Shafeeq T v. Corporation of Kochi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 18TH DAY OF JUNE 2020 / 28TH JYAISHTA, 1942** ## **WP(C).No.11999 OF 2020(Y)** ## **PETITIONER :** **SHAFEEK T AGED 48 YEARS S/O.P.P.ABOO, VALIYA VEETTIL, BAVA LANE, SRM ROAD, ERNAKULAM, KOCHI-682018** **BY ADVS. SRI.K.R.VINOD KUM.K.S.SREEREKHA SRI.NABIL KHADER** ## **RESPONDENTS:** - **1 THE CORPORATION OF KOCHI OFFICE OF THE CORPORATION OF KOCHI PARK AVE RD, MARINE DRIVE, KOCHI, KERALA 682011 REPRESENTED BY ITS SECRETARY** - **2 THE SECRETARY OFFICE OF THE CORPORATION OF KOCHI PARK AVE RD, MARINE DRIVE, KOCHI KERALA-682011 REPRESENTED BY ITS SECRETARY** - **3 HEALTH OFFICER OFFICE OF THE CORPORATION OF KOCHI PARK AVE RD, MARINE DRIVE, KOCHI, KERALA-682011** - **R1 TO R3 BY SRI.S.SUDHEESH KUMAR,SC, SRI.PEEYUS A.KOTTAM FOR THE BUILDING OWNER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.11999 OF 2020(Y)** **2** ## **ALEXANDER THOMAS, J.** **=========================== W.P(C) No.11999 of 2020** **===========================** Dated this the 18[th] day of June, 2020 ## **JUDGMENT** The case set up in this Writ Petition (Civil) is as follows: _The petitioner is aggrieved by Exhibit P7 order of the 3[rd] respondent, the Health Officer of Corporation of Kochi, by which the application submitted by the petitioner for renewal of his trade license was rejected stating the reason that the renewal application was objected by the landlord of the petitioner alleging forgery of the rent agreement. It is pertinent to see that, the petitioner has started to occupy the tenanted premises in 2013 and he was granted with D & O License in 2013 for conducting hotel business. Thereafter, the said license was being consistently renewed till 2020. Apart from that, the landlord of the petitioner used to receive rent from the petitioner during the aforesaid period. However, in 2020 when the petitioner expressed his unwillingness to the arbitrary enhancement of rent by his landlord, with an intention to stop the business of the petitioner in the tenanted premises, the landlord of the petitioner has approached before the 3rd respondent with such wild objection_ **WP(C).No.11999 OF 2020(Y)** **3** _of forgery of rent deed, which was not even raised by him for the past 7 years. The 3rd respondent, without providing an opportunity of being heard to the petitioner and without issuing show cause to the petitioner ahs arbitrarily rejected the application for renewal of D & O License submitted by the petitioner for the period 2020-2021 by Exhibit P7 order, in blatant violation of principles of natural justice and the settled judicial pronouncements._ 2. Heard Sri.K.R.Vinod, learned counsel appearing for the petitioner, Sri.S.Sudheesh Kumar, learned Standing Counsel for the Kochi Municipal Corporation appearing for respondents 1 to 3. This Court had also permitted Sri.Piyus A.Kottam, learned Advocate, who said that he is representing the building owner of the shop rooms covered by the impugned Ext.P-7 order. 3. The learned counsel for the petitioner has made submissions in tune with the pleadings in the W.P(C). One of the main contentions urged by the petitioner is to the effect that the impugned Ext.P-7 rejection order dated 06.03.2020 rejecting the application of the petitioner submitted on 28.02.2020 for renewal of the trade license for carrying out his trade in the shop building in question has been rendered without reasonable opportunity of being heard to the petitioner, etc. **WP(C).No.11999 OF 2020(Y)** **4** 4. _Per contra_ , Sri.Piyus A.Kottam, learned counsel appearing for the building owner would submit on the basis of instructions that earlier the petitioner was permitted by the building owner to occupy two shop rooms, which is situated in the first floor and thereafter the petitioner had voluntarily surrendered possession of the said two rooms in the first floor of the building. Further it is alleged that thereafter the petitioner had fabricated and forged a rent deed as it has been duly executed by the building owner in respect of one shop room which is situated in the second floor of the same building and that the petitioner has never been in possession and occupation of the said room in the second floor of the building, which is covered by the impugned Ext.P-7 order. That it is only on the basis of the said forged and fabricated rent deed that the petitioner could secure trade license from the respondent-Municipal Corporation in respect of the said two shop rooms covered by Ext.P-7 order. 5. It appears that it is indisputable that the petitioner has never been afforded any reasonable opportunity of being heard by the respondents before the rendering of the impugned Ext.P-7 rejection order. The learned counsel for the petitioner has relied on various decisions of the Apex Court and this Court as in _**Sudhakaran v. Corporation of Trivandrum and another**_ [2016 (14) SCC 263 = 2016 (3) KLT 247], _**Marimuthu and Others v. D.G.P and others**_ [1999 KHC 652 (DB)] **WP(C).No.11999 OF 2020(Y)** **5** as well as _**Shajahan.M.I v. Alice George and others**_ [2015 (1) KHC 811], _**Raj Restaurant v. Municipal Corporation of Delhi**_ [AIR 1982 SC 1550 = 1983 KHC 250], etc. to contend that it is well settled position of law that consent of the landlord/building owner is not required for renewal of the trade license by the Municipal/Panchayath authorities concerned, etc. 6. Without getting into the merits of the controversy in any manner, this Court is constrained to take the view that the impugned Ext.P-7 order is liable for interdiction solely on the ground of violation of principles of natural justice and fairness. For effectuating a remit, it is ordered that the impugned Ext.P-7 rejection order will stand set aside and quashed and the application of the petitioner submitted on 28.02.2020 for trade license pertaining to the shop room covered by Ext.P-7 will stand remitted to the 2[nd] respondent-Secretary of the Municipal Corporation. This Court would also observe that in a case like this, it was not right and proper on the part of the 3[rd] respondent-Health Officer, to have passed Ext.P-7 rejection order, even if it is assumed that the 3[rd] respondent-Health Officer has been delegated the powers to exercise the powers of the Secretary. The cases like this involve rejection of the renewal of the trade license and in the fitness of things that the 2[nd] respondent-Secretary of the Corporation who is the Chief Executive Officer takes the decision. **WP(C).No.11999 OF 2020(Y)** **6** Admittedly, disputes in this case does not pertaining to any public health issues and therefore, it was not right and proper for the 3[rd] respondentHealth Officer, to have passed an order in the nature of Ext.P-7, which apparently even involves disputed facts. The petitioner would hotly rebut the allegations and would submit that he has been in lawful possession and occupation of the subject shoproom covered by Ext.P-7 on the basis of the rent deed voluntarily executed by the building owner and that the allegations to contrary are incorrect, etc. 7. Accordingly, it is ordered that the 2[nd] respondent-Secretary of the Municipal Corporation may ensure the conduct of an inspection of the shop building covered by Ext.P-7 by an authorized official like the building inspector with due prior notice to the petitioner and the building owner to ascertain as to whether the petitioner is in actual occupation and possession of the subject property covered by Ext.P-7 and a report should be submitted by the Inspecting Officer to the 2[nd] respondent-Secretary within two weeks from the date of receipt of a certified copy of this judgment and copies of the said inspection report should also be given to both the petitioner and the building owner in advance. Thereafter, the 2[nd] respondent-Secretary of the Municipal Corporation will afford reasonable opportunity of being heard to the petitioner and the building owner and may take a considered decision on the plea of the petitioner for **WP(C).No.11999 OF 2020(Y)** **7** grant of renewal of trade license as sought for in the abovesaid application, without much delay, preferably within a period of two weeks from the date of receipt of the abovesaid inspection report. The abovesaid contention of the petitioner as well as the rival contentions of the building owner may be adverted to and considered by the 2[nd] respondent before rendering decision in the matter as aforesaid. It is made clear that this Court has not entered into the merits of the controversy in any manner and it is for the 2[nd] respondent to hear both sides and to take a decision in the matter, in accordance with law. 8. The petitioner will produce a certified copy of this judgment with the Memorandum of this W.P(C) with all the exhibits to the 2[nd] respondent-Secretary of the Kochi Municipal Corporation, for necessary information and further action. Registry will also furnish a certified copy of this judgment to Sri.Piyus A.Kottam, learned counsel, who appeared for the building owner, if necessary application in that regard is submitted by him. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS JUDGE** vgd **WP(C).No.11999 OF 2020(Y)** **8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **THE COPY OF THE D & O LICENSE ISSUED IN FAVOUR OF THE PETITIONER ON 31.05.2013 IN THE BUILDING BEARING DOOR NO.40/2817E AT POST OFFICE LINK ROAD, BROADWAY, ERNAKULAM.** **EXHIBIT P2** **THE RENEWED D & O LICENSE ISSUED IN FAVOUR OF THE PETITIONER ISSUED BY THE CORPORATION OF KOCHI DURING THE PERIOD 2015-2016** **EXHIBIT P3 THE RENEWED D & O LICENSE ISSUED IN FAVOUR OF THE PETITIONER BY THE CORPORATION OF KOCHI DURING THE PERIOD 2016-2017** **EXHIBIT P4 THE RENEWED D & O LICENSE ISSUED IN FAVOUR OF THE PETITIONER BY THE CORPORATION OF KOCHI DURING THE PERIOD 2017-2018** **EXHIBIT P5 THE RECEIPT ISSUED BY THE CORPORATION OF KOCHI FOR THE RENEWAL OF D & O LICENSE FOR THE PERIOD 2018-2019 IN FAVOUR OF THE PETITIONER** **EXHIBIT P6 THE RECEIPT ISSUED BY THE CORPORATION OF KOCHI FOR THE RENEWAL OF D & O LICENSE FOR THE PERIOD 2019-2020 IN FAVOUR OF THE PETITIONER** **EXHIBIT P7 THE COPY OF THE ORDER SIGNED BY THE 3RD RESPONDENT ISSUED FOR AND ON BEHALF OF 1ST AND 2ND RESPONDENTS DATED 06.03.2020, SERVED ON THE PETITIONER ON 11.06.2020**