Kattoor Khadeeja v. Payyannur Municipality & Secretary, Payyannur Municipality (Respondents) & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 15TH DAY OF OCTOBER 2020 / 23RD ASWINA, 1942** ## **WA.No.1351 OF 2020** **AGAINST THE ORDER/JUDGMENT IN WP(C) 18681/2019(I) OF HIGH COURT OF KERALA** ## **APPELLANT/ADDITIONAL 3RD RESPONDENT:** **KATTOOR KHADEEJA, D/O.ALIYUMMA, AGED 66 YEARS, RESIDING AT KELOTH, PAYYANNUR.P.O., KANNUR DISTRICT – 670 307.** **BY ADV. SRI.MAHESH V RAMAKRISHNAN** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2** > **1 P.K.C.MARIYUMMA @ MARIAMBI W/O.T.K.P.ABDUL HAMEED HAJI, BUSINESS MARIAYAM VILLA, CHOKKIKANDAM, PADANNA VILLAGE, PADANNA,KASARAGOD – 671312. 2 PAYYANNUR MUNICIPALITY, REPRESENTED BY ITS SECRETARY, PAYYANNUR MUNICIPALITY, PAYYANNUR, KANNUR DISTRICT – 670 307. 3 THE SECRETARY, PAYYANNUR MUNICIPALITY, PAYYANNUR, KANNUR DISTRICT – 670 307.** **SRI.GEORGE MATHEWS FOR R1, SRI.M.SASINDRAN, STANDING COUNSEL FOR R2 AND R3** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 15.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.1351 OF 2020 2 ## **JUDGMENT** ## **SHAJI P.CHALY,J** This writ appeal is preferred by the 3[rd] respondent in W.P.(C) No.18681/2019, challenging the judgment of a learned Single Judge dated 9.9.2020, whereby the writ petition filed by the 1[st] respondent herein i.e., one P.K.C.Mariyumma was allowed, holding that the Payyannur Municipality is bound to issue licence to the 1[st] respondent - tenant of the buildings belonging to the appellant, in accordance with law. Brief material facts for the disposal of the writ appeal are as follows; 2. First respondent's husband one T.K.P.Abdul Hameed Haji was running a business of footwear in rooms bearing Nos.PMC 22/783 and 791 (new numbers, PMC 19/1426 & 19/1431),belonging to the appellant . The licence was issued in the name of Abdul Hameed Haji, who died on 28.6.2018. Thereafter, according to the writ petitioner, she is managing the affairs of the shop with the help of a staff viz., Rafi. It is also the case of the writ petitioner that the owner of the rooms is not in good terms with the writ petitioner especially after the death of Abdul Hameed Haji. Thereupon, the owner and her son want the writ petitioner, to vacate the room for their use. 3. It is the case of the writ petitioner that without seeking any legal remedy for evicting the writ petitioner, the writ petitioner was harassed WA.No.1351 OF 2020 3 by the building owner and her son and when it became intolerable, writ petitioner filed O.S No.142/2018 seeking a decree against forcible eviction of the writ petitioner from the shop rooms. While so, the writ petitioner approached the 2[nd] respondent, Payyannur Municipality, during the 1[st] week of February, 2019 for renewal of the licence. All the required documents were given, however, the officials of the Municipality refused to accept the fee for renewal of licence stating that since the licensee is dead, a legal heir-ship certificate is to be produced for receiving the renewal fee and it is to be done by online only. Thereupon the writ petitioner approached the Village Officer, Padanna, for securing legal heir ship certificate and the said application is now pending consideration before the Tahsildar, Hosdurg. 4. In the meanwhile, the building owners approached the Municipal Authorities and conveyed that the building was sublet and the business is done without licence. It was accordingly that a show cause notice was issued to the writ petitioner by the Municipality asking the writ petitioner to show cause why action shall not be taken against the writ petitioner for conducting the business without licence, evident from Ext.P8 dated 21.6.2019. Apparently the writ petitioner has sent a reply explaining that there is no subletting and also stating that the application for legal heir ship certificate is pending consideration before the Village/Revenue Authorities. But the Municipal Authorities were not satisfied with the same and threatened closure of business establishment, which necessitated the writ petitioner to WA.No.1351 OF 2020 4 approach the writ Court by filing the instant writ petition. 5. The learned Single Judge found that the writ petitioner would fall into the meaning of tenant as defined under the Kerala Buildings (Lease and Rent Control) Act, 1965. Therefore, the legal position of the writ petitioner cannot be disputed. It was also found that the Municipality only needs to consider the legal position and nothing else and in view of the fact that the writ petitioner comes within the meaning of tenant as defined under the Act, 1965, there is no bar for the Municipality in issuing licence to the writ petitioner. It was also observed that if there is any dispute for possession or interest in the building, the parties are free to agitate before the Civil court . It was accordingly that the Municipality was directed to issue licence to the writ petitioner in accordance with law. 6. The appeal is filed by the landlord basically contending that there is no illegality in rejecting the application for renewal of licence as per Ext.P8 by the Municipality, since as per the terms of lease deed, the rooms were let out for conducting ready-made shop and the consent was only given with respect to the same. However, violating the terms of the agreement and without the consent of the appellant, the original licensee, Abdul Hameed Haji started the business of footwear and bags. It is also contended that after the death of Abdul Hameed Haji, the business is continued by strangers without any licence and therefore, there is no scope for renewing the licence. It is further submitted that as per rule 11 of the Kerala Municipality (Issue of WA.No.1351 OF 2020 5 Licence to Dangerous and Offensive Trades and Factories) Rules, 2011, a consent from the landlord in renewing the licence is mandatory unless the applicant is the original licensee or owner of the building or his legal heir. Therefore, the sum and substance of the contention put forth by the appellant is that since the building is occupied by a sub lessee, the Municipality was right in declining the licence to the writ petitioner/legal heir of the original tenant, T.K.P.Abdul Hameed Haji. 7. We have heard Adv.Mahesh V. Ramakrishnan appeared for the appellant, Adv.M.M.Anto appeared for the writ petitioner, Sri.M.Sasidharan appeared for the Payyannur Municipality and perused the pleadings and material on record. 8. The discussion of facts made would make it clear that the issue for consideration is whether the legal heir of a tenant is entitled to renewal of licence on the death of the tenant without the production of an ownership certificate. The issue is actually covered by section 492(3) & (4) of the Kerala Municipality Act, 1994, dealing with general provisions regarding licences and permissions, which read 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 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. 4. Where the applicant seeking renewal of a licence or permission in WA.No.1351 OF 2020 6 respect of the trade or business licensed in the premises mentioned in subsection (3) is a person different from the original licensee or not the legal heir of the original licensee the consent of the owner shall be required.” 9. Therefore, one thing is clear that when 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 a 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. But fact remains by virtue of sub-section (4) as above, when the applicant seeking renewal of a licence or permission in respect of trade or business in the premises mentioned in sub-section (3) is a person different from the original licensee or not the legal heir of the original licensee alone, the consent of the owner shall be required. Here is a case where the appellant is not having a case that the person, who has approached the Municipality seeking renewal of the licence is not the legal heir of the original tenant, Sri.T.K.P. Abdul Hameed Haji. 10. But on the other hand the case projected appellant is that the rooms are occupied by a sub tenant. As held by the learned Single Judge the issue with respect to the occupation of a building by a sub tenant is a matter to be considered by the Rent Control Authority in terms of the provisions of the Act, 1965. Which thus means if and when a legal heir of a tenant approaches the Municipality for renewal of the licence after the death of the original tenant by virtue of sub-section (4) of section 492, and the rules 2011 WA.No.1351 OF 2020 7 the Municipality/secretary cannot insist that he or she should secure consent from the owner of the premises. This question was considered by this Court in **Marimuthu v. Director General of Police** [1999 (3) KLT 662 ] in the realm of a tenant holding over in the premises, after the expiry of the agreement period, and held that the Corporation cannot insist upon the tenant holding over for the production of written consent from the landlord for the purpose of the issuance of licence for conducting business and further held that a statutory tenant under the Kerala Buildings (Lease and Rent Control) Act, 1965, can be evicted only as per the provisions of the Act, 1965 and on the grounds enumerated therein. ## 11. To put it in a different manner, a tenant is defined under the Act, 1965 to mean any person by whom or whose account rent is payable for a building and includes; - (i) the heir or heirs of a deceased tenant, and - (ii) a person continuing in possession after the termination of the tenancy in his favour, but does not include a Kudikidappukaran as defined in the Kerala Land Reforms Act, 1963 (Kerala Act 1 of 1964), or a person placed in occupation of a building by its tenant, or a person to whom the collection of rents or fees in a public market, cart-stand or slaughterhouse or of rents for shops has been farmed out or leased by a Municipal Council, Municipal Corporation, Township Committee or Panchayat. 12. Therefore, on a reading of the provisions of the Kerala Municipality Act, 1994 and the provisions of the Act, 1965 extracted above, it WA.No.1351 OF 2020 8 is quite clear and evident that a legal heir of a deceased tenant approaching the Municipality for renewal of a license cannot be insisted upon for securing consent from the owner of the building. We are also of the view that since the Secretary of the Municipality is guided by the provisions provisions of Act 1994, the Secretary cannot insist the legal heir of the tenant to secure consent from the landlord of the building on the premise that, the landlord of the building has informed the Municipality that the building is sublet by the legal heir to a third person. We are also of the view that the Secretary of the Municipality has no power or authority to adjudicate the issue as to whether the legal heir of the original tenant has sublet the premises to any third person. 13. The issue with respect to the subletting and eviction is guided by the provisions of section 11(4)(i) of Act 1965 which specifies that the landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building, if the tenant after the commencement of the Act, without the consent of the landlord, transfers his right under the lease or sub-lets the entire building or any portion thereof, if the lease does not confer on him any right to do so and therefore the issue comes under the absolute jurisdiction of the Rent Control Authority under Act 1965. Which thus means the Municipal Secretary cannot assume the role of a rent controller and adjudicate the issue as to whether there was subletting of the premises and then consider as to whether the legal heir of the deceased WA.No.1351 OF 2020 9 tenant is entitled for renewal of the licence. The legal position being clear, we are of the considered opinion that the appellant has not made out any case for interference with the judgment, there being no error in the exercise of the discretionary jurisdiction by the learned single judge conferred under Article 226 of the Constitution of India. Needless to say, appeal fails, accordingly it is dismissed. Sd/- **S.MANIKUMAR CHIEF JUSTICE** Sd/- smv **SHAJI P.CHALY JUDGE**