J. Bhavani Amma and Lakshmi B. v. The Deputy Commissioner, State Goods and Service Tax Department, Ernakulam; The Assistant Commissioner, State Goods and Service Tax Department, Mattancherry; Paul Varghese

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 29[TH] DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943** ## **WP(C) NO. 3906 OF 2020** ## **PETITIONERS:** 1 J.BHAVANI AMMA, AGED 85 YEARS W/O.PRABHAKARAN PILLAI, PRASANTHI HOUSE, VADAKKEDATH, CHENGAMANAD VILLAGE, CHENGAMANAD P.O., ALUVA TALUK, ERNAKULAM DISTRICT-683 578 2 LAKSHMI.B., AGED 48 YEARS D/O. BHAVANI AMMA, SAI VIHAR, CHENGAMANAD P.O., ALUVA TALUK, ERNAKULAM DISTRICT-683 578, PRESENTLY RESIDING AT ANJANAM, SWARGAM ROAD, DESAM P.O.,ALUVA TALUK, ERNAKULAM DISTRICT-683 015 BY ADVS. V.N.SANKARJEE SRI.V.N.MADHUSUDANAN SMT.R.UDAYA JYOTHI SRI.M.M.VINOD SMT.M.SUSEELA SMT. KEERTHI B. CHANDRAN SHRI.VIJAYAN PILLAI P.K. **RESPONDENTS:** 1 THE DEPUTY COMMISSIONER, STATE GOODS AND SERVICE TAX DEPARTMENT, ERNAKULAM, THEVARA, ERNAKULAM DISTRICT-682 015 2 THE ASSISTANT COMMISSIONER, STATE GOODS AND SERVICE TAX DEPARTMENT, MATTANCHERRY, KOCH TALUK, ERNAKULAM DISTRICT,PIN682 002 3 PAUL VARGHESE, AGED 56 YEARS PUTHUSSERY HOUSE, NEDUMBASSERRY VILLAGE, POIKKATTUSERRY KARA, ALUVA TALUK, ERNAKULAM DISTRICT,PIN-683 585 (PROPRIETOR, K.K.FRANCIERS,DOOR NO.(OLD) C P III/317 (NEW NO .C P III/429), CHENGAMANAD P.O., CHENGAMANAD VILLAGE, ALUVA TALUK, ERNKAULAM DISTRICT-683 578 BY ADVS.SMT.DEEPA NARAYANAN, SR.GP SRI.S.SANTHOSH KUMAR SMT.P.LISSY JOSE **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C).No.3906/2020** **2** ## **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).No.3906 of 2020 ---------------------------------------------Dated this the 29[th] day of October, 2021** ## **JUDGMENT** This writ petition is filed with following prayers: - i. Issue a writ in the nature of certiorari or any other appropriate writ, order or direction quashing Exhibit P-8 and Exhibit P-9 after calling for the records leading thereto. - ii. Issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing the 2[nd] respondent to implement Exhibit P-7 order with immediate effect. - iii. Pass such other orders as this Honourable Court deems fit and necessary in the interest of justice and for proper and effective adjudication of the case. 2. First petitioner is the mother of the 2[nd] petitioner. The 2[nd] petitioner is the owner of a building bearing No.III/429 (old No.III/317) of Chengamanad Panchayat, by virtue of a release deed bearing No.5960/2013 dated 26.12.2013 on the **W.P.(C).No.3906/2020** **3** file of SRO, Chengamanad. Originally this shop room belonged to Prabhakaran Pillai, husband of the 1[st] petitioner and father of the 2[nd] petitioner. Prabhakaran Pillai died in the year 1994 after bequeathing the shop room together with other properties to the 1[st] petitioner by his last Will bearing No.48/1991 on the file of the SRO, Chengamanad. The said Prabhakaran Pillai let out the said shop room to the 3[rd] respondent in the year 1985 which was renewed by the lease agreement dated 10.11.1993. It is the case of the petitioners that after the death of Prabhakaran Pillai in 1994 no lease deed was ever executed for renewal of the lease arrangement in respect of the said shop room. It is further stated by the petitioners that after the death of Prabhakaran Pillai, certain disputes were arisen in respect of the lease arrangement in respect of the shop room with the 3[rd] respondent, which leads to R.C.P.No.17/2005 before the Rent Controller, Aluva, seeking eviction under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965. Ext.P1 is the Rent Control Petition and Ext.P2 is the objection dated 07.02.2006 filed by the 3[rd] respondent. It is the further case of the petitioners that R.C.P.No.37/2011 was also filed seeking eviction of the said **W.P.