Muhammed Shihab and Muhammed Musthafa v. Perinthalmanna Municipality and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **SATURDAY, THE 28[TH] DAY OF OCTOBER 2023/6TH KARTHIKA, 1945** **WP(C) NO. 778 OF 2023** ## **PETITIONERS:** - **1 MUHAMMED SHIHAB AGED 29 YEARS S/O. AYOOB, AGED 29 YEARS, AZHUVALAPPIL, ANGADIPPURAM AMSOM DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN - 679321** - **2 MUHAMMED MUSTHAFA AGED 26 YEARS S/O. ABOOBACKER, AGED 26 YEARS, POTTICHIRA HOUSE, PATHAIKKARA AMSOM, KUNNAPPALLY DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN – 679322** ## **BY ADV K.RAKESH** ## **RESPONDENTS:** - **1 THE PERINTHALMANNA MUNICIPALITY PATHAIKKARA, PERINTHALMANNA, MALAPPURAM DISTRICT, PIN - 679 322, REPRESENTED BY ITS SECRETARY, PIN - 679322** - **2 THE SECRETARY PERINTHALMANNA MUNICIPALITY, PATHAIKKARA, PERINTHALMANNA, MALAPPURAM DISTRICT, PIN - 679322** - **3 ABDUPPA AGED 72 YEARS S/O. MARAKKAR, PARAKKAL HOUSE, ELAMKULAM AMSOM, CHERUKARA DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN - 679340** - **4 ABDUL SAMAD AGED 70 YEARS S/O. MARAKKAR, PARAKKAL HOUSE, ELAMKULAM AMSOM, CHERUKARA DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN - 679340** W.P.(C) No.778/2023 : 2 : - **5 ABDUL AZEEZ AGED 58 YEARS S/O. MARAKKAR, PARAKKAL HOUSE, ELAMKULAM AMSOM, CHERUKARA DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN - 679340** - **6 ABDUL SALAM AGED 56 YEARS S/O. MARAKKAR, PARAKKAL HOUSE, ELAMKULAM AMSOM, CHERUKARA DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN - 679340** - **7 HAFSATH AGED 54 YEARS** - **W/O. MUHAMMED VAPPUTTY, KANAKKANATH HOUSE, PATHAMKULAM AMSOM DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN - 679340** - **8 HABEEDULLA AGED 52 YEARS S/O. PARAKKAL KUNJAYAMMU, ELAMKULAM AMSOM, CHERUKARA DESOM, CHERUKARA P.O., PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN - 679340** - **9 SALEENA AGED 50 YEARS D/O. PARAKKAL KUNJAYAMMU, ELAMKULAM AMSOM, CHERUKARA DESOM, CHERUKARA P.O., PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN - 679340** - **10 HASEENA AGED 48 YEARS D/O. PARAKKAL KUNJAYAMMU, ELAMKULAM AMSOM, CHERUKARA DESOM, CHERUKARA P.O., PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN - 679340** - **11 BUSHARA AGED 46 YEARS D/O. PARAKKAL KUNJAYAMMU, ELAMKULAM AMSOM, CHERUKARA DESOM, CHERUKARA P.O., PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN - 679340** - **12 SUHARA AGED 44 YEARS D/O. PARAKKAL KUNJAYAMMU, ELAMKULAM AMSOM, CHERUKARA DESOM, CHERUKARA P.O., PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN - 679340** W.P.(C) No.778/2023 : 3 : **13 ALI ASHIQUE AGED 32 YEARS S/O. PARAKKAL KUNJAYAMMU, ELAMKULAM AMSOM, CHERUKARA DESOM, CHERUKARA P.O., PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN - 679340 14 PATHUMMA AGED 72 YEARS W/O. PARAKKAL KUNJAYAMMU, ELAMKULAM AMSOM, CHERUKARA DESOM, CHERUKARA P.O., PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN – 679340** **BY ADVS. K.VIDYASAGAR K.M SATHYANATHA MENON K.M MOHAMAD IRSHAD N.P.(K/902/2003) SRI.P.C.SASIDHARAN, SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.778/2023 : 4 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## W.P.(C) No.778 of 2023 ````````````````````````````````````````````````````````````` _Dated this the 28[th] day of October, 2023_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The petitioners, who are running a footwear business in Shop Room No.5/498 (Old Shop Room No.4/670) of the Perinthalmanna Municipality, seek to set aside Ext.P7 communication of the Secretary to the Municipality and to direct the 2[nd] respondent-Secretary to consider Ext.P1 and issue D&O licence to the petitioners without insisting for fresh consent of all the landlords as they are in occupation of the tenanted premises from 2016. 2. The petitioners state that on 02.06.2016, the 6[th] respondent, who is one of the landlords, had executed a lease deed for 11 months in favour of the 1[st] petitioner and the petitioners have been conducting business ever since W.P.(C) No.778/2023 : 5 : 2016. The shop had a licence at that time, which was in the name of the 6[th] respondent. There is a stock of approximately ₹50 lakhs inside the shop. The rent agreement was extended from time to time. In fact, the party respondents had informed the petitioners that they had authorised one among them for executing the agreement with the petitioners. 3. When the petitioners applied for D&O licence on 15.12.2022 along with the Consent issued by the 4[th] respondent, the 2[nd] respondent refused to consider the application stating that the signature of all landlords is necessary in the Consent. 4. The petitioners thereupon filed OS No.4/2023 in the Munsiff's Court, Perinthalmanna seeking an order restraining the party respondents from forcefully evicting the petitioners. In IA No.2/2023, the Munsiff's Court granted a temporary injunction on 04.01.2023 against forceful eviction. When the petitioners approached the 2[nd] respondent again seeking licence, the 2[nd] respondent refused to grant time to W.P.