Prince M. T. v. Secretary, Kunnamkulam Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 04TH DAY OF SEPTEMBER 2019 / 13TH BHADRA, 1941** ## **WP(C).No.14095 OF 2019(J)** ## **PETITIONER:** **PRINCE.M.T AGED 61 YEARS S/O. LATE THOMAS,** **RESIDING AT MULAKKAL HOUSE, DNRA 33, PULIPPARAMBU, OLLURKKARA P.O, THRISSUR-680655. CONDUCTING LAVANYA JEWELLERY, WADAKKANCHERRY ROAD, P.O.KUNNAMKULAM.** **BY ADVS. SRI.P.SANJAY SMT.A.PARVATHI MENON** ## **RESPONDENTS:** - **1 SECRETARY KUNNAMKULAM MUNICIPALITY, KUNNAMKULAM, TRICHUR DISTRICT, PIN-680503.** - **2 DHANYA MARY GEORGE, AGED ABOUT 40 YEARS, D/O.VADAKKETHALAKKAL GEORGE, KUNNAMKULAM VILLAGE, MENACHERRY DESOM, THALAPILLY TALUK, PIN-680503.** - **3 LINCE MATHEW, AGED ABOUT 45 YEARS, S/O. CHERUVATHOOR C.V. MATHEW, KACHERY VILLAGE AND DESOM, KOZHIKODE TALUK, PIN CODE-680501.** **R1 BY ADV. SRI.I.V.PRAMOD R2 BY ADV. SRI.GEORGE CHERIAN (SR.) R2 BY ADV. SMT.K.S.SANTHI R2 BY ADV. SMT.LATHA SUSAN CHERIAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 W.P.(C) No.14095/2019 ## **JUDGMENT** The petitioner, who is stated to be the tenant of shop room No.XVI/279 in Kunnamkulam Municipality, which was originally owned by one Saramma Job, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the first respondent to consider Ext.P5 renewal application within a time frame. The petitioner has also sought for a writ of mandamus commanding the first respondent to accept the licence fee paid by him vide Ext.P7 and renew the licence to conduct jewellery business in building No.XV/551 (Old No.XVI/239C) of Kunnamkulam Municipality. 2. On 22.5.2019, when this writ petition came up for admission, the learned Standing Counsel took notice on admission for the first respondent. Urgent notice on admission by speed post was ordered to respondents 2 and 3, returnable by 6.6.2019. The learned Standing Counsel was directed to get instructions. 3. Heard the learned counsel for the petitioner, the 3 W.P.(C) No.14095/2019 learned Standing Counsel for the first respondent Municipality and also the learned counsel for the second respondent. Despite service of notice, none appears for the third respondent. It is pointed out by the learned counsel for the petitioner that the third respondent is the husband of the second respondent. 4. The issue that arises for consideration in this writ petition is as to whether the petitioner is entitled for a writ of mandamus commanding the first respondent to consider Ext.P5 application for renewal of licence, in respect of the shop room in question, for the purpose of conducting a jewellery. 5. The fact that respondents 2 and 3 have filed a Rent Control Petition before the Rent Control Court, Chavakkad on the ground of arrears of rent and bonafide need, invoking the provisions under Section 11(2) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 is not in dispute. 6. The learned counsel for the second respondent would submit that Ext.P5 application is not one for renewal of licence and it is an application for fresh licence. The learned 4 W.P.(C) No.14095/2019 counsel would also point out that the petitioner has not chosen to place on record any material to show that he was having a valid licence during the year 2018-2019. Moreover, in Ext.P5 application, number of the previous licence is not mentioned. 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 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 5 W.P.(C) No.14095/2019 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 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 W.P.(C) No.14095/2019 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 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 7 W.P.(C) No.14095/2019 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. Having considered the submissions made by the learned counsel on both sides, this Court finds that Ext.P5 application made by the petitioner for licence for conducting a jewellery in the building in question for the year 2019-20 is pending consideration before the first respondent, who is the Secretary of Kunnamkulam Municipality. Therefore, it is for the first respondent to consider and pass appropriate orders on that application with notice to the petitioner and also to respondents 2 and 3. 11. In such circumstances, this writ petition is disposed of directing the first respondent to consider and pass appropriate orders on Ext.P5 application made by the petitioner, strictly in accordance with law, with notice to the petitioner and also to respondents 2 and 3, after affording them an opportunity of being heard. Necessary orders in this regard shall be passed as expeditiously as possible, at any rate, within a period of one month from the date of receipt of 8 W.P.(C) No.14095/2019 a certified copy of this judgment. It is made clear that this Court has not expressed anything as to the rival contentions as to the title and ownership of the property in question. The legal and factual contentions raised by both sides are left open to be raised before the first respondent Municipality. Sd/- **ANIL K.NARENDRAN JUDGE** csl 9 W.P.(C) No.14095/2019 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE RENT RECEIPT NO.3127 DATED 01.08.2015** **EXHIBIT P2 TRUE COPY OF THE SAID WRITTEN COUNTER IN RCOP NO.80/2015 BEFORE THE HONBLE RENT CONTROL COURT CHAVAKKAD DATED 15.12.2016. EXHIBIT P3 TRUE COPY OF THE ORDER IN RCOP NO.80/2015 BEFORE THE HON'BLE RENT CONTROL COURT, CHAVAKKAD DATED 06.08.2018.** **EXHIBIT P4 TRUE COPY OF IA 6302/18 IN RCOP NO.80/2015 BEFORE THE HON'BLE RENT CONTROL COURT, CHAVAKKAD DATED 04.09.2014.** **EXHIBIT P5 TRUE COPY OF THE APPLICATION DATED 27.2.2019 BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P6 TRUE COPY OF THE LICENCE DATED 21.5.1999 ISSUED TO THE PETITIONER BY THE FIRST RESPONDENT FOR THE YEAR 1.4.99 TO 31.3.2000. EXHIBIT P7 TRUE COPY OF THE RECEIPT OF THE E PAYMENT TOWARDS LICENCE FEE DATED 21.3.2019.**