(C).No.3906/2020** **4** shop room on the ground of additional accommodation. The 3[rd] respondent filed objection dated 19.07.2012, showing that he had been the tenant in respect of the shop room since 1985 on the basis of lease agreement between him and the late Prabhakaran Pillai, husband of the 1[st] petitioner and that the lease agreement was renewed in 1993 by the 3[rd] respondent. Ext.P3 is the objection filed in R.C.P.No.37/2011. Meanwhile, it is submitted by the petitioner that the 1[st] petitioner came to know from the information dated 17.10.2018 issued by the State Public Information Officer, The Assistant Commissioner of State Tax, Mattancherry that the 3[rd] respondent had forged and fabricated a document as 'vadaka karar' dated 08.05.2003 alleged to have been executed by the 1[st] petitioner and the 3[rd] respondent in respect of the shop room fixing monthly rent at Rs.450/- starting from 01.04.2003. Ext.P4 is the information. It is the definite case of the petitioners that the signatures which are claimed to be that of the 1[st] petitioner in the lease deed mentioned in Ext.P4 are not that of the 1[st] petitioner. The document forming part of Ext.P4 is apparently and manifestly a forged and fabricated document, the petitioners submit. It is the case of the petitioners that the 3[rd] respondent forged and **W.P.(C).No.3906/2020** **5** fabricated the document forming part of Ext.P4 and on the basis of which the 3[rd] respondent obtained licence under Section 4 of the Kerala Money Lenders Act, 1958. Hence the 1[st] petitioner filed a complaint dated 13.11.2018 before the 2[nd] respondent against the 3[rd] respondent to cancel his licence under Section 14 of the Kerala Money Lender Act and to impose penalty under Section 18 of the said Act. Ext.P5 is the complaint. The 3[rd] respondent filed Ext.P6 objection to the complaint. Thereafter as per Ext.P7 order, the 2[nd] respondent was pleased to cancel the licence issued to the 3[rd] respondent under Section 14 of the Kerala Money Lenders Act after imposing penalty under Section 18 of the said Act. Ext.P7 and the order by which the fine was imposed were challenged before the 1[st] respondent and the 1[st] respondent was pleased to set aside those orders as per Exts.P8 and P9. Aggrieved by the same, this writ petition is filed. 3. Heard the counsel for the petitioner, the Government Pleader and the counsel appearing for the 3[rd] respondent. 4. The counsel for the petitioners reiterated his contentions in the writ petition. The counsel submitted that **W.P.(C).No.3906/2020** **6** the 3[rd] respondent obtained the licence by producing forged document before the licensing authority. The counsel submitted that the 2[nd] respondent perfectly justified in cancelling licence and there is nothing to interfere with Ext.P7 order passed by the 2[nd] respondent. The counsel submitted that the 2[nd] respondent considered the matter in detail after analysing the evidence available and cancelled the licence and imposed penalty and there is nothing to interfere in an appeal filed by the 3[rd] respondent. The learned counsel relied on the judgment of the Apex Court in **S.P. Chengalvaraya Naidu v. Jagannath and Others [1995 KHC 182]** and **Ram Chandra Singh v. Savithri Devi and Others [2003 KHC** **1609]** . The counsel for the petitioners submitted that if a party obtained an order by producing forged document, it is trite that the entire proceedings are void ab initio. The counsel also submitted that the licensing authority clearly found that the document produced by the 3[rd] respondent is a forged document and the appellate authority erred in interfering with the same. On the other hand, the counsel for the 3[rd] respondent submitted that the licensing authority has no business to decide the validity of a document. The counsel **7** ## **W.P.(C).No.3906/2020** relied on Section 45 of the Evidence Act and submitted that a detailed procedure is there in Section 45 of the Evidence Act to prove that a document is forged. The licensing authority has no business to decide the validity of a document and only a competent civil court can do the same. The counsel also submitted that as far as issuance of licence is concerned, the production of lease agreement is not at all a criteria and that is not a document to be considered by the licensing authority. 5. The Government Pleader submitted that a detailed counter affidavit is filed. The Government Pleader submitted that there is nothing to interfere with Exts.P8 and P9 orders. The Government Pleader also relied on the judgment of the Apex Court in **Sudhakaran v. Corporation of Trivandurm [2016 (3) KLT 247 (SC)]** in which it is stated that the requirement of consent of landlord is applicable only when a person intends to obtain a licence for the first time and the same is not applicable for renewal. The Government Pleader also submitted that it is an admitted fact that there is a landlord-tenant relationship. Moreover the petitioners filed Rent Control Petition before the Rent Control Court against the 3[rd] respondent. In such a situation, the Government **W.P.(C).No.3906/2020** **8** Pleader submitted that, since the tenancy is not disputed, this question will not arise for consideration. 6. I considered the contentions raised by the petitioners and the 3[rd] respondent. It is an admitted fact that the 3[rd] respondent is a tenant of the petitioners. There is no dispute on that because the petitioners already approached the Rent Control Court with an eviction petition against the 3[rd] respondent and the same is pending before the Rent Control court. The impugned orders in this case are passed by the 1[st] respondent in an appeal filed by the 3[rd] respondent against Ext.P7 order passed by the 2[nd] respondent. The question that came up for consideration before the 2[nd] respondent is whether the licence is to be cancelled based on an alleged document produced by the 3[rd] respondent, which, according to the petitioners, is a forged document. The licensing authority, after going through the evidence available, passed Ext.P7 order, finding that the document produced by the 3[rd] respondent is a forged document. Thereafter when the appeal was considered by the 1[st] respondent, the 1[st] respondent found that there is no provision in the Act and Rules which mandate that the person applying money lending licence should **W.P.(C).No.3906/2020** **9** produce a copy of the rent deed. But the appellate authority also went to the extent of comparing signature of Bhavani Amma with the disputed rent deed and found that there is no difference in the signature and also found that the disputed document is genuine. It will be better to extract the relevant portion of Ext.P8 order to decide the matter: _“_ So the only oral evidence to prove that the disputed rent deed is a forged one is that of petitioner and the only evidence to prove that the disputed rent deed is genuine is of the appellant. Smt. Bhavani Amma had not produced any expert evidence to prove that the signature in disputed rent agreement is not her signature. The police had not filed any final report against the appellant alleging that appellant forged rent deed even though they had registered a crime against the appellant. I compared the signature of Bhavani Amma found in the disputed rent agreement with her admitted signature found in the petition filed by her before the Hon'ble Rent control Court and in the statement given by her to the Inspecting Assistant Commissioner. On such comparison it is found that the signatures of Bhavani Amma found in the disputed rent deed and her admitted signatures are similar. In view of the above facts and circumstance I am of the view that the interested version of Bhavani Amma alone with out any other corroborative **10** ## **W.P.