Shalif Mohammed Nahas v. Kochi Municipal Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 10TH DAY OF JULY 2019 / 19TH ASHADHA, 1941** ## **WP(C).No.15135 of 2019** ## **PETITIONER:** **SHALIF MOHAMMED NAHAS, RESIDING AT 6124, PRESTIGE NEPTUNE COURTYARD, MARINE DRIVE, KOCHI-18.** **BY ADVS. SRI.P.GOPINATH (SR.) SMT.ANN MARIA FRANCIS SRI.JOSON MANAVALAN SRI.K.JOHN MATHAI SRI.KURYAN THOMAS SRI.M.GOPIKRISHNAN NAMBIAR SRI.PAULOSE C. ABRAHAM** ## **RESPONDENTS:** **1 THE KOCHI MUNICIPAL CORPORATION, BOAT JETTY, KOCHI-682011, REPRESENTED BY ITS SECRETARY. 2 THE SECRETARY, KOCHI MUNICIPAL CORPORATION, BOAT JETTY, KOCHI-682011. 3 SRI.NORMAN JOSEPH, RESIDING AT ALUNKAL HOUSE, ELAMKULAM VILLAGE, KADAVANTHRA DESOM, KADAVANTHRA, KOCHI-682020. BY ADVS. SRI.P.B.SAHASRANAMAN SMT.SAREENA GEORGE,SC,COCHIN CORPORATIO SRI.T.S.HARIKUMAR** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 WP(C)15135 OF 2019 **==> picture [58 x 10] intentionally omitted <==** ## **JUDGMENT** The petitioner is stated to be the sole proprietor of M/s.24 Hour-Quick Convenience Store and Snack Bar functioning at Building No.54/3107 (Old No.37/414A) in Ward No.54 of Kochi Municipal Corporation. The 3[rd] respondent is the owner of that building, in respect of which the petitioner had entered into Ext.P1 lease agreement dated 01.11.2018, for a period of 11 months, on a monthly rent of Rs.37,000/-, and an interest fee deposit of Rs.5 lakhs. In Ext.P1 lease agreement, there is provision for renewal with enhancement of rent at 5%. 2. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P14 proceedings dated 25.03.2019 of the 2[nd] respondent, who is the Secretary of the 1[st] respondent Municipal Corporation, whereby the application made by the petitioner for renewal of trade licence for the period from 01.04.2019 to 31.03.2020 stands rejected; Ext.P15 proceedings dated 28.04.2019 of the 2[nd] respondent, whereby the concerned Health Inspector has been authorised to close down the petitioner's shop on the ground that it is functioning 3 WP(C)15135 OF 2019 without a valid licence; and Ext.P16 notice dated 06.05.2019 of the Health Inspector, Circle No. 12, whereby the said shop room is sealed pursuant to Ext.P15 proceedings. The further reliefs sought for in this writ petition are a writ of mandamus commanding respondents 1 and 2 to reconsider the application for renewal of trade licence, in terms of the provisions under the Kerala Municipality (Dangerous and Offensive Trades and Factories Licensing) Rules, 2011, without taking into account any objection raised by the 3[rd] respondent, taking note of the law laid down by this Court in **Babu v. Vijayan [2019 (1) KLT 684]** ; a writ of mandamus commanding respondents 1 and 2 to forthwith restore possession of the premises covered by Ext.P1 sale deed to the petitioner; and a writ of mandamus commanding respondents 1 and 2 to conduct a proper enquiry into the unauthorised conduct of business in the residential building of the 3[rd] respondent, i.e., Alunkal building in Alunkal road connecting Kaloor-Kadavanthra road and the road towards Regional Sports Centre, as mentioned in paragraphs 12 and 13 of the writ petition, and take appropriate action in accordance with law. 3. On 03.06.2019, when this writ petition came up for 4 WP(C)15135 OF 2019 admission, the learned Standing Counsel for Kochi Municipal Corporation took notice on admission for respondents 1 and 2. The 3[rd] respondent entered appearance through counsel. The 2[nd] respondent was directed to file statement and the 3[rd] respondent was directed to file counter affidavit, by 06.06.2019. 4. A counter affidavit has been filed by the 3[rd] respondent, opposing the reliefs sought for in this writ petition. The petitioner has also filed a reply affidavit. Along with I.A.No.1 of 2019, the petitioner has produced certain additional documents. 5. On 18.06.2019, when this writ petition came up for consideration, the learned counsel for the 3[rd] respondent pointed out that, as per Ext.P20 item-wise summary of current stock, the petitioner is having a stock of 260 vicks cough syrup bottles. The learned counsel submitted that sale of cough syrups in the shop run by the petitioner, which is admittedly not a medical shop, is legally impermissible. 6. By order dated 18.06.2019, this Court appointed an Advocate Commissioner to inspect the shop room in question, with notice to the learned counsel on both sides, and to submit 5 WP(C)15135 OF 2019 a report before this Court as to whether cough syrups or any other medicinal preparations are kept for sale in that shop. The Advocate Commissioner was also directed to state as to whether any perishable items are kept in that shop. 7. Pursuant to the order dated 18.06.2019, the Advocate Commissioner inspected the shop in question, on 19.06.2019, and submitted a report dated 21.06.2019. As per the report, no cough syrups or other medicinal preparations are found in the shop of the petitioner. The Advocate Commissioner found vicks vaporub, vicks baby rub, vicks inhaler, vicks cough drops costing Rs.1/- each, etc. in the shop. As per the report of the Advocate Commissioner, the perishable items in the shop include one refrigerator full of ice cream, which had fully melted and emitting foul smell, milk products and snack items and one rack of eggs. 8. Heard arguments of the learned Senior Counsel for the petitioner, the learned Standing Counsel for the 1[st] respondent Corporation, representing respondents 1 and 2, and also the learned counsel for the 3[rd] respondent, on various dates from 24.06.2019. 