Jayaprakash P.S v. Kozhikode Corporation and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943** ## **WP(C).No.7487 OF 2021(I)** ## **PETITIONER:** **JAYAPRAKASH P.S, AGED 62 YEARS** **S/O.SEKHARAN.P., ATHUL HOUSE, PILAKANDI, PUTHIYANGADI (PO), KOZHIKODE-673021.** **BY ADV. SRI.K.PRAVEEN KUMAR** ## **RESPONDENTS:** - **1 KOZHIKODE CORPORATION REPRESENTED BY ITS SECRETARY, NEAR AKASHVANI, CALICUT BEACH, KOZHIKODE-673032.** - **2 THE SECRETARY, KOZHIKODE CORPORATION, NEAR AKASHVANI, CALICUT BEACH, KOZHIKODE-673032.** - **3 SREERAJ.P., S/O.SEKHARAN P., C/O.SHEEJA, ANAGHA, PUTHIYANGADI (PO), KOZHIKODE-673021.** **R1-2 BY ADV. SHRI.V.KRISHNA MENON, SC, KOZHIKODE MUNICIPAL CORPORATION** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-042021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.7487 OF 2021(I) 2 ## **C.R.** ## **P.B.SURESH KUMAR, J.** **--------------------------------------------------** **W.P.(C) No.7487 of 2021 --------------------------------------------------Dated this the 9[th] day of April, 2021** ## **J U D G M E N T** The father of the petitioner owned a building consisting of a few shop rooms within the limits of the first respondent Corporation (the Corporation). On the death of the father, the said building devolved on the mother of the petitioner, the petitioner, two sisters of the petitioner and the third respondent, the brother of the petitioner. While so, the mother of the petitioner executed Ext.P3 licence agreement in favour of the petitioner in respect of one of the shop rooms in the building bearing door No.39/1579B. Ext.P3 licence agreement has been executed by the mother of the petitioner styling herself as the owner of the building. On the strength of Ext.P3, the petitioner is engaged in the trade of manufactured fireworks, Chinese crackers, sparklers etc., in the shop room covered by Ext.P3 licence agreement since 09.04.2013, after obtaining licence from the competent authority under the Explosives Rules, 2008. The mother of WP(C).No.7487 OF 2021(I) 3 the petitioner died on 01.09.2013. The petitioner, however, has not obtained licence as provided for under Section 447 of the Kerala Municipality Act, 1994 (the Act). Later, on 23.07.2020, the competent authority of the Corporation called upon the petitioner to obtain licence as provided for under Section 447 of the Act for the trade undertaken by him in the shop room covered by Ext.P3. Ext.P6 is the notice issued by the Corporation to the petitioner in this regard. It is stated by the petitioner that though he approached the Corporation for licence on receipt of Ext.P6 notice, the application preferred by the petitioner in this regard viz, Ext.P9 has been returned by the Corporation, taking the stand that the same can be entertained only if it is accompanied by the consent letters of all the siblings of the petitioner who own the building along with the petitioner. It is stated that the petitioner had in fact produced along with Ext.P9 application, the consent letters of his sisters, and he could not produce the consent letter of his brother, the third respondent, who refused to give the consent letter sought by the Corporation. The case of the petitioner is that in terms of the provisions of the Act and the Rules made thereunder, consent letter could be insisted by the Corporation for licence only where the applicant is a person other than the owner of the premises. According to the petitioner, as he is one of the coowners of the premises, he has to be treated as the owner of the WP(C).No.7487 OF 2021(I) 4 premises and that the Corporation is, therefore, not justified in insisting production of the consent letters of other co-owners of the premises for the purpose of considering the application for licence preferred by the petitioner. The petitioner, therefore, seeks directions to the second respondent to accept Ext.P9 application and issue the licence sought for by him, without insisting production of consent letters of other co-owners including the third respondent. 2. Though notice was issued to the third respondent by special messenger, he has not chosen to appear in the matter. 3. Heard the learned counsel for the petitioner as also the learned Standing Counsel for the Corporation. 