(C) No.778/2023 : 6 : the petitioners and ordered to stop the business within 24 hours. It is aggrieved by Ext.P7 communication that the writ petition has been filed. 5. The counsel for the petitioners argued that the petitioners are tenants in possession on the basis of a valid rent deed since the year 2016. The petitioners had executed agreement with one of the co-owners. Ext.P3 is the Consent issued. Therefore, respondents 1 and 2 are not justified in ordering closure of the business. 6. The counsel for the petitioners relied on the judgment of the Apex Court in _**Sudhakaran v. Corporation of Thiruvananthapuram** [(2016) 14 SCC 263]_ to contend that under Section 492(3) of the Kerala Municipalities Act, a Consent of the owner is needed only for obtaining licence for the first time. The counsel for the petitioners also relied on a judgment of this Court in _**Jayaprakash P.S. v. Kozhikode Corporation and others** [2021 (3) KLT 127]_ and argued that application for licence by one among the co-owners of premises cannot be rejected for the reason that said co- W.P.(C) No.778/2023 : 7 : owner has to produce consent letters of remaining co-owners of the premises. 7. The counsel for the petitioners pointed out that in view of the judgment of this Court in _**Shalif Mohammed Nahas v. Kochi Municipal Corporation and others** [2019 (3) KLT 721]_ in an order of closure of any trade or business or any premises invoking Section 532(5), the Secretary has to record his satisfaction as to the necessity for an immediate action for closure of any trade or business. Therefore, the order of the 2[nd] respondent without recording such satisfaction to close down the business, is highly arbitrary and unsustainable. 8. Respondents 1 and 2 resisted the writ petition filing counter affidavit. Respondents 1 and 2 stated that on noticing that the petitioners are conducting business in the shop without a valid and current licence, the Municipality issued notice directing the petitioners to obtain licence as provided under law. The petitioners applied for licence but they had not submitted consent letter of owners. The licence W.P.(C) No.778/2023 : 8 : applied for is for a fresh licence, for which the petitioners have to obtain consent of the owners of the building. 9. Respondents 3 and 4 resisted the writ petition filing counter affidavit. Respondents 3 and 4 submitted that there was no agreement executed between the 4[th] respondent and the 2[nd] petitioner. On 20.12.2022, the petitioners approached them and said that to obtain D&O licence from the 1[st] respondent-Municipality, consent letter signed by all the landlords is necessary. Respondents 3 and 4 signed a blank stamp paper as requested by the petitioners for the said purpose. However, some landlords were not willing to sign the consent letter and hence the document could not be prepared. Ext.P2 agreement and Ext.P3 consent letter was prepared using the said blank papers. The original alleged leased deed of 02.06.2016 has expired. Therefore, the petitioners are not entitled to get D&O licence. 10. The 5[th] respondent filed a counter affidavit. On the orders of the Secretary of the Municipality, the shop room was locked and sealed by the Municipality on 09.01.2023. W.P.(C) No.778/2023 : 9 : Suppressing the above fact, the petitioners obtained interim order from this Court on 11.01.2023 and on the basis of the interim order, the shop rooms were opened illegally. 11. The 5[th] respondent pointed out that even as per the pleadings, the alleged lease deed executed on 02.06.2016 was by the 1[st] petitioner. Another agreement was executed by the 2[nd] petitioner with the 4[th] respondent on 08.12.2022. None of the owners of the property and building including the 5[th] respondent had authorised one among them for executing agreement. None of them had ever consented to execute any lease deed on behalf of them by the 4[th] respondent. The writ petition is therefore without any merit and is liable to be dismissed. 12. I have heard the learned counsel for the petitioners, the learned Standing Counsel representing respondents 1 and 2 and the respective counsel appearing for respondents 3 to 5. 13. The petitioners would point out that they have executed Ext.P2 agreement dated 08.12.2022 with the 4[th] W.P.(C) No.778/2023 : 10 : respondent, for tenancy. The petitioners have Ext.P3 Consent dated 24.12.2022 issued by the 4[th] respondent for starting the business. As there is a valid tenancy agreement and a valid Consent issued by one of the co-owners of the property, the Municipality is bound to issue licence. Section 492(3) of the Kerala Municipalities Act, 1994 provides that 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 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. 