K.M. Mathew v. Pala Municipality and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY,THE 03RD DAY OF APRIL 2019 / 13TH CHAITHRA, 1941** ## **WP(C).No. 9474 of 2019** ## **PETITIONER:** **K.M.MATHEW, AGED 66 YEARS, KUZHINJILIL HOUSE, MEENACHIL TALUK, KURUMANNU.P.O, KOTTAYAM DISTRICT, PIN-686651.** **BY ADVS. SRI.MATHEW JOHN (K) SRI.ABY J AUGUSTINE SRI.MATHEW DEVASSI** ## **RESPONDENTS:** - **1 THE PALA MUNICIPALITY MUNICIPAL OFFICE,PALA REPRESENTED BY ITS SECRETARY, PIN-686575.** - **2 THE SECRETARY, MUNICIPAL OFFICE,PALA,PIN-686575.** - **3 LINTO JAMES, KATTAKAYAM HOUSE,PALA, PIN-686575.** **BY ADVS. SRI.SUJITH MATHEW JOSE, SC, PALA MUNICIPALITY SRI.ABRAHAM GEORGE JACOB SMT.HAZEENA ABOOBACKER SRI.JIBU P THOMAS** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 9474 of 2019** -2- ## **JUDGMENT** The petitioner, who is stated to be a tenant in occupation of a shop room in the ground floor of a shopping complex owned by the 3[rd] respondent, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Exts.P5 and P7 communications issued by the 2[nd] respondent, who is the Secretary of the 1[st] respondent Municipality whereby the petitioner is informed that the application made for D&O licence for the year 2019-20 can be considered only on production of consent letter. According to the petitioner, the consent letter of one Bindhu was produced before the 2[nd] respondent as sought for in Ext.P5. Thereafter, by Ext.P7 communication, the petitioner was informed that he has to obtain consent letter from the landlord for consideration of the application for D&O Licence. Feeling aggrieved by Exts.P5 and P7, the petitioner is before this Court in this writ petition. The petitioner has also sought for a declaration that the 2[nd] respondent is bound to grant trade licence to **WP(C).No. 9474 of 2019** -3- the petitioner pursuant to Ext.P3 application, without insisting for a consent letter from the 3[rd] respondent landlord. 2. On 27.03.2019, when this writ petition came up for admission, the learned Standing Counsel took notice on admission for respondents 1 and 2. Urgent notice by special messenger was ordered to the 3[rd] respondent, returnable by 03.04.2019. 3. Heard the learned counsel for the petitioner, the learned Standing Counsel for Pala Municipality, representing respondents 1 and 2, and also Sri.Abraham George Jacob, the learned counsel for the 3[rd] respondent. 4. As submitted by the learned counsel for the petitioner, the petitioner has already produced consent letter of one Bindhu, as sought for in Ext.P5. Therefore, the sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P7 communication issued by the 2[nd] respondent, who is the Secretary of the Municipality, whereby the petitioner is **WP(C).No. 9474 of 2019** -4- directed to obtain consent letter from the 3[rd] respondent landlord for consideration of the application made by the petitioner for D&O licence. 5. The learned counsel for the 3[rd] respondent would not dispute the fact that the petitioner is a person, who has been inducted to the shop room in question pursuant to execution of the decree in O.S. No.31 of 2002, after Ext.P1 order of this Court dated 23.10.2018 in CRP No.162 of 2017. However, the learned counsel would point out that the petitioner is occupying the shop room without payment of rent and executing a rent deed. 6. The learned counsel for the petitioner would submit that the petitioner is prepared to execute a rent deed and he is also prepared to pay the rent. The said submission is recorded. 7. In **Marimuthu v. Director General of Police** **[1999 (3) KLT 662]** , a Division Bench of this Court held that, a statutory tenant under the Kerala Buildings (Lease and Rent Control) Act can be evicted only as per the **WP(C).No. 9474 of 2019** -5- provisions of the said Act, on the grounds enumerated therein. Since the possession of the tenant is lawful, the landlord is not entitled to withhold his consent for the conduct of the business for which the premises were given on rent. Paragraph 16 of the said judgment reads thus; “16. A statutory tenant under the Kerala Buildings (Lease and Rent Control) Act can be evicted only as per the provisions of the said Act, on the grounds enumerated therein. Since the possession of the tenant is lawful, the landlord is not entitled to withhold his consent for the conduct of the business for which the premises were given on rent. In the instant case, we are satisfied that the landlord is purposefully and with malafide intention withholding consent inspite of the directions from this court. Under such circumstances, the Corporation also cannot insist upon production of written consent from the landlord for the purpose of issuance of licence for the conduct of business in the premises in question. For carrying on business in readymade dresses a licence issued under Sec.492 of the Kerala Municipality Act is necessary. As on date, the petitioner is not having any licence to carry on such business. A person in occupation can be allowed to carry on a trade or business which requires a licence, only after obtaining such licence. In view of **WP(C).No. 9474 of 2019** -6- the facts and circumstances of the case as above, we direct the Corporation of Thiruvananthapuram to consider Ext.P7 application for licence without insisting upon the production of a written consent of the owner of the premises and pass appropriate orders after giving an opportunity to the petitioners or their representative or their advocate, within two weeks from today. The petitioners are at liberty to file any further documents, if need be, before the Corporation authorities. The Corporation shall pass a reasoned order after hearing the necessary parties and communicate the same to the petitioners within two weeks from today. We make it clear that till such time the petitioners shall not conduct the textile business in the premises in question. Ext.P8 order of the Corporation of Thiruvananthapuram is set aside and Ext.P7 is restored to file for fresh consideration as directed above.” The judgment of this Court in **Marimuthu's case supra** was affirmed by the Apex Court in **Sudhakaran v. Corporation of Trivandrum [2016 (3) KLT 247]** . 8. In **Sudhakaran's case supra** , the Apex Court held that consent of the landlord is not required by the tenant for renewal of municipal license to run a shop. Even in the case of application for obtaining license for **WP(C).No. 9474 of 2019** -7- 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 as per the tenancy agreement. 9. The law laid down by the Apex Court in the aforesaid decision has been followed by a Division Bench of this Court in **Babu v. Vijayan [2019 (1) KLT 684]** . Paragraph 8 of the said decision reads thus; “8. On the above legal issue, we may benefit by referring to the pronouncement in **Sudhakaran v. Corporation of Trivandrum and another** reported in **[(2016) 14 SCC 263]** where the Supreme Court on the issue of the renewal of a trade licence, stated that a tenant cannot be deprived of running a lawful business merely because the landlord withheld his consent, and further that, a valid tenancy itself has implied authority of the landlord for legitimate use of the premises by the tenant.” 10. Viewed in the light of the law laid down in the decisions referred to _surpa_ , the reasoning of the 2[nd] **WP(C).No. 9474 of 2019** -8- respondent in Ext.P7 that the petitioner has to obtain the consent of the landlord for consideration of Ext.P3 application for D&O licence cannot be sustained. 11. In such circumstances, Ext.P7 communication will stand set aside and the 2[nd] respondent is directed to reconsider Ext.P3 application made by the petitioner for D&O licence, in respect of the shop room owned by the 3[rd] respondent, with notice to the petitioner and also to the 3[rd] respondent, taking note of the law laid down in the decisions referred to _supra_ . A decision in this regard shall be taken, as expeditiously as possible, at any rate, within a period of three weeks from the date of receipt of a certified copy of this judgment. Sd/- **ANIL K. NARENDRAN JUDGE** bpr **WP(C).No. 9474 of 2019** -9- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER IN CRP 162/2017 OF THIS HON'BLE HIGH COURT DATED 23.10.2018** **EXHIBIT P2 TRUE COPY OF THE ORDER OF SUB COURT PALA IN EP. NO.04/2012 IN OS 31/2002.** **EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED 11.2.2019 SUBMITTED BY THE PETITIONER BEFORE THE MUNICIPAL COUNSEL/CORPN.** **EXHIBIT P4 TRUE COPY OF THE AFFIDAVIT DATED 11.2.19 SIGNED BY THE PETITIONER.** **EXHIBIT P5** **TRUE COPY OF THE NOTICE NO.H3-1603/19 DATED 19.2.2019 ISSUED BY THE MUNICIPAL OFFICE TO THE PETITIONER** **EXHIBIT P6 TRUE COPY OF THE PETITION DATED 6.3.2019 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT SEEKING A REVIEW OF EXT.P5 INTIMATION.** **EXHIBIT P7 TRUE COPY OF THE INTIMATION NO.H31603/19 DATED 15.3.2019 ISSUED BY THE MUNICIPAL OFFICE TO THE PETITIONER.** **RESPONDENTS' EXHIBITS: NIL**