4. The learned counsel for the petitioner asserted the case set out in the writ petition. The learned Standing Counsel for the Corporation, however, pointed out that consent letters of the owners of the premises are mandatory for the purpose of considering the application for licence for the first time, and the same cannot be dispensed with. 5. The provision relied on by the learned Standing Counsel for the Corporation to justify the aforesaid stand is sub-section (3) of Section 492 of the Act. Sub-section (3) of Section 492 of the Act reads thus: “(3) 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 WP(C).No.7487 OF 2021(I) 5 premises in question, he shall, along with the application 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.” Identical provision is there in the Kerala Municipality (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 2011. A reading of the extracted provision would indicate that the said provision applies only to cases where the applicant for licence is a person other than the owner of the premises. In the case on hand, the petitioner is one among the co-owners of the premises. A co-owner of a property owns every part of the composite property along with others, and it cannot be said that he is only a part-owner or a fractional owner of the property. In other words, a co-owner of a property has to be treated as the owner of the property for all practical purposes until the property is partitioned among the co-owners. Placing reliance on a passage from Salmond on Jurisprudence (13th Edition), the Apex Court has clarified the said legal position in **Sri Ram Pasricha v. Jagannath and others,** (1976) 4 SCC 184. The relevant paragraphs of the said judgment read thus: 26. Mr V.S. Desai reads to us from _Salmond on Jurisprudence_ (13th Edn.) and relies on the following passage in Chapter 8 (Ownership), para 46 at p. 254: “As a general rule a thing is owned by one person only at a time, but duplicate ownership is perfectly possible. Two or more persons may at the same time have ownership of the same thing vested in them. This may happen in several distinct ways, but the simplest and most obvious case is that of co-ownership, partners, for example, are co-owners of the chattels which constitute their stock-in-trade, of the lease of the premises on which their WP(C).No.7487 OF 2021(I) 6 business is conducted, and of the debts owing to them by their customers. It is not correct to say that property owned by coowners is divided between them, each of them owning a separate part. It is an undivided unity, which is vested at the same time in more than one person.... The several ownership of a part is a different thing from the co-ownership of the whole. So soon as each of two co-owners begins to own a part of the thing instead of the whole of it, the co-ownership has been dissolved into sole ownership by the process known as partition. Co-ownership involves the undivided integrity of what is owned”. 27. Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place. It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning of Section 13(1)( _f_ ). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of Section 13(1)( _f)_ as long as he is a co-owner of the property being at the same time the acknowledged landlord of the defendants. In the light of the said legal position, I am of the view that the stand of the Corporation that the petitioner has to produce consent letters of the remaining co-owners of the premises for the purpose of considering the application for licence is unsustainable in law. I take this view also having regard to the fact that the object of the provision aforesaid is only to ensure that strangers do not establish business in the premises unconnected to them, leading to chaotic situations involving not only the landlords, but also the civic bodies. In the result, the writ petition is allowed and the second respondent is directed to accept Ext.P9 application and grant the WP(C).No.7487 OF 2021(I) 7 licence sought for by the petitioner forthwith, without insisting production of consent letters of the remaining co-owners of the premises, if the application of the petitioner is otherwise in order. **Sd/-** **P.B.SURESH KUMAR** Mn **JUDGE** WP(C).No.7487 OF 2021(I) 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE DEATH CERTIFICATE IN RESPECT OF PETITIONER'S FATHER. EXHIBIT P2 TRUE COPY OF THE LEGAL HEIR CERTIFICATE OF PETITIONERS FATHER. EXHIBIT P3 TRUE COPY OF THE LICENSE AGREEMENT DATED 01.11.2012. EXHIBIT P3(A) TRUE COPY OF THE CONSENT OF PETITIONER'S MOTHER TO RUN FIREWORKS BUSINESS. EXHIBIT P4 TRUE COPY OF THE EXPLOSIVE LICENSE OF THE PETITIONER NO.1358/KDE/2013 DATED 09.04.2013. EXHIBIT P4(A) TRUE COPY OF THE PROCEEDINGS NO.2013/3592/11/D5 DATED 09.04.2013 OF THE ADDITIONAL DISTRICT MAGISTRATE, KOZHIKODE. EXHIBIT P5 TRUE COPY OF THE DEATH CERTIFICATE OF PETITIONER'S MOTHER. EXHIBIT P6 TRUE COPY OF THE NOTICE NO.E/14/323/2020D DATED 23.07.2020. EXHIBIT P7 TRUE COPY OF THE CONSENT LETTERS OF PETITIONER'S SISTERS DATED 03.08.2020. EXHIBIT P8 TRUE COPY OF THE RECEIPT NO.24308 DATED 17.03.2021 SHOWING RECEIPT OF APPLICATION OF TRANSFER OF NAME (MUTATION). EXHIBIT P9 TRUE COPY OF THE APPLICATION FOR D&O LICENSE SUBMITTED BY PETITIONER BEFORE THE 1ST RESPONDENT.** //TRUE COPY// PA TO JUDGE