14. In the case of the petitioners, the claim is that the 4[th] respondent, who is one of the co-owner, has executed Ext.P2 agreement of tenancy. The 4[th] respondent has filed a counter affidavit stating that the 4[th] respondent has not executed Ext.P2 agreement on his own. The said agreement was prepared by the 2[nd] petitioner using blank signed stamp papers obtained for the purpose of grant of consent. W.P.(C) No.778/2023 : 11 : 15. Assuming that Ext.P2 agreement is valid, even then, Ext.P3 Consent cannot be treated as a valid Consent since it has not been signed by all the landlords. Section 492(3) of the Act, 1994 provides that when an application for a licence is made for the first time, a written consent of the owner of the premises should be produced. Naturally, when there are more than one owner to the building, consent of all the owners is necessary. 16. The argument of the petitioners based on the judgment of the Apex Court in _**Sudhakaran**_ (supra) is unsustainable because the said judgment refers to renewal of a tenant's licence. Here, the petitioners have applied for a new D&O licence. It is not a case of renewal. 17. The petitioners have a case that when the lease deed was executed, there was a licence for the shop in the name of the 6[th] respondent. When the petitioners make an application for a D&O licence, the application cannot be treated as an application for renewal of licence issued to the 6[th] respondent. The petitioners have no case that the licence W.P.(C) No.778/2023 : 12 : issued earlier to the 6[th] respondent was transferred to the name of the petitioners at any point of time. The Secretary had issued notice to the petitioners pointing out that they are running the business without licence. The petitioners were required to obtain licence. 18. The petitioners have not obtained licence complying with statutory formalities. It is in such circumstances that Ext.P7 communication was issued directing to stop the business. Ext.P7 is a speaking order containing reasons. Therefore, the judgment in _**Shalif Mohammed Nahas**_ (supra) relied on is of no assistance to the petitioners. The writ petition is therefore without any merit and hence dismissed. Sd/- **N. NAGARESH, JUDGE** aks/21.10.2023 W.P.(C) No.778/2023 : 13 : ## **APPENDIX OF WP(C) 778/2023** ## **PETITIONER'S EXHIBITS** - **Exhibit P1 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT ON 15-12-2022** - **Exhibit P2 TRUE COPY OF THE AGREEMENT EXECUTED BETWEEN THE 2ND PETITIONER AND THE 4TH RESPONDENT DATED 8-12-2022** - **Exhibit P3 TRUE COPY OF THE CONSENT LETTER ISSUED BY THE 4TH RESPONDENT IN FAVOUR OF THE 2ND PETITIONER DATED, 9-12-2022** - **Exhibit P4 TRUE COPY OF THE NOTICE DATED 24-122022 ISSUED BY THE 2ND RESPONDENT** - **Exhibit P5 A TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONERS TO EXHIBIT P4 DATED 7- 1-2023** - **Exhibit P6 TRUE COPY OF THE RECEIPT ACKNOWLEDGING THE SUBMISSION OF EXHIBIT P5 DATED 7- 1-2023** - **Exhibit P7 A TRUE COPY OF THE NOTICE DATED 7-12023 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONERS** ## **RESPONDENT'S EXHIBITS** - **Exhibit R5(a) A true copy of the Authorization letter dated 09.01.2023 issued by the Secretary of Perinthalmanna Municipality authorizing the Health Inspector, Grade-I, namely, Sri.Dileep Kumar to close the shop room** **Exhibit R5(b) True Copy of relevant news item published in "Malayala Manorama" daily dated 10.01.2023** **Exhibit R5(c) A true copy of the plaint submitted by the petitioners as O.S No.4/2023 on the files of the Munsiff Court, Perinthalmanna** W.P.(C) No.778/2023 ## : 14 : **Exhibit R5(d) A true copy of the ad interim order of injunction dated 05.01.2023 in I.A No.2/2023 in OS No.4/2023 on the file of the Munsiff Court, Perinthalmanna Exhibit R5(e) A true copy of the information received by the 7th respondent from the Public Information Officer, 1st respondent Municipality dated 17.11.2022** - **Exhibit R5(f) A true copy of the complaint submitted by 7th respondent to the Municipality dated 21.11.2022** - **Exhibit R5(g) A true copy of the receipt issued on receipt of Ext.R5[f] issued by the Municipality** - **Exhibit R5(h) A true copy of the complaint submitted by this respondent to the Secretary of the Municipality dated 21.11.2022** - **Exhibit R5(i) A true copy of the receipt issued by the Municipality dated 21.11.2022** - **Exhibit R5(j) A true copy of the notice issued by the Municipality to the 2nd petitioner dated 21.11.2022 and obtained under the Right to Information Act** - **Exhibit R5(k) A true copy of the petition alleged to have been singed and submitted by Abdul Salam dated 02.12.2022 to the Secretary of the Municipality obtained through RTI.** - **Exhibit R5(l) A true copy of the notice dated 07.12.2022 issued by the Municipality to the 2nd petitioner** - **Exhibit R5(m) A true copy of the reply received under the Right to information Act from the Public Information office of 1st respondent municipality to the 6th respondent dated 18.1.2023 [ wrongly shown as 18.01.2022 ]**