P. C. Alexander v. Mavelikkara Municipality & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **FRIDAY, THE 20TH DAY OF JUNE 2014/30TH JYAISHTA, 1936** ## **WP(C). No.31325 of 2011 (M)** **----------------------------** ## **PETITIONER(S):** **--------------------------** **P.C.ALEXANDER, SON OF CHANDA PILLAI, PALAMOOTTIL KOLLASSERIL HOUSE, NADAKKAVU, MAVELIKKARA - 690 101.** **BY ADVS.SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR SRI.K.JAGADEESH** ## **RESPONDENT(S):** - **----------------------------** **1. THE MAVELIKKARA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MAVELIKKARA - 690 101.** **2. MAVELIKKARA MUNICIPAL COUNCIL,** - **REPRESENTED BY ITS CHAIRMAN, MAVELIKKARA - 690 101.** **3. P.N.SIVADASAN,S/O.NANU, DIVYADAS BHAVAN, ARUNOOTTIMANGALAM MURI, THAZHAKKARA VILLAGE, MAVELIKKARA - 690 102.** **R1, R2 BY ADV. SRI.RASHEED.C, SC, MAVELIKKARA MUNICIPALITY R3 BY ADV. SRI.MILLU DANDAPANI BY SRI.RASHEED C.NOORANAD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C). No.31325 of 2011 (M)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXHIBIT P1:- TRUE PHOTOSTAT COPY OF THE LEAVE AND LICENCE AGREEMENT, DATED 1/12/2006.** - **EXHIBIT P2:- TRUE PHOTOSTAT COPY OF THE LICENCE ISSUED BY THE IST RESPONDENT IN FAVOUR OF THE 3RD RESPONDENT FOR THE YEAR 2007-08.** - **EXHIBIT P3:- TRUE PHOTOSTAT COPY OF THE INTIMATION OF THE IST RESPONDENT DATED 8/2/2011.** - **EXHIBIT P4:- TRUE PHOTOSTAT COPY OF THE APP FILED BY THE 3RD RESPONDENT DATED 16/2/2011.** - **EXHIBIT P5:- TRUE PHOTOSTAT COPY OF THE PROBHIBITORY ORDER OF THE IST RESPONDENT DATED 3/3/2011.** - **EXHIBIT P6:- TRUE PHOTOSTAT COPY OF THE ORDER IN IA NO.394/2011 IN OS NO.62/2011 OF THE SUB-COURT,MAVELIKKARA DATED 12/4/2011.** - **EXHIBIT P7:- TRUE PHOTOSTAT COPY OF THE NOTICE OF THE 2ND RESPONDENT ADDRESSED TO THE 3RD RESPONDENT DATED 11/4/2011.** - **EXHIBIT P8:- TRUE PHOTOSTAT COPY OF THE ORDER OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, DATED 20/7/2011.** - **EXHIBIT P9:- TRUE PHOTOSTAT COPY OF THE JUDGMENT IN OPC 2573/2011 DATED 28/9/2011.** - **EXHIBIT P10:- TRUE PHOTOSTAT COPY OF THE ORDER OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS DATED 10/11/2011.** ## **RESPONDENTS' EXHIBITS:-** - **EXT.R3(A):PHOTOCOPY OF LICENCE NO.48/VI/12-13 DATED 22.5.2012 ISSUED TO THE THIRD RESPONDENT BY THE FIRST RESPONDENT.** - **EXT.R3(B):PHOTOCOPY OF LICENCE NO.207/VI/11-12 DATED 2.12.2011 ISSUED TO THE THIRD RESPONDENT BY THE FIRST RESPONDENT.** - **EXT.R3(C):PHOTOCOPY OF IDENTITY CARD BEARING REGISTRATION NO.21312036000067 ISSUED TO THE 3RD RESPONDENT BY FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA.** - **EXT.R3(D):PHOTOCOPY OF REGISTRATION CERTIFICATE DATED 3.4.2012 BEARING REGISTRATION NO.21312036000067 ISSUED TO THE 3RD RESPONDENT BY FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA.** ## **KRJ** /True Copy/ P.A to Judge 'C.R' ## A.V.RAMAKRISHNA PILLAI, J. = = = = = = = = = = = = = = = W.P(C) No.31325 of 2011 = = = = = = = = = = = = = = = Dated this the 20[th] day of June, 2014 ## JUDGMENT Ext.P10 order passed by the Tribunal for Local Self Government Institutions is under challenge in this writ petition. 2. The petitioner is the owner of a building bearing Door No.VI/142 of the Mavelikara municipality which was given to the 3[rd] respondent for conducting fruit/vegetable business by a deed of leave and licence. The 3[rd] respondent obtained licence from the 1[st] respondent municipality to conduct the same. Subsequently, he stopped the said business and started restaurant in the premises without obtaining licence from the municipality. 3. As the 1[st] respondent demanded production of consent from the landlord, for considering his request of licence, the same was challenged by the 3[rd] respondent before the 2[nd] respondent. But the decision of the Secretary was upheld by the WP(C).31325/11 ## **-:2:-** Municipal Council and directed the 3[rd] respondent to close the restaurant. 4. The petitioner further alleges that as the 3[rd] respondent has not complied with the directions of the municipality, the municipality was constrained to close down the restaurant with the help of the Police. However, the 3[rd] respondent broke down the locks put by the municipality and approached the Tribunal for Local Self Government Institutions challenging the order of the 2[nd] respondent. 5. The learned Tribunal directed the municipality to grant licence to the 3[rd] respondent, which was challenged by the petitioner in O.P(C) No.2573 of 2011 before this Court and this Court by Ext.P9 judgment disposed of the O.P along with O.P(C) No.3047 of 2011 filed by the municipality. The direction of the Tribunal was set aside and the Tribunal was directed to reconsider the matter afresh. Accordingly, the learned Tribunal by the impugned order found that the 3[rd] respondent has obtained a deemed licence and, therefore, permission from the WP(C).31325/11 **-:3:-** owner of the building is not required. It is with this background, the petitioner has approached this Court. 6. In the detailed counter affidavit by the 3[rd] respondent it was contended that Ext.P10 order passed by the Tribunal is not liable to be interfered with. The allegation that the 3[rd] respondent broke down the locks put by the municipality was denied by him. The 3[rd] respondent would contend that initially he was occupying the shop room belonged to the petitioner's brother adjacent to the Vallakkattil theatre. Two months later, the petitioner requested him to shift the business to his building and Ext.P1 agreement was executed. The maintenance of the building was also done at his expense and he had spent more than 2 lakhs on that count. It is also contended that the 3₹ rd respondent had given 6 lakhs as advance to the petitioner. ₹ 7. It is stated in the counter that the change of business was for the reason that the vegetable business was not profitable. According to this respondent the intention of the petitioner is to evict him from somehow or other. He also would WP(C).31325/11 ## **-:4:-** allege that he had obtained requisite licence from the local authority as well as Food Safety and Standards Authority of India. 8. I have heard the learned counsel for the petitioner, the learned Senior Counsel appearing for the 3[rd] respondent as well as the learned standing counsel for the respondent municipality. 9. The previous order of the Tribunal for Local Self Government directing the respondent municipality to grant licence to the 3[rd] respondent was interfered with as per Ext.P9 and the Tribunal was directed to consider whether there was any covenant in the agreement restraining the 3[rd] respondent from doing any business other than vegetable. The Tribunal was also directed to consider whether it was necessary for the local authority to demand fresh letter of consent for obtaining a licence for a different business. The Tribunal was also directed to consider whether notice was served on the 3[rd] respondent within 30 days from the date on which the application for renewal for licence was received by the Secretary of the 1[st] respondent and to consider whether the 3[rd] respondent would be WP(C).31325/11 ## **-:5:-** treated as deemed licensee. 10. The 3[rd] respondent was put in possession of the premises on the basis of Ext.P1 agreement styled as “leave and licence agreement” and the 3[rd] respondent started business in vegetables on the strength of the same. While so, the 3[rd] respondent applied to the 1[st] respondent on 13.1.2011 for grant of licence to run a restaurant. However, the 1[st] respondent by Ext.P3 communicated the 3[rd] respondent that his request for licence to start the restaurant can be entertained only if there is consent of the petitioner who is the owner of the building. 11. The findings of the learned Tribunal in Ext.P10 order which is impugned is that as the said reply was not given within a period of 30 days from the date of receipt of a copy of the application by the Secretary of the 1[st] respondent, the 3[rd] respondent could be deemed to have granted licence under the provisions of sub section (6) of Section 447 of the Kerala Municipalities Act. Sub section (3A) of Section 447 the Act reads as follows: WP(C).31325/11 ## **-:6:-** “(3A) The Secretary shall, within fifteen days from the date of receipt of the application, by order and subject to such terms and condition as he deems fit, either grant licence for using a place to conduct a common trade or in the interest of the public refuse to grant such licence.” ## 12. Sub section (6) of Section 447 the Act reads as follows: “(6) If the order on an application for any licence or permission are not communicated to the applicant within thirty days after the receipt of the application by the Secretary or within such longer period, as may be prescribed in any class of cases the application shall be deemed to have been allowed for the period required in the application, subject to the Act, rules and bye-laws and all conditions which would have been ordinarily imposed.” 13. The definite stand taken by the 3[rd] respondent is that the order on the application for renewal was not communicated to him within thirty days. Admittedly, the application was received by the Secretary of the 1[st] respondent on 13.1.2011. It is further admitted by both sides that the order of the Secretary of the 1[st] respondent dated 8.2.2011 was communicated to the petitioner only on 14.2.2011. 14. I have verified the calender of the year 2011 to ascertain whether the reply reached the 3[rd] respondent within a period of 30 days as envisaged by Section 447 stated above. WP(C).31325/11 **-:7:-** The total number of days from 14[th] January to 14[th] February, 2011 is 31. However, the 30[th] day falls on 13.1.2011 which is a sunday. Here I would like to refer to Sections 8 and 9 of the Kerala Interpretation and General Clauses Act, 1125 which reads as follows: 8. Commencement and termination of time.- In any act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the work “from”, and for the purpose of including the last in a s series of days or any other period of time to use the work “to”. 9. Computation of time. Where by any Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day of within a prescribed period, then, if the Court of office is closed on that day of the last day of prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court of office is open: Provided that nothing in this section shall apply to any act or proceeding to which the Limitation Act for the time being in force. 15. The Apex Court in the decision reported in M/s. Saketh India Ltd. and others v. M/s. India Securities Ltd. [AIR 1999 Supreme Court 1090] observed that ordinarily in computing the time the rule observed is to exclude the first day and to include the last. WP(C).31325/11 **-:8:-** 16. When the number of days are calculated in terms of the aforesaid sections, it can be safely said that the reply of the 1[st] respondent reached the 3[rd] respondent with in a period of 30 days as envisaged by the statute. Hence, the finding of the learned Tribunal that there was deemed licence does not stand the test of reason and, therefore, cannot be allowed to stand. 17. Regarding the question of consent, it appears that the learned Tribunal has misunderstood the provision of Sections 447 and 492 of the Kerala Municipalities Act. Section 492(3) of the Municipalities Act reads as follows: “(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. 18. The present request of the 3[rd] respondent is to start a new business which is not at all connected or allied with the earlier business for which a licence was granted to him. Section 492(3) of the Municipalities Act gives a right to the landlord to see what business is going on in the premises and whether that WP(C).31325/11 ## **-:9:-** business is detrimental to his interest with respect to the building concerned. 19. The learned counsel for the petitioner would argue that as it was expressly stated that the purpose for which the premises was given to the 3[rd] respondent was for conducting the business in vegetables, it excludes the 3[rd] respondent from conducting any other business in the light of the expression “Unius Est Exclusio Alterius” which means that the express mention of one thing implies the exclusion of another. This rule enunciates one of the first principles applicable to the construction of written instruments. For example, it seems plainly to exclude any increase of an estate by implication, where there is an estate expressly limited by will and an emplied covenant to be controlled within the limits of an express covenant. That means where the parties are engaged to written agreements with express stipulations it is manifestly not desirable to extend them by implications because the presumption is that having expressed some, they have WP(C).31325/11 ## **-:10:-** expressed all the conditions by which they intended to be bound under that instrument. 20. In this case, the Tribunal was exercising discretionary powers vested with the 1[st] respondent municipality as per the Kerala Municipalities Act and it would be very detrimental to the object of the Act. At this juncture, the learned Senior Counsel appearing for the 3[rd] respondent inviting my attention to the decision of a Division Bench of this Court in Marimuthu v. Director General of Police [1993 (3) KLT 662] would argue that 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 was given on rent. Here in this case, the premises was given on rent for conducting vegetable shop. Therefore, the learned Tribunal was not at all justified in finding that no fresh consent is required for conducting the restaurant by the 3[rd] respondent. 21. Viewed in that profile, the finding of the learned Tribunal that the consent of the landlord is not required as the WP(C).31325/11 **-:11:-** licence does not require any positive covenant is incorrect. The 3[rd] respondent municipality in its discretion has found that consent from the petitioner is necessary for the grant of licence to the 3[rd] respondent for valid reasons. It is absolutely within the competence of the first respondent to consider whether the formalities required for the grant has been complied with by the 3[rd] respondent. In the result, the writ petition is allowed. Ext.P10 order is quashed upholding Resolution No.5 of the 2[nd] respondent dated 26.3.2011, which was communicated to the 3[rd] respondent as per Ext.P7 notice dated 11.4.2011. sd/- A.V.RAMAKRISHNA PILLAI JUDGE krj /True Copy/ P.A to Judge