP) NO. 5/2018 DATED12.07.2023` W.P.(C).No.7497 of 2023 -:8:- ## **`RESPONDENT ANNEXURES`** ``` Annexure R1(a)THE COPY OF GOVERNMENT CIRCULAR NO.RC- 3/228/2020/LSGD DATED 9.7.2021 ISSUED BY THEPRINCIPALSECRETARYTOTHE GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT ```