Khairunneesa v. Kottakkal Municipality and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 14[TH] DAY OF JULY 2022 / 23RD ASHADHA, 1944 ``` ## **`WP(C) NO. 14138 OF 2022`** ## **`PETITIONER/S:`** ``` KHAIRUNNEESA, AGED 44 YEARS W/O. NOUSHAD KAVARODY, KARATT HOUSE, PANAMPUZHA ROAD, TIRURANGADI P.O, MALAPPURAM DISTRICT, PIN 676 306 ``` ``` BY ADVS. K.P.SUDHEER ANJALI MENON ``` ## **`RESPONDENT/S:`** - `1 THE KOTTAKKAL MUNICIPALITY REPRESENTED BY ITS SECRETARY, KOTTAKKAL P.O, KOTTAKKAL, MALAPPURAM DISTRICT, PIN 676 503` - `2 THE SECRETARY KOTTAKKAL MUNICIPALITY, KOTTAKKAL P.O, KOTTAKKAL, MALAPPURAM DISTRICT, PIN 676 503` - `3 RAHILA POOKKAYIL W/O. USMAN, RED ROSE, NEAR PARAPPIL TEMPLE, AREEKKAL, EDARIKKODE P.O, MALAPPURAM DISTRICT, PIN 676 501 BY ADVS. SHRI.NOUSHAD THOTTATHIL, SC, KOTTAKKAL MUNICIPALITY M.V.KISHORE KUMAR` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -2- W.P.(C). No. 14138 of 2022 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== W.P.(C) No. 14138 of 2022 ============================================================= Dated this the 14[th ] day of July, 2022 ## **JUDGMENT** The above writ petition is filed with following prayers: _“(a) Call for the records leading to Exhibits P1, P7 and P9 and quash the same by issuing a writ of certiorari or any other appropriate writ, order or direction._ _(b) direct the 2[nd] respondent to issue necessary licence to the petitioner without insisting for the written consent of the 3[rd] respondent and not to insist for the documents referred to in Exhibit P1 for issuing the licence to the petitioner._ _(c) direct the 2[nd] respondent to serve the decision referred to in Exhibit P7 order to the petitioner._ _(d) Issue such other writ, order or direction as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.” (sic)_ 2. The petitioner is in possession of two shop rooms bearing Door No. 31/375 and 376 of 2[nd] respondent -3- W.P.(C). No. 14138 of 2022 Municipality. The 3[rd] respondent is the owner of the premises in question. The petitioner is conducting a beauty parlour by name "Leo Women" in the premises in question. The 2[nd] respondent municipality insisted for the written consent of the 3[rd] respondent for issuing the license to the petitioner and issued Exhibit PI notice to the petitioner. According to the petitioner, admittedly, an ad interim injunction was passed by the Munsiff's Court, Parappanangadi against the 3[rd] respondent restraining her from forcefully evicting the petitioner from the premises in question. Exhibit P3 is the order passed by the civil Court. The 3[rd] respondent instituted RCP No. 18/2021 against the petitioner and other tenant who occupies a portion of the building under Section 11 (3), 11 (4) (ii) and (iii) of the Kerala buildings (Lease and Rent Control) Act, 1965. Exhibit P4 is the application and Exhibit P5 is the counter statement filed by the petitioner in the rent control proceedings. The petitioner -4- W.P.(C). No. 14138 of 2022 challenged Ext.P1 notice by filing an appeal before the Municipal Council and the Municipal Council without serving a decision on the petitioner issued Ext.P7 notice. The said proceedings were challenged before the Tribunal for Local Self Government Institutions, Thiruvananthapuram. Ext.P8 interim order was passed by the Tribunal. Subsequently, as per Ext.P9 order, the Tribunal dismissed the revision petition filed by the petitioner. According to the petitioner, Ext.P9 order passed by the Tribunal is against the dictum laid down by the Honourable Supreme Court in the decision reported in **Sudhakaran v. Corporation of Trivandrum and Another [2016 (3) KHC 803]** . 3. Heard the counsel for the petitioner, the counsel appearing for the Municipality and the counsel appearing for the 3[rd] respondent. -5- W.P.(C). No. 14138 of 2022 4. The counsel for the petitioner reiterated his contentions in the writ petition. The counsel for the Municipality submitted that the application can be processed only after getting the necessary documents. The 3[rd] respondent, on the other hand, submitted that the petitioner is not a tenant and she is not entitled to any orders from this Court. 5. This Court considered the contentions of the petitioner and the respondents. The point raised in this writ petition is covered by the judgment of the Apex Court in **Sudhakaran’s case (supra)** . It will be better to extract the relevant paragraph of the above judgment here: _8. 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_ -6- W.P.(C). No. 14138 of 2022 _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.”_ _(underline supplied)_ 6. In the light of the above judgment, 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. Admittedly, a rent control petition is filed against the petitioner as evident by Ext.P4. RCP 18 of 2021 is pending before the Rent Control Court, Parappanangadi, in which the petitioner is the 2[nd] respondent. Moreover, Ext.P2 suit (OS No.230 of 2020) is also pending before the Munsiff’s Court, Parappanangadi. In such circumstances, according to me, nonavailability of the consent from the landlord ought not to have been a reason for rejecting -7- W.P.(C). No. 14138 of 2022 the application for obtaining licence. Therefore, this writ petition is to be allowed. Therefore, this writ petition is allowed in the following manner: ## 1. Exts.P1, P7 and P9 are set aside. 2. There will be a direction to the 2[nd] respondent to consider the application for D&O licence, without insisting the consent from the landlord, if the application is otherwise in order. sd/- **P.V.KUNHIKRISHNAN JUDGE** das -8- W.P.(C). No. 14138 of 2022 ## **`APPENDIX OF WP(C) 14138/2022`** ``` PETITIONER EXHIBITS Exhibit P1 ``` ``` TRUE COPY OF LETTER NO HI-16539/2020 DATED 30-12-2020 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. ``` ``` Exhibit P2 ``` - `TRUE COPY OF PLAINT DATED 15-12-2020 IN O.SNO. 230/2020 ON THE FILE OF MUNISIFF'S COURT, PARAPPANANGADI` - `Exhibit P3 TRUE COPY OF I.ANO.2/2020 IN O.S NO. 230/2020 ON THE FILE OF THE MUNSIFF'S COURT, PARAPPANANGADI AND THE ORDER PASSED THEREON` - `Exhibit P4 TRUE COPY OF RCP NO 18/2021 FILED BY THE 3RD RESPONDENT BEFORE THE RENT CONTROL COURT, PARAPPANANGADI` ``` Exhibit P5TRUE COPY OF COUNTER STATEMENT DATED 16-02-2022 FILED BY THE PETITIONER IN RCP NO 18/2021 ON THE FILE OF THE RENT CONTROL COURT, PARAPPANANGADI ``` ``` Exhibit P6TRUE COPY OF ORDER DATED 12-01-2021 IN APPEAL NO. 10/2021 ON THE FILE OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM ``` ``` Exhibit P7TRUE COPY OF NOTICE NO H1-16539/2020 DATED 19-01-2022 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. ``` - `Exhibit P8` ``` TRUE COPY OF ORDER DATED 22-01-2022 IN I.ANO. 88/2022 IN REVISION PETITION NO. 5/2022 ON THE FILE OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT ``` ``` INSTITUTIONS, THIRUVANANTHAPURAM ``` ``` Exhibit P9TRUE COPY OF ORDER DATED 11-4-2022 IN RP NO. 5/2022 PASSED BY TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. ```