6 WP(C)15135 OF 2019 9. On 03.07.2019, when this writ petition came up for consideration, after arguing for some time, the learned Standing Counsel for the Corporation sought time to get instructions as to whether Ext.P13 request made by the petitioner for renewal of trade licence was accompanied by an application in the prescribed form. 10. Today, when the case is taken up for consideration, it is submitted by the learned Standing Counsel for the Corporation that Ext.P13 request was accompanied by an application for renewal of trade licence in the prescribed form. 11. The issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P14 proceedings dated 25.03.2019, whereby the application made by the petitioner for renewal of trade licence stands rejected; Ext.P15 proceedings dated 28.04.2019 of the 2[nd] respondent, whereby the Health Inspector is authorised to seal the petitioner's shop; and Ext.P16 notice dated 06.05.2019 of the Health Inspector, whereby the petitioner's shop room stands sealed. 12. So far as the challenge made in this writ petition against Ext.P15 proceedings and Ext.P16 notice is concerned, 7 WP(C)15135 OF 2019 the 2[nd] respondent has closed down the shop run by the petitioner in exercise of the powers under Section 532 of the Kerala Municipality Act, 1994, on the ground that the shop was functioning without a valid licence. 13. Section 532 of the Kerala Municipality Act deals with consequences of failure to obtain licences, etc., or of breach of the same. As per sub-section (1) of Section 532, where, under this Act or any rule, bye-law or regulation made thereunder, the licence or permission of the Municipality or the Secretary or registration with the Municipality is necessary for the doing of any act and where such act is done without such licence or permission or registration or in a manner inconsistent with the terms of any such licence or permission; (a) the Secretary may, by notice, require the person doing such act to alter, remove, or as far as practicable, restore, to its original state the whole or any part of any property, movable or immovable, public or private affected thereby within a time to be specified in the notice; or (b) the Secretary or any officer duly authorised by him may enter any building or land where such act is done and take all such steps as may be necessary to 8 WP(C)15135 OF 2019 prevent the continuance of such act. 14. As per sub-section (2) of Section 532 of the Act, where the notice under sub-section (1) is not complied with, the Secretary may seize the unlicensed article or articles kept in unlicensed premises and all the articles seized shall be disposed of in the manner provided for the disposal of articles seized under Section 474. As per the proviso to sub-section (2) of Section 532, where the articles are released, an undertaking shall be obtained from the person obtaining the release that he shall comply with the provisions relating to licence, permission or registration under this Act or any rule, bye-law or regulation made thereunder or the terms of the licence, permission or registration, as the case may be. 15. As per sub-section (3) of Section 532 of the Act, where no penalty has been specifically provided in this Act for the doing of such act, the person so doing shall be liable, on conviction, to a fine not exceeding five hundred rupees for such offence. As per sub-section (4) of Section 532, no claim shall lie against the Secretary or any other person authorised by him for any damage or inconvenience caused by the 9 WP(C)15135 OF 2019 exercise of the power under this Section or by use of force necessary for the purpose of carrying out the provisions of this Section. 16. As per sub-section (5) of Section 532 of the Act, which starts with a non-obstante clause, notwithstanding anything contained in sub-section (1) or sub-section (2), the Secretary or any officer authorised by him in writing in this behalf may, if satisfied that immediate action is necessary, cause it to be closed any trade, business or premises which is held or kept open, in respect of which a licence, permission or registration has to be obtained under the provisions of this Act or any other Act from the Municipality, but has not been so obtained or the licence, permission or registration has been refused, withheld, revoked or suspended. 17. During the course of arguments, the submission made by the learned Standing Counsel for the Corporation is that, it is in exercise of the powers under sub-section (5) of Section 532 of the Act that the 2[nd] respondent has authorised the concerned Health Inspector to seal the shop of the petitioner in which he was conducting trade without a valid licence. The learned counsel for the 3[rd] respondent pointed out 10 WP(C)15135 OF 2019 that the provisions under sub-section (5) of Section 532 gives ample power to the 2[nd] respondent Secretary of the Municipal Corporation to close down a shop, which is conducted without a valid licence. 18. A reading of the provisions under sub-sections (1) and (2) of Section 532 and that under sub-section (5) would make it explicitly clear that the power of seizure of unlicensed article or articles kept in unlicensed premises can be exercised by the Secretary of the Municipality or any officer authorised by him, after issuing a notice, as contemplated under clause (a) of sub-section (1), requiring the person to do certain things as enumerated in that clause. As per clause (b) of sub-section (1), the Secretary or any officer duly authorised by him may enter into any building or land, where such act is done and take certain steps as enumerated in that clause, as may be necessary to prevent the continuance of such act. On the other hand, sub-section (5) of Section 532 empowers the Secretary or any officer authorised by him in writing in this behalf to close down any trade or business or any premises, which is held or kept open, in respect of which a licence, permission or registration has to be obtained under the provisions of this Act 11 WP(C)15135 OF 2019 or any other Act from the Municipality, but has not been so obtained or the licence, permission or registration has been refused, withheld, revoked or suspended, if he is satisfied that immediate action is necessary. Therefore, in an order of closure of any trade or business or any premises issued by the Secretary of a Municipality, invoking the powers under subsection (5) of Section 532, the Secretary has to record his satisfaction as to the necessity for an immediate action for closure of any trade or business or any premises, which is held or kept open, in respect of which a licence, permission or registration has to be obtained under the provisions of this Act or any other Act from the Municipality, but has not been so obtained or the licence, permission or registration has been refused, withheld, revoked or suspended. 19. In the instant case, in Ext.P15 order dated 28.04.2019, the 2[nd] respondent has not recorded his satisfication as to the necessity for an immediate action for closure of the petitioner's shop, in exercise of the powers under sub-section (5) of Section 532 of the Act. In the counter affidavit filed by the 3[rd] respondent, the said respondent has also no case that there existed any circumstances, which 12 WP(C)15135 OF 2019 necessitated immediate action of the Secretary, invoking the provisions under sub-section (5) of Section 532 of the Act, for closure of the petitioner's shop. 20. In **Malu M. v. State of Kerala and others [ILR 2015 (3) Ker 869]** , this Court held that the object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. The recording of reasons by an administrative or quasi-judicial authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision making. It would apply equally to all decisions made by such authority and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. Paragraphs 15 to 18 of the said decision read thus; “15. In **Breen v. Amalgamated Engineering Union (1971 (1) All. E.R. 1148)** Lord Denning, M.R. Observed that, the giving of reasons is one of the fundamentals of good administration. In **Alexander Machinery (Dudley) Ltd. v. Crabtree (1974 ICR 120)** it was observed that, failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decisiontaker to the controversy in question and the decision or conclusion arrived at. 13 WP(C)15135 OF 2019 16. Following the principle laid down in the decisions referred to above, the Apex Court in **Chairman and Managing Director, United Commercial Bank and others Vs. P.C.Kakkar (2003) 4 SCC 364)** held that, reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the 'inscrutable face of the sphinx', it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The 'inscrutable face of a sphinx' is ordinarily incongruous with a judicial or quasi-judicial performance. 17. A Constitution Bench of the Apex Court has laid down in **Krishna Swami v. Union of India and others (1992 (4) SCC 605)** that, undoubtedly, in a parliamentary democracy governed by rule of law, any action, decision or order of any statutory/public authority/functionary must be founded upon reasons stated in the order or staring from the record. Reasons are the links between the material, the foundation for their erection and the actual conclusions. They would also demonstrate how the mind of the maker was activated and actuated and their rational nexus and synthesis with the facts considered and the conclusions reached. Lest it would be arbitrary, unfair and unjust, violating Article 14 or unfair procedure offending 14 WP(C)15135 OF 2019 ## Article 21 of the Constitution of India. 18. The object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. The recording of reasons by an administrative or quasi-judicial authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decisions making. It would apply equally to all decisions made by such authority and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. At the same time, it is not the requirement that, the reasons should be as elaborate as in the decision of a court of law. What is necessary is that, the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. Hence, it is an essential requirement of the rule of law that, some reasons, at least in brief, must be disclosed in the order passed by an administrative or quasi-judicial authority.” 21. In **Mampad Grama Panchayat v. the Convenor Mampad Friends All India Sevens Football Tournament Committee and others [2016 (5) KHC 846]** , in the context of Section 7A of the Kerala Local Authorities Entertainments Tax Act, 1961, inserted by the Local Authorities (Amendment) Act, 1989, which deals with the power of Government to exempt from the liability to tax, this Court held that, subsection (1) of Section 7A of the Act, mandates that any general 15 WP(C)15135 OF 2019 or special order of the Government granting exemption from the levy of entertainments tax any entertainment under clause (a) or clause (b) thereof, should be supported by reasons to be specified in such order. In view of the mandate of sub-section (1) of Section 7A, it is imperative for the Government to specify reasons in any general or special order issued under the said sub-section granting exemption from the levy of tax. This Court held further that, when the statute requires to do certain thing in certain way, the thing must be done in that way or not at all. Other methods or mode of performance are impliedly and necessarily forbidden. Paragraphs 8 to 14 of the said decision read thus; “8. Section 7A of the Act, inserted by the Local Authorities (Amendment) Act, 1989, which deals with the power of the Government to exempt from the liability to tax, reads thus; - “7A. Power to exempt.- (1) Notwithstanding anything contained in the Act, the Government may, by general or special order and for reasons to be specified in such order, exempt from liability to tax,- - (a) any entertainment or class of entertainments; or - (b) any or all of the entertainments provided in a place owned by the Government or a Corporation owned or controlled by the Government. 16 WP(C)15135 OF 2019 (2) Any local authority concerned shall be bound to comply with any order made by the Government under sub-section (1). (3) A local authority may with the previous sanction of the Government exempt any entertainment or class of entertainments not exempted under sub-section (1) from liability to the tax.” 9. Sub-section (1) of Section 7 of the Act empowers the local authority to exempt any entertainment from the levy of entertainments tax, where the local authority is satisfied that such entertainment is of the nature referred to in clauses (a) to (d) thereof. Therefore, the power of the local authority to grant exemption from the levy of entertainments tax is confined to entertainments of the nature referred to in clauses (a) to (d) of sub-section (1) of Section 7 of the Act. On the other hand, Section 7A of the Act, which begins with a non-obstante clause, empower the Government to exempt from the liability to tax, (a) any entertainment or class of entertainments; or (b) any or all of the entertainments provided in a place owned by the Government or a Corporation owned or controlled by the Government, by general or special order and for reasons to be specified in such order. 10. Sub-section (1) of Section 7A of the Act, therefore, mandates that any general or special order of the Government granting exemption from the levy of entertainments tax any entertainment under clause (a) or clause (b) thereof, should be supported by reasons to be specified in such order. In view of the mandate of subsection (1) of Section 7A, it is imperative for the 17 WP(C)15135 OF 2019 Government to specify reasons in any general or special order issued under the said sub-section granting exemption from the levy of tax. This is more so, when any such Government order will have an adverse impact on the revenues of the local authorities, and since the local authorities mainly depend on such sources of revenue for carrying out their obligatory duties under the relevant statutes. 11. It is well settled that, when the statute requires to do certain thing in certain way, the thing must be done in that way or not at all. Other methods or mode of performance are impliedly and necessarily forbidden. The said proposition of law is based on a legal maxim “expressio unius est exclusion alteris” meaning thereby that, if the statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner, and following other course is not permissible. The said proposition of law about limitation of exercise of statutory power has first been identified by Jassel M.R. in the case of **Taylor v. Taylor (1876 (1) Ch.D. 426)** , wherein it was laid down that, where a power is given to do a certain thing in a certain way, that thing must be done in that way, or not at all, and that other methods of performance are necessarily forbidden. The Privy Council applied the said principle in the case of **Nazir Ahmed v. King Emperor (AIR 1936 PC 253)** . 12. In **Ajanta Industries v. Central Board of Direct Taxes (1976 (1) SCC 1001)** , a Three-Judge Bench of the Apex Court held that, when law requires reasons to be recorded in a particular order, affecting prejudicially the 18 WP(C)15135 OF 2019 interest of any person, who can challenge the order in court, it ceases to be a mere administrative order and the wise or violation of the principles of natural justice on account of omission to communicate the reasons is not expiated. The said decision of the Apex Court was in the context of Section 127(1) of the Income Tax Act, 1961 which empowers the Commissioner of Income Tax to transfer any case from one Income Tax Officer subordinate to him to another, also subordinate to him, after giving the assessee a reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after recording his reasons for doing so. After taking note of the corresponding section in the Income Tax Act, 1922, i.e., Section 5(7A), the Apex Court held that, unlike Section 5(7A) of the 1922 Act, Section 127(1) of the 1961 Act requires reasons to be recorded prior to the passing of an order of transfer. However, the impugned order does not state any reasons whatsoever for making the order of transfer. The Apex Court held that, the requirement of recording reasons under Section 127(1) of the 1961 Act is a mandatory direction under the law and noncommunication thereof is not saved by showing that the reasons exist in the file although not communicated to the assessee. The Apex Court held further that, the reason for recording of reasons in the order and making those reasons known to the assessee is to enable an opportunity to the assessee to approach the High Court under its writ jurisdiction under Article 226 of the Constitution or even the Apex Court under Article 136 of the Constitution in an appropriate case for challenging the order, inter alia, either 19 WP(C)15135 OF 2019 on the ground that it is a mala fide or arbitrary exercise or that, it is based on irrelevant and extraneous considerations. 13. In the instant case, sub-section (1) of Section 7A of the Act empower the Government to exempt an entertainment or class of entertainments, etc. from the levy entertainments tax, for reasons to be specified in the general or special order passed by the Government granting such exemption. Going by sub-section (2) of Section 7A, on such general or special order being passed, the local authority concerned shall be bound to comply with such order of exemption. If the reasons stated by the Government in granting exemption from the levy of entertainments tax is vitiated by arbitrary exercise of power or based on irrelevant or extraneous considerations, it would be open to the local authority concerned to challenge the same invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India. In order to exercise such right efficaciously, the reasons for granting such exemption should be made known to the local authority concerned. 14. In the instant case, Ext.P2 order is in the nature of a special order issued by the Government granting exemption from the levy of entertainments tax for a Football Tournament conducted by the 1[st] respondent. The said order contains no reasons whatsoever for granting such exemption. Since Ext.P2 order does not contain any reason for exercise of such power by the Government, invoking the provisions under sub-section (1) of Section 7A of the Act, conclusion is irresistible that the said order is 20 WP(C)15135 OF 2019 one issued contrary to the mandate of the said sub-section and as such vitiated, which cannot be sustained in law.” 22. In the light of the law laid down in the decisions referred to supra, Ext.P15 order of the 2[nd] respondent, whereby the shop of the petitioner is ordered to be closed down, without recording the satisfaction of the 2[nd] respondent as to the necessity for immediate action for closure of that shop, is one issued contrary to the mandate of sub-section (5) of Section 532 of the Act. On that sole ground, Ext.P15 order is liable to be set aside; so also Ext.P16 notice dated 06.05.2019 issued by the concerned Health Inspector. 23. Now, I shall deal with the challenge made in this writ petition against Ext.P14 order dated 25.03.2019 of the 2[nd] respondent, whereby the request made by the petitioner for renewal of trade licence for the year 2019-20 stands rejected. 24. As submitted by the learned Standing Counsel for the Corporation, Ext.P13 request made by the petitioner for renewal of trade licence was supported by an application for renewal in the prescribed form. By Ext.P14 order, the 2[nd] respondent rejected that application on the ground that the 3[rd] respondent by communication dated 20.02.2019 has informed 21 WP(C)15135 OF 2019 that he has already revoked Ext.P1 lease agreement. In Ext.P14 it has also been stated that, since W.P.(C)No.3343 of 2019 is pending consideration before this Court, the application for renewal of licence can be rejected. 25. Though, various contentions have been raised by both sides as to the nature of occupancy of the premises in question and also the right or authority of a tenant to make an application for change of occupancy of the tenanted premises, this Court need not go into those issues in this writ petition, since the nature of occupancy of the tenanted premises is not a reason stated in Ext.P14 order to reject the application made by the petitioner for renewal of trade licence. 26. As can be seen from Ext.P1 lease agreement entered into between the petitioner and the 3[rd] respondent, the premises in question is leased out to the petitioner for running a commercial establishment. According to the petitioner, with the consent of the 3[rd] respondent, he obtained change of occupancy of the premises from residential to commercial as per the order dated 18.01.2019. Per contra, the 3[rd] respondent would contend that such a change has been obtained, without 22 WP(C)15135 OF 2019 his knowledge or consent and that, the petitioner made such an application on the strength of a consent letter, which according to the 3[rd] respondent, is a fabricated document. The 3[rd] respondent has already made a complaint before Kadavanthra Police Station, as evidenced by Ext.R3(B) receipt, alleging submission of forged document by the petitioner before the Municipal Corporation. 27. Based on Ext.P9 complaint dated 19.01.2019 made by the 3[rd] respondent, the 2[nd] respondent has withdrawn the earlier order dated 18.01.2019, thereby cancelling the change of occupancy of the premises from residential to commercial, vide Ext.R3(C) order dated 29.01.2019. The said order of the 2[nd] respondent is not under challenge in this writ petition. However, it has to be observed that unless and until the nature of occupancy of the building in question is changed from residential to commercial, the petitioner cannot be granted renewal of trade licence for conducting business in that building. 28. One of the reasons stated in Ext.P14 order for rejection of the application for trade licence made by the petitioner is withdrawal of consent by the 3[rd] respondent 23 WP(C)15135 OF 2019 landlord, since the 3[rd] respondent by communication dated 20.02.2019 informed the 2[nd] respondent that he had revoked Ext.P1 lease agreement, so also the consent letter. 29. 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 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 24 WP(C)15135 OF 2019 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.” 30. 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]** . In **Sudhakaran's case supra** , the Apex Court held that consent 25 WP(C)15135 OF 2019 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. 31. 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.” 32. In view of the law laid down in the decisions referred to supra, the consent of the 3[rd] respondent landlord cannot be insisted upon for granting renewal of trade licence to 26 WP(C)15135 OF 2019 the petitioner in respect of the premises covered by Ext.P1 lease agreement. 33. Another reason stated in Ext.P14 order for rejection of the application for renewal of trade licence is the pendency of W.P.(C)No.3343 of 2019. The said writ petition was one filed by the petitioner seeking a writ of mandamus commanding respondents 1 and 2 to consider Ext.P4 application dated 18.01.2019 made for trade licence for the year 2018-19 and for other consequential reliefs. In the said writ petition this Court granted an interim order on 05.02.2019, whereby the 2[nd] respondent was directed to issue provisional licence to the petitioner till 31.03.2019. Pursuant to that order, the 2[nd] respondent issued Ext.P12 proceedings, whereby the licence was renewed provisionally upto 31.03.2019. In Ext.P12, it was noticed that based on the complaint made by the 3[rd] respondent, the occupancy of the building has been changed from commercial to residential. Thereafter, the petitioner sent Ext.P13 request dated 11.03.2019 for renewal of trade licence for the year 2019-20, which now stands rejected by Ext.P14 order dated 25.03.2019 pointing out the pendency of W.P. (C)No.3343 of 2019 and also withdrawal of consent by the 3[rd] 27 WP(C)15135 OF 2019 respondent, as he had revoked Ext.P1 lease agreement. 34. A copy of Ext.P14 order dated 25.03.2019 was produced in W.P.(C)No.3343 of 2019, along with I.A.No.3 of 2019. The petitioner filed Ext.P17 appeal dated 18.05.2019 before the Municipal Council, against Ext.P14 order and Ext.P18 interlocutory application seeking an order to continue the business pending consideration of that appeal. Ext.P17 appeal and Ext.P18 application were produced in W.P. (C)No.3343 of 2019, along with I.A.No.5 of 2019. A copy of Ext.P15 order dated 28.04.2019 and Ext.P16 notice dated 06.05.2019 were also produced along with I.A.No.5 of 2019. 35. On 30.05.2019, when W.P.(C)No.3343 of 2019 came up for consideration, the learned Senior Counsel for the petitioner submitted that the petitioner proposes to file an application to amend that writ petition. Thereafter, on 31.05.2019 Sri P.Gopinath Menon, the learned Senior Counsel for the petitioner sought permission to withdraw that writ petition, without prejudice to the right of the petitioner to file a fresh writ petition, in view of the subsequent developments, seeking appropriate reliefs. The learned counsel for the 3[rd] respondent pointed out that pending consideration of Ext.P17 28 WP(C)15135 OF 2019 appeal and P18 interlocutory application before the Appellate Authority, the petitioner is not entitled to agitate the very same issue by filing a fresh writ petition. 36. By judgment dated 31.05.2019, based on the submission made by learned Senior Counsel for the petitioner, W.P.(C)No.3343 of 2019 was dismissed as withdrawn, leaving open the legal and factual contentions raised by both sides, and without prejudice to the right of the petitioner to pursue Exts.P17 appeal and P18 interlocutory application pending before the Appellate Authority and also the legal right, if any, to approach this Court, seeking any relief legally permissible under Article 226 of the Constitution of India. 37. One of the contentions raised in the counter affidavit filed by the 3[rd] respondent in this writ petition is that by Ext.R3(a) notice dated 17.01.2019, the application dated 21.12.2018 made by the petitioner for trade licence was rejected, since the nature of occupancy of the building in question is residential, as per the Assessment Register maintained by the Corporation. Without disclosing the said fact, the petitioner moved W.P.(C)No.3343 of 2019 and 29 WP(C)15135 OF 2019 obtained an interim order dated 05.02.2019, whereby the 2[nd] respondent was directed to issue provisional licence till 31.03.2019. The learned counsel for the 3[rd] respondent, placing reliance on the judgment of the Apex Court in **Satluj** ## **Jal Vidyut Nigam v. Raj Kumar Rajinder Singh [2018 SCC** **OnLine SC 1636]** , would contend that suppression of a material document would also amount to fraud on the Court. In the said decision, the Apex Court held that, fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. Although negligence is not fraud, it can be evidence of fraud. If any judgment or order is obtained by fraud, it cannot be considered to be a judgment or order in law. 38. The learned counsel for the 3[rd] respondent would also place reliance on the judgment of this Court in **Devicolam** ## **Distilleries Ltd. v. State of Kerala and others [2018 (4)** **KHC 703]** , wherein this Court held that a litigant, who invokes the extraordinary jurisdiction under Article 226 of the Constitution of India, must come with clean hands and clean 30 WP(C)15135 OF 2019 objects. The judicial proceedings are sacrosanct, and no person would be allowed to abuse judicial process, particularly, in public law remedy. In the said decision, this Court held further that, in writ proceedings, the Court places implicit faith on the parties and their pleadings, as it does not indulge in any fact finding or roving enquiry of what has been asserted. Since Article 226 of the Constitution of India espouses equity jurisprudence, a litigant who has approached the Court with unclean hands, without disclosing full facts, is not entitled for any reliefs. 39. On the other hand, the learned Senior Counsel for the petitioner, after referring to the pleadings in paragraphs 6 and 7 of the statement of facts in W.P.(C)No.3343 of 2019, would point out that, on 17.01.2019, an objection was raised by the Health Officer of the Corporation that the building in question is included in residential category, as per the Building Assessment Register, and unless the purpose of occupancy is changed to commercial, licence cannot be granted under Section 447 of the Kerala Municipality Act. Met with the above contingency, the petitioner submitted applications dated 31 WP(C)15135 OF 2019 18.01.2019 (Exts.P3 and P4 in that writ petition) for change of occupancy of the building as commercial and for granting licence. The learned Senior Counsel would also point out that the specific contention raised by the petitioner in W.P. (C)No.3343 of 2019 was that, in view of Ext.P1 lease agreement dated 01.11.2018 and Ext.P2 consent dated 07.01.2019, there is no scope for any objection against occupation of the building in question for commercial purpose. Further, based on Ext.P3 application dated 18.01.2019, change of occupancy was granted, as evidenced by Ext.P5 certificate dated 18.01.2019. However, as per Ext.R3(C) notice dated 29.01.2019, produced along with counter affidavit filed by the 3[rd] respondent, the change of occupancy granted on 18.01.2019 was cancelled, based on a complaint dated 19.01.2019 made by the 3[rd] respondent. 40. After considering the submissions made by the learned counsel for the petitioner and also the learned counsel for the 3[rd] respondent, this Court finds that, in view of the averments in paragraphs 6 and 7 of the statement of facts in W.P.(C)No.3343 of 2019, it cannot be contended that the 32 WP(C)15135 OF 2019 petitioner had approached this Court in that writ petition, without disclosing the objection raised by the Corporation as to the nature of occupancy of the building in question, which disentitled him from getting renewal of trade licence. 41. As already noticed, the change of occupancy of the building in question to residential, by withdrawing the earlier order dated 18.01.2019, is not a reason stated in Ext.P14 order for rejecting the application for renewal of trade liecnce made by the petitioner. Admittedly, Ext.P14 order has been issued in violation of the principles of natural justice, inasmuch as it is one passed without notice to the petitioner and without affording him an opportunity of being heard. Moreover, the main reason stated in Ext.P14 for rejection of the application for renewal of trade licence made by the petitioner is withdrawal of consent by the 3[rd] respondent landlord, which is contrary to the law laid down by the Division Bench of this Court in **Marimuthu's case (supra)** , which stands affirmed by the Apex Court in **Sudhakaran's case (supra)** , and reiterated by the Division Bench of this Court in **Babu's case (supra)** . When Ext.P14 order is vitiated by the principles of 33 WP(C)15135 OF 2019 natural justice and the main reason stated therein for rejection of the application for renewal of trade licence is contrary to the law laid down by the Apex Court and this Court in the decisions referred to supra, the same can be interfered with by this Court, in exercise of the writ jurisdiction under Article 226 of the Constitution of India, especially when Ext.P17 statutory appeal filed by the petitioner against Ext.P14 order is barred by limitation. 42. For the aforesaid reasons, Ext.P14 order is liable to be set aside and the 2[nd] respondent has to reconsider the application made by the petitioner for trade licence for the year 2019-20, along with Ext.P13 request, with notice to the petitioner and also to the 3[rd] respondent, strictly in accordance with law. 43. In the result, this writ petition is disposed of by setting aside Exts.P14, P15 and P16 and by directing the 2[nd] respondent to reconsider the application for renewal of trade licence made by the petitioner, along with Ext.P13 request, strictly in accordance with law, with notice to the petitioner and also to the 3[rd] respondent, and after affording them an 34 WP(C)15135 OF 2019 opportunity of being heard. 44. 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 certified copy of this judgment. 45. Since Ext.P15 order dated 28.04.2019 and Ext.P16 notice dated 06.05.2019 are set aside, it is for the 2[nd] respondent, through the concerned Health Inspector, to return possession of the shop room in question to the petitioner, within two weeks from the date of receipt of a certified copy of this judgment, through the concerned Health Inspector. 46. The submission made by the leaned counsel for the 3[rd] respondent that, the 3[rd] respondent has no objection in the petitioner being given possession of the shop room in question, without prejudice to the right of the said respondent to initiate appropriate proceedings against the petitioner for eviction and to prosecute the complaint made before the Police, as evidenced by Ext.R3(b) receipt, in accordance with law, is recorded. It is made clear that this Court has not expressed anything as to the maintainability of the application for 35 WP(C)15135 OF 2019 renewal of trade licence made by the petitioner, along with Ext.P13 request, in view of order dated 25.03.2019 of the 2[nd] respondent, whereby change of occupancy of the building from residential to commercial stands cancelled. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** 36 WP(C)15135 OF 2019 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LEASE AGREEMENT DATED 1.11.2018.** **EXHIBIT P2 TRUE COPY OF THE WRITTEN CONSENT EXECUTED ON 07.01.2019 BEFORE THE NOTARY PUBLIC** **EXHIBIT P3 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 18.01.2019.** **EXHIBIT P4 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 18.01.2019.** **EXHIBIT P5 TRUE COPY OF THE NOC DATED 18.01.2019 GRANTED BY KOCHI MUNICIPAL CORPORATION.** **EXHIBIT P6 TRUE COPY OF THE TAX RECEIPT (UNDER ENHANCED RATE)DATED 18.01.2019. EXHIBIT P7 TRUE COPY OF THE RECEIPT DATED 21.01.2019 ISSUED BY THE KOCHI MUNICIPAL CORPORATION. EXHIBIT P8 TRUE COPY OF THE APPLICATION DATED 21.01.2019 SUBMITTED BY THE PETITIONER. EXHIBIT P9 TRUE COPY OF THE OBJECTION SUBMITTED BY THE 3RD RESPONDENT DATED 19.01.2019.** **EXHIBIT P10 TRUE COPY OF THE ORDER DATED 25.3.2019 I.A.727/2019 IN O.S.119/2019.** **EXHIBIT P11 TRUE COPY OF THE ORDER DATED 12.04.2018 IS PRODUCED HEREWITH IN BAIL APPLICATION NO.2009/2018.** **EXHIBIT P12 TRUE COPY OF THE PROCEEDINGS DATED 8.3.2019 GRANTING D&O TO THE PETITIONER FOR THE YEAR 2018-19.** 37 WP(C)15135 OF 2019 **EXHIBIT P13 TRUE COPY OF THE APPLICATION DATED 11.03.2019 FOR RENEWING D&O LICENSE FOR THE YEAR 2019-20** - **EXHIBIT P14 TRUE COPY OF THE PROCEEDINGS DATED 25.03.2019 REGARDING THE REFUSAL OF RENEWAL** - **EXHIBIT P15 TRUE COPY OF THE PROCEEDINGS DATED 28.04.2019 (COPY WHICH WAS NEVER SERVED ON THE PETITIONER, BUT WAS PASTED ON THE SHOP)OF THE 1ST RESPONDENT.** - **EXHIBIT P16 TRUE COPY OF THE NOTICE DATED 06.05.2019 ISSUED BY THE HEALTH INSPECTOR.** - **EXHIBIT P17 TRUE COPY OF THE APPEAL PREFERRED BY THE PETITIONER TO THE COUNCIL DATED 18.05.2019 ALONG WITH THE RECEIPT** - **EXHIBIT P18 TRUE COPY OF THE PETITION DATED 22.05.2019 SEEKING PERMISSION TO CONTINUE BUSINESS PENDING APPEAL ALONG WITH THE RECEIPT.** - **EXHIBIT P19 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 24.05.2019 FILED BY THE 1ST RESPONDENT IN WP(C)3343/2019 ALONG WITH EXHIBITS.** - **EXHIBIT P20 A LIST OF ARTICLES AVAILABLE AT THE STORE AS A 06.05.2019 (WHEN THE STORE WAS SEALED).** - **EXHIBIT P21 A TRUE COPY OF THE LIST OF ARTICLES THAT WAS REMOVED FROM THE STORE.** - **EXHIBIT P22 A TRUE COPY OF THE JUDGMENT DATED 2305-2019 IN WRIT PETITION NO.10814 OF 2019.** **EXHIBIT P23 A TRUE COPY OF THE PROVISIONAL ORDER DATED 18-03-2019 ISSUED BY THE KSEB.** 38 WP(C)15135 OF 2019 **EXHIBIT P24** **A TRUE COPY OF THE PHOTO SHOWING THE VICKS COUGH DROP TABLETS AS AVAILABLE IN THE MARKET** ## **3RD RESPONDENT'S EXHIBITS:** **EXHIBIT R3(A)** **THE TRUE PHOTOSTAT COPY OF THE ORDER NO.ISO/MOH-12/COC/66/2019 DATED 17-012019** **EXHIBIT R3(B) THE TRUE PHOTOSTAT COPY OF THE RECEIPT ISSUED BY KADAVANTHRA POLICE STATION DATED 27-02-2019** - **EXHIBIT R3(C) THE TRUE PHOTOSTAT COPY OF THE INTIMATION GIVEN TO THIS RESPONDENT FROM THE VYTTILA ZONAL OFFICE OF THE 1ST RESPONDENT DATED 29-01-2019.** - **EXHIBIT R3(D) THE TRUE PHOTOSTAT COPY OF THE INTIMATION GIVEN BY THE SUPERINTENDENT, REVENUE DIVISION, VYTTILA ZONAL OFFICE TO THE HEALTH INSPECTOR DATED 29-01-2019** - **EXHIBIT R3(E) THE TRUE PHOTOSTAT COPY OF THE FIR NO.219 OF 2019 OF THE KADAVANTHRA POLICE STATION DATED 13-02-2019.** - **EXHIBIT R3(F) THE TRUE PHOTOSTAT COPY OF THE NOTICE OF THE REVOCATION OF EXHIBIT-P1 AGREEMENT ISSUED TO THE PETITIONER DATED 07-02-2019** - **EXHIBIT R3(G) THE TRUE PHOTOSTAT COPY OF THE PROCEEDING OF THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, COLLEGE DATED 14-05-2019 ALONG WITH THE FINAL BILL** - **2ND RESPONDENT'S EXHIBITS:** - **EXHIBIT-R2(A)** **TRUE COPY OF THE REPORT DATED 06/05/2019 PREPARED AT 6 P.M BY SIJU K., HEALTH INSPECTOR GRADE II, CIRCLE NO.12** 39 WP(C)15135 OF 2019 **EXHIBIT-R2(B)** **TRUE COPY OF THE REPRESENTATION DATED 15/05/2019 TO THE SECRETARY** **EXHIBIT-R2(C) TRUE COPY OF THE STOCK LIST DATED 30/05/2019 PREPARED BY THE JUNIOR HEALTH INSPECTOR MR.S M.B. SREEJA** ## **ANNEXURES PRODUCED BY ADV.COMMISSIONER** **ANNEXURE A1: TRUE COPY OF NOTICE OF INSPECTION DT.19.6.2019.** **ANNEXURE A2: PHOTOGRAPHS OF VICKS PRODUCTS AND OTHER SIMILAR PRODUCTS, AVAILABLE IN THE SHOP ROOM.** **ANNEUXRE A3: PHOTOGRAPHS OF PERISHABLE PRODUCTS INSIDE THE SHOP ROOM.** ## **TRUE COPY** **P.A. TO JUDGE**