(C).No.3906/2020** material is not sufficient to hold that the disputed rent agreement is a forged one. Hence it is held that the finding of the Inspecting Assistant Commissioner that the disputed rent agreement is a forged one is without any expertise and jurisdiction. Moreover genuineness of rent agreement is not a condition to cancel the money lending license as per Kerala Money Lenders Act. The decisions relied on by the appellant is also relevant in this case. “The appellant also produced copy of judgment of Hon'ble Supreme Court Sudhakaran Vs. Corporation of Thiruvananthapuram and another in 2016 3 KHC 803 in which case of Municipality Act 1994 (Kerala) it was held that requirement of consent of land lord is applicable only when a person intends to obtain a license for the first time. Renewal of subsequent application for obtaining license in expiry period of existing license during the currency of tenancy is not applicable for obtaining license. Even in the case of application for obtaining license for the first time tenant cannot be deprived for rendering lawful business merely because land lord withheld the consent. Valid tenancy itself has implied authority of the land lord for legitimate use of the premises by the tenant". In this case it is an admitted fact that the appellant herein is the tenant in possession of the shop room in **W.P.(C).No.3906/2020** **11** which he is conducting money lending business. There is no provision in the Act and Rules which mandate that the person applying for money lending license should produce the copy of the rent deed. Since the appellant is admittedly a tenant in possession of the shop room and there is no provision mandating the production of rent deed at the time of applying for license, I am of the view that the order of the Inspecting Assistant commissioner canceling the money lending license of the appellant on the ground that the copy of rent deed produced by the appellant is a forged one is not proper. In view of the the above discussion the appeal is allowed and the order of the Inspecting Assistant Commissioner canceling the license of the appellant is set aside. _”_ 7. As far as the finding of the appellate authority regarding the genuineness of the document is concerned, I think the same is unnecessary. The appellate authority need not look into those aspects while considering an application to cancel the licence. Admittedly as per the Kerala Money Lenders Act, 1958, the production of rent deed is not a requirement for renewing the licence. Moreover in this case the tenancy is not even disputed by the petitioners. In such circumstances, according to me, the appellate authority need **W.P.(C).No.3906/2020** **12** not consider the genuineness of the lease agreement produced by the 3[rd] respondent. The counsel for the petitioners submitted that there is a forgery and the forged document produced before the authority. But, according to me, the licensing authority or the appellate authority need not go into the validity of the document produced before the authorities. These points are to be considered by a competent court and Section 45 of the Evidence Act, which says about the way in which the genuineness of a document is to be decided. Therefore, the finding regarding the genuineness of the document mentioned in Ext.P8 will not stand. But, as far as the other finding in Ext.P8 is concerned, according to me, there is nothing to interfere with the same. As observed by the appellate authority, there is no provision in the Act and Rules which mandate that the person applying for money lending licence should produce the copy of the rent deed. Moreover, the 3[rd] respondent is admittedly the tenant and he is in possession of the shop room and there is no provision mandating the production of the rent deed at the time of applying for licence or at the time of renewal of licence. Moreover, it will be better to consider the dictum laid down by **13** ## **W.P.(C).No.3906/2020** the Apex Court in **Sudhakaran’s case** (supra). Relevant portion of the judgment is extracted hereunder: _“_ 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 the light of the above discussion, I think the finding of the appellate authority on this aspect is perfectly justified and there is nothing to interfere. As far as Ext.P9 order is concerned, it is only an order by which a technical penalty is imposed in the light of Ext.P8 and there is nothing to interfere with the same. 8. It is true that the counsel for the petitioners relied on two judgments of the Apex Court. I considered those **W.P.(C).No.3906/2020** **14** judgments. As far the case cited by the counsel for the petitioners in **Chengalvaraya’s case** (supra) and **Ram Chandra Singh’s case** (supra), both cases are delivered in connection with the consideration of a suit. According to me, it is a settled position that a judgment or decree obtained by playing fraud on the court is a nullity and nonest in the eyes of law. In the light of the discussions in the earlier paragraphs, according to me, those judgments are not applicable to the facts and circumstances of this case. But I make it clear that all the contentions of the petitioners regarding the genuineness of the rent deed produced before the licensing authority are left open and the petitioners are free to agitate that contentions before the appropriate court in accordance to law. But, cancelling the licence by the licensing authority is without any justification and the appellate authority perfectly justified in setting aside Ext.P7 order as per Exts.P8 and P9. Therefore, according to me, there is nothing to interfere with the impugned orders. Hence, this writ petition is dismissed. But I make it clear that all the contentions of the petitioners about the genuineness of the alleged rent deed produced before the 2[nd] respondent are left open and the **15** ## **W.P.(C).No.3906/2020** petitioners are free to agitate those contentions before the appropriate court in accordance to law. Sd/- **P.V.KUNHIKRISHNAN JUDGE** JV **16** ## **W.P.(C).No.3906/2020** ## **APPENDIX OF WP(C) 3906/2020** PETITIONER EXHIBITS |EXHIBIT P1|TRUE COPY OF THE RENT CONTROL PETITION| |---|---| ||DATED 30.7.2005 IN R.C.P.NO.17/2005| ||BEFORE THE RENT CONTROLLER,ALUVA| |EXHIBIT P2|TRUE COPY OF THE OBJECTION DATED| ||7.2.2006 FILED BY THE 3RD RESPONDENT| ||IN R.C.P. NO.17/2005| |EXHIBIT P3|TRUE COPY OF THE OBJECTION DATED| ||19.7.2012 IN R.C.P NO 37/2011 ON THE| ||FILE OF THE RENT CONTROLLER, ALUVA| |EXHIBIT P4|TRUE COPY OF THE INFORMATION DATED| ||17.10.2018 ISSUED BY THE STATE PUBLIC| ||INFORMATION OFFICER, THE ASSISTANT| ||COMMISSIONER OF STATE TAX,| ||MATTANCHERRY, TOGETHER WITH THE FORGED| ||DOCUMENT DESCRIBED AS 'VADAKA KARAR'| ||DATED 8.5.2003| |EXHIBIT P5|TRUE COPY OF THE PETITIONER'S| ||COMPLAINT DATED 13.11.2018 TO THE 2ND| ||RESPONDENT| |EXHIBIT P6|TRUE COPY OF THE OBJECTION DATED| ||27.12.2018 OF THE 3RD RESPONDENT FILED| ||BEFORE THE 2ND RESPONDENT| |EXHIBIT P7|TRUE COPY OF THE 2ND RESPONDENT'S| ||ORDER NO.32150427311/17-18 DATED| ||20.6.2019| |EXHIBIT P8|TRUE COPY OF THE 1ST RESPONDENT'S| ||ORDER DATED 6.12.2019 IN KML APPEAL C| ||11-1513/2019| |EXHIBIT P9|TRUE COPY OF THE 1ST RESPONDENT'S| ||ORDER DATED 6.12.2019 IN KML APPEAL C| ||11-1513A/2019| |Exhibit P10|TRUE COPY OF THE LAWYER NOTICE DATED| ||5.1.2005 ISSUED BY ADV. T.R.| ||RAMANATHAN TO THE 3RD RESPONDENT| |Exhibit P11|TRUE COPY OF THE 3RD RESPONDENT'S| ||REPLY NOTICE DATED 11.3.2005 ISSUED BY| ||ADV. K. NARAYANAN TO ADV.| ||T.R.RAMANATHAN| |Exhibit P12|TRUE COPY OF THE LAWYER NOTICE DATED| ||2.3.2020 ISSUED BY ADV. M.P.RAMANTH,| ||TO THE 3RD RESPONDENT| |Exhibit P13|TRUE COPY OF THE REPLY NOTICE DATED| **17** ## **W.P.(C).No.3906/2020** 16.3.2020 ISSUED BY ADV. M.B.SUDARSANAKUMAR TO ADV. M.P.RAMNATH RESPONDENTS' EXHIBITS EXHIBIT R3(A) COPY OF MONEY LENDING LICENCE ISSUED BY THE INSPECTING ASSISTANT COMMISSIONER, MATTANCHERRY FOR THE YEAR 2020-2021 EXHIBIT R3(B) COPY OF THE APPEAL MEMORANDUM DATED 17.07.2019 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT EXHIBIT R3(C) COPY OF THE PETITIONER IN RCP NO.17/2005 OF THE RECNT CONTROL COURT, ALUVA