Sheelakumari v. Corporation of Kollam & ors

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 23[RD] DAY OF AUGUST 2023 / 1ST BHADRA, 1945 W.P.(C) NO. 16345 OF 2023** ## **PETITIONERS:** **SHEELAKUMARI, AGED 59 YEARS, D/O BHANUMATHI AMMA, RESIDING AT KALEELIL HOUSE,** **MANAYILKULANGARA, THIRUMULLAVARAM P.O, KOLLAM DISTRICT, PIN – 691012.** - **BY ADVS.** - **R.NIKHIL** **SAJNA JALEEL** ## **RESPONDENTS:** - **1 CORPORATION OF KOLLAM,REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, KOLLAM, KOLLAM DISTRICT, PIN – 691001.** - **2 THE SECRETARY, CORPORATION OF KOLLAM, CORPORATION OFFICE, KOLLAM, KOLLAM DISTRICT, PIN – 691001.** - **3 TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, NANTHANCODE, KAWDIAR P.O, THIRUVANANTHAPURAM DISTRICT, PIN – 695003.** - **4 ASSISTANT DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, KOLLAM DEVASWOM GROUP, ANANDAVALEESWARAM, PUNNATHALA, KAANKATHU MUKKU, KOLLAM DISTRICT, PIN – 691007.** - **5 SUB GROUP OFFICER, ANANDAVALEESWARAM DEVASWOM SUB GROUP OFFICE, TRAVANCORE DEVASWOM BOARD, THIRUMULLAVARAM P.O, KOLLAM DISTRICT, PIN – 691012.** 2 W.P.(C) No.16345 of 2023 **6 THE CLEAN CITY MANAGER, HEATH WING, CORPORATION OF KOLLAM, CORPORATION OFFICE, KOLLAM, KOLLAM DISTRICT, PIN – 691001.** **R1, R2, R6 BY SHRI.S.SREEKUMAR (KOLLAM), SC R3 TO R5 BY ADV SANTHOSH KUMAR G** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 14.08.2023, THE COURT ON 23.08.2023 DELIVERED THE FOLLOWING:** 3 W.P.(C) No.16345 of 2023 4 W.P.(C) No.16345 of 2023 ## **JUDGMENT** ## P.G. Ajithkumar, J. The petitioner, who claims to be a tenant in shop room bearing door No.210 of the Kalangara Memorial Devaswom Building, Anandavalleswaram, Kollam, has filed this Writ Petition under Article 226 of the Constitution of India seeking a writ of mandamus directing respondent Nos.1 and 2, the Corporation of Kollam and its Secretary, to renew her license for the shop she had been conducting in that room. Ext.P7 is a communication sent by the 1[st] respondent to the petitioner asking her to produce necessary documents showing that she was holding shop No.50/169. It is stated in it that the licence was issued to her earlier for room No.50/162, but it was a mistake. The petitioner therefore seeks to quash Ext.P7 order. 2. This Writ Petition came up for admission before a learned Single Judge. On 19.06.2023 the learned Judge directed to list it before the Devaswom Bench. 3. Respondent Nos.3 to 5 filed a counter affidavit pointing out that an amount of Rs.7,41,223/- is due from the 5 W.P.(C) No.16345 of 2023 petitioner towards rent arrears. 4. On 01.08.2023, the learned counsel appearing for the petitioner expressed the intention of the petitioner to withdraw from the Writ Petition. However, considering the rival contentions, especially that the petitioner had suppressed the decree passed against her in O.S.No.5 of 2022 by the Principal Munsiff’s Court, Kollam, we proceeded to consider the matter on merits. The petitioner thereafter filed a reply-affidavit producing therewith Exts.P8 to P12. 5. Heard the learned counsel for the petitioner, the learned Standing Counsel for the Corporation of Kollam and the learned Standing Counsel for the Travancore Devaswom Board. 6. The fact that the petitioner was given on lease a room in Kalangara Memorial Devaswom Building, Anandavalleswaram on a monthly rent of Rs.7,000/- is not in dispute. Ext.P1 is the letter issued by the 2[nd] respondent allotting the room to the petitioner following a public auction. Ext.P2 is the lease deed entered into in that regard. Building 6 W.P.(C) No.16345 of 2023 number stated in Ext.P2 is 205 in Kalangara Memorial Devaswom Building. The petitioner would contend that following a dispute with respect to the number of the said room, the 4[th] respondent-Assistant Devaswom Commissioner issued Ext.P4 consent deed stating that room No.210 was the room allotted to the petitioner. Following that, the 2[nd] respondent issued Ext.P5 licence to the petitioner for conducting a beauty parlour and stitching centre in room No.27/210. 7. The petitioner would contend that following the advent of COVID-19 pandemic, she could not conduct the business for a considerable period and that resulted in nonpayment of monthly rent for a few months. The 3[rd] respondent filed O.S.No.5 of 2022 before the Munsiff’s Court, Kollam, essentially for the reason of the rent fell in arrears. While so, the petitioner said to have approached the 1[st] respondent for renewal of her licence, but she was asked to produce necessary documents showing that she was in possession of room No.50/169. In Ext.P7, it is stated that the licence was earlier issued with respect to room No.50/162, 7 ## W.P.(C) No.16345 of 2023 but it was a mistake. The petitioner explained in the Writ Petition that renumbering of the rooms had taken place on account of the delimitation of wards in the Corporation of Kollam and ward No.27 has thereby become part of ward No.50. What is discernible from Ext.P7 is that the licence was issued to the petitioner to room No.50/162(new), whereas she wanted licence for room No.50/169. The 1[st] respondent asked the petitioner in Ext.P7 to produce documents showing her entitlement to get licence for room No.50/169. 8. The learned standing Counsel for the Travancore Devaswom Board would submit that the petitioner did not pay rent for not even a month after commencement of the lease and that resulted in filing O.S.No.5 of 2022 before the Munsiff’s Court, Kollam. Ext.P6 is a copy of the plaint in that suit. The learned Standing Counsel would submit that the said suit was decreed as early as on 26.09.2022 directing the petitioner to surrender vacant possession of the room in question and also to pay the arrears of rent/mesne profits, but the petitioner purposefully suppressed that fact while filing 8 ## W.P.(C) No.16345 of 2023 this Writ Petition. It is submitted that the petitioner presented her case disguising that rent for a short period alone was due and that too on account of the restrictions relating to COVID-19. 9. The learned counsel appearing for the petitioner would submit that the real facts are explained in the reply affidavit. It is claimed that the petitioner was not aware of the decreeing of the suit and immediately on getting knowledge about the same, she filed applications before the Munsiff’s Court, Kollam for setting aside the decree along with an application to condone the delay. She produced copies of those applications as Exts.P9 and P10. It is further stated in the reply affidavit that the rent from the very beginning is alleged to be due not because she did not pay the rent at all, but the rent she paid for a considerable period amounting to Rs.3 lakhs was misappropriated by the Devaswom staff. A complaint in that regard was claimed submitted by her before the Kollam West Police Station, a copy of the complaint she purported to have submitted is produced as Ext. P11. 9 W.P.(C) No.16345 of 2023 10. The learned counsel appearing for the petitioner would submit that having obtained possession of the room in question, as a tenant in a lawful means, and having obtained a licence for conducting business in the said room as evidenced by Ext.P5, renewal of her licence should not have been declined. In this regard, the learned counsel places reliance on the decisions of the Apex Court in **Sudhakaran v. Corporation of Trivandrum and another [(2016) 14 SCC** **263 : AIR 2016 SC 3180]** . As regards the alleged suppression of material facts concerning arrears of rent and the decree of the civil court against the petitioner, the learned counsel would submit that when there was payment of Rs.3 lakhs towards rent and the Devaswom employees themselves misappropriated such payments, those allegations shall not be taken seriously. Further it is submitted that the petitioner as well as her husband were to undergo treatment for serious illness, and that she could not know about the decree passed in O.S.No.5 of 2022 in time, since the number shown in the notice served on her was O.S.No.4 of 2022. It is true that in 10 W.P.(C) No.16345 of 2023 the affidavit filed in support of Exts.P9 and P10 applications before the Principal Munsiff’s Court, Kollam, the petitioner stated that there was a mistake in the number of the case in the notice served on the petitioner. Similarly, Ext.P11 complaint contains an allegation that Rs.3 lakhs she paid towards rent was misappropriated by the Devaswom employees. 11. But, in the complaint the date on which it was submitted before the police is not stated. No receipt issued from the police station nor any document showing that some action was taken on that complaint by the police is produced. Exts.P9 and P10 applications were filed after filing of this Writ Petition. In view of those facts, we find no merit in the contention of the petitioner that she had paid Rs.3 lakhs towards arrears of rent and was unaware of the decree in O.S.No.5 of 2022 while filing the Writ Petition. 12. It may be noted that nothing about payment of Rs.3 lakhs to Devaswom employees and its misappropriation by them resulting in filing of a police complaint has been 11 W.P.(C) No.16345 of 2023 stated in the Writ Petition. According to the petitioner, the Devaswom Board refused to issue a consent letter for the reason of the pendency of the suit. A copy of the plaint in that suit is marked as Ext.P6 in the Writ Petition. So, the petitioner cannot feign ignorance of the plea of the Devaswom Board that the rent from the very beginning is due. Still she did not choose to state in the Writ Petition about payment of Rs.3 lakhs to the Devaswom employees. No prudent person can avoid stating such a fact, had it been a true fact. The learned Standing Counsel for the Travancore Devaswom Board would submit that the persons named in Ext.P11 complaint were relieved from the Devaswom Office at Kollam much before the date on which payment was said to have been made to them. Those facts further make the claim of the petitioner that she paid Rs. 3 lakhs towards rent quite improbable. 13. In **Sudhakaran [2016 14 SCC 263]** the Apex Court held that consent of the landlord is not a condition precedent for the renewal of a licence issued by a local 12 W.P.(C) No.16345 of 2023 authority to a statutory tenant. In the said case the reason for denying a consent letter by the landlord was pendency of a petition for eviction before the Rent Control Court. The Apex Court by affirming the view taken by this Court, held that the tenant having been in occupation of the premises as a statutory tenant, pendency of an eviction petition or denial by the landlord to issue a consent letter is not a reason to refuse renewal of licence of the tenant. 14. The said principle cannot be applied in this case for more reasons than one. The petitioner, as pointed out above, suppressed material facts while filing this Writ Petition. From the materials on record, it can only be said that an amount of Rs.7,41,223/- is due from the petitioner towards arrears of rent/mesne profits. The petitioner did not disclose about the decree in O.S.No.5 of 2022 in the Writ Petition. Moreover, she has stated incorrect facts in the Writ Petition. 15. As stated by Scrutton, L.J, in **R. v** . **Kensington Income Tax Commissioners [(1917) 1 K.B. 486]** , an applicant who does not come with candid facts and ‘clean breast’ 13 ## W.P.(C) No.16345 of 2023 cannot hold a writ of the court with ‘soiled hands’. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or misrepresentation, which has no place in equitable and prerogative jurisdiction. 16. In **Prestige Lights Limited v. State Bank of India [(2007) 8 SCC 449]** the Apex Court reiterated that a prerogative remedy is not a matter of course. Therefore, in exercising extraordinary power, a writ court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppress relevant materials or is otherwise guilty of misleading the court, the court may dismiss the action without adjudicating the matter. This rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible. 14 W.P.(C) No.16345 of 2023 17. In **Prestige Lights Limited [(2007) 8 SCC 449]** the Apex Court held further that, under Article 226 of the Constitution of India, the High Court is exercising discretionary and extraordinary jurisdiction. Over and above, a Court of Law is also a Court of Equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the court, the writ court may refuse to entertain the petition and dismiss it without entering into the merits of the matter. 18. In **Usha Nanthini v. Regional Transport Authority, Palakkad [2018 (2) KHC 89]** , a decision rendered by one among us [Anil K. Narendran, J.], it was held that, once it is found that the petitioner has approached this Court invoking the extraordinary jurisdiction under Article 226 of the Constitution of India by suppressing material facts and making false statements, such an attempt made by the petitioner to abuse the process of this Court has to be dealt 15 ## W.P.(C) No.16345 of 2023 with appropriately. In such cases, this Court has ample power to decline the permission sought for withdrawal of the writ petition. Dismissal of such writ petitions imposing exemplary costs is inevitable, in order to prevent abuse of process of this Court and to preserve purity of judicial proceedings. The law laid down in **Usha Nanthini [2018 (2) KHC 89]** has been affirmed by a Division Bench of this Court in the judgment dated 21.02.2018 in W.A.No.455 of 2018. See: **Usha Nanthini v. Regional Transport Authority, Palakkad [2018/KER/8915]** . 19. That apart, what is required in Ext.P7 by the 1[st] respondent-Corporation is that if to grant a licence to the petitioner for room No.50/169, documents showing that she is in occupation of that room should be produced; since the licence was earlier issued in relation to room No.50/162. Thus the licence is sought to be renewed in respect of a room different from the one mentioned in Ext.P5 licence issued to the petitioner on 19.04.2018. Questions of facts involved in that aspect insofar as the documents to be produced are the 16 W.P.(C) No.16345 of 2023 documents to show that the petitioner is in possession of the very same room that was let out to her. That together with serious suppression of material facts in the Writ Petition disentitles the petitioner from invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India to claim a relief of writ of mandamus. Therefore, the Writ Petition is liable only to be dismissed. The Writ Petition is accordingly dismissed. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 17 W.P.(C) No.16345 of 2023 ## **APPENDIX OF WP(C) 16345/2023** ## **PETITIONER EXHIBITS** - **EXHIBIT P1** - **A TRUE COPY OF THE LETTER BEARING NO: ROC NO.13771/17/M DATED 12.02.2018 ISSUED BY THE 3RD RESPONDENT TO THE DEVASWOM COMMISSIONER** - **EXHIBIT P2 A TRUE COPY OF THE DEED OF LEASE DATED 24.02.2018 ENTERED INTO BY THE 4TH RESPONDENT** - **EXHIBIT P3 A TