K.V. VINCENT v. SECRETARY, VAZHATHOPPU GRAMA PANCHAYAT, VAZHATHOPPU GRAMA PANCHAYAT AND OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 08TH DAY OF AUGUST 2019 / 17TH SRAVANA, 1941** ## **WP(C).No.35883 OF 2018(I)** ## **PETITIONER/S:** **K.V. VINCENT, AGED 50 YEARS S/O.VARKEY, KALAYATHUMPARA PUTHENPURAYIL, MANIYARANKUDY.P.O., MANIYARANKUDY, IDUKKI DISTRICT.** **BY ADV. SRI.PHILIP J.VETTICKATTU** ## **RESPONDENT/S:** |**1**|**SECRETARY, VAZHATHOPPU GRAMA PANCHAYAT**| |---|---| ||**THADIYAMPADU.P.O., VAZHATHOPPU,**| ||**IDUKKI-685 602.**| |**2**|**VAZHATHOPPU GRAMA PANCHAYAT,**| ||**THADIYAMPADU P.O., VAZHATHOPPU,**| ||**IDUKKI-685 602, REPRESENTED BY ITS SECRETARY.**| |**3**|**SUMATHI, D/O.ACHUTHAN, MATTATHU HOUSE,**| ||**IDUKKI COLONY P.O., CHERUTHONI,**| ||**IDUKKI-685 602.**| |**4**|**MOBY,S/O.BABY, CHAKKALAYIL HOUSE,**| ||**IDUKKI COLONY P.O., CHERUTHONI,**| ||**IDUKKI-685 602.**| |**5**|**ANEESH KUMAR, S/O.BHASKARAN,**| ||**PAPPALIYIL HOUSE, IDUKKI COLONY P.O.,**| ||**CHERUTHONI, IDUKKI-685 602.**| |**6**|**ANUMOLE SURAJ, D/O.BHASKARAN,**| ||**PAPPADIYIL HOUSE, IDUKKI COLONY P.O.,**| ||**IDUKKI-685 602.**| -2- W.P.(C). No. 35883 of 2018 - **7 ARAVIND, S/O.SOMAKUMARAN, MATTATHIL HOUSE, IDUKKI COLONY P.O., IDUKKI-685 602.** - **8 AMMINI, W/O.BHASKARAN, PAPPADIYIL HOUSE, IDUKKI COLONY P.O., IDUKKI-685 602.** - **9 A.SOMAKUMARAN, S/O.ACHUTHAN, MATTATHIL HOUSE, IDUKKI COLONY P.O., IDUKKI-685 602.** **BY ADVS. SRI.JIMMY GEORGE (THADATHIL) SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- W.P.(C). No. 35883 of 2018 ## **JUDGMENT** The petitioner, who is stated to be in possession of room Nos.X/1648, X/1649, X/1650 and X/1651 of Vazhathoppu Grama Panchayat along with 9.71 Ares in Block No.43, Re.Sy.No.116 (Old Sy.No.161/1) of Idukki Village, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the 1[st] respondent to issue a certificate of licence for the period 2018-2019 in respect of room No.X/1651. The petitioner has also sought for a writ of mandamus commanding the 1[st] respondent to issue a certificate of licence for the period 2018-2019 in respect of room No.X/1651, without insisting for any consent from the lessor/legal representatives of the lessor. 2. On 02.11.2018, when this writ petition came up for consideration, this Court issued urgent notice by speed post to respondents returnable in three weeks. This Court granted an interim direction to the 1[st] respondent to accept licence fee tendered by the petitioner in respect of the room No.X/1651 and issue a provisional licence for a period of three months. The said interim order, which was extended from time to time, -4- W.P.(C). No. 35883 of 2018 was extended for a period of two months on 03.06.2019. 3. Heard the learned counsel for the petitioner, the learned counsel for respondents 1 and 2 and also the learned counsel appearing for the 9[th] respondent. Despite service of notice, none appears for respondents 3 to 8. 4. The grievance of the petitioner, which is highlighted in this writ petition, is the inaction on the part of the 1[st] respondent, who is the Secretary of the 2[nd] respondent Grama Panchayat, in granting renewal of trade license, despite submission of an application for renewal, after complying with the statutory requirements. According to the petitioner, the 1[st] respondent insisted consent letter from the landlord/legal heirs for renewal of trade licence. 5. 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 provisions of the said Act, on the grounds enumerated therein. Since the possession of the tenant is lawful, the landlord is not entitled -5- ## W.P.(C). No. 35883 of 2018 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 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 -6- ## W.P.(C). No. 35883 of 2018 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.” 6. 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]** . 7. 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 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 -7- W.P.(C). No. 35883 of 2018 premises by the tenant as per the tenancy agreement. 8. 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.” 9. In view of the law laid down in the decisions referred to supra, conclusion is irresistible that on an application for renewal of trade licence, the 1[st] respondent, who is the Secretary of the 2[nd] respondent Grama Panchayat cannot insist consent letter of the landlord as a condition precedent for consideration of such an application. 10. The learned counsel for the petitioner would submit that the petitioner has already made an application for -8- ## W.P.(C). No. 35883 of 2018 renewal of trade licence for the year 2019-2020, after remitting the requisite fee, which is still pending consideration, and the petitioner is enjoying benefit of a deemed licence. As already noticed, the relief sought for in this writ petition is concerning renewal of trade licence for the period 2018-2019. In such circumstances, without expressing anything on the aforesaid application, this writ petition is disposed of by directing the 1[st] respondent to issue a certificate of licence to the petitioner for the period 2018-19, in respect of room No.X/1651, if not already issued, within two weeks from the date of receipt of a certified copy of this judgment. ## **Sd/-** **ANIL K.NARENDRAN JUDGE** das -9- W.P.(C). No. 35883 of 2018 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REGISTERED LEASE DEED DATED 18.02.2016 EXECUTED BY THE LESSOR IN FAVOUR OF THE PETITIONER.** - **EXHIBIT P2 TRUE COPY OF THE D & O LICENSE ISSUED BY THE PANCHAYAT WITH RESPECT TO THE STUDY CENTRE OF THE PETITIONER FOR THE PERIOD 25.01.2017 TO 31.03.2017.** - **EXHIBIT P3 TRUE COPY OF THE APPLICATION FOR LICNECE SUBMITTED BY THE PETITIONER ON 01.03.2018 FOR THE PERIOD 2018-2019.** **EXHIBIT P4 TRUE COPY OF THE LETTER DATED 09.10.2018 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.** - **EXHIBIT P5 TRUE COPY OF THE LICENSE ISSUED BY THE 1ST RESPONDENT PANCHAYAT TO THE OTHER ROOMS FOR THE PERIOD 2018-2019.** - **EXHIBIT P6 TRUE COPY OF THE INTERIM INJUNCTION ORDER DATED 03.02.2017.** - **EXHIBIT P7 TRUE COPY OF THE COMMON ORDER DATED 24.06.2017 PASSED BY THE MUNSIFF COURT.** **EXHIBIT P8 TRUE COPY OF THE ORDER DATED 06.07.2017 IN I.A.NO.653/2017 IN CMA NO.10.2017.** **EXHIBIT P9 TRUE COPY OF THE ORDER DATED 27.09.2018 IN O.S.NO.97/2018.** **EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 29.05.2017 IN WP(C)NO.17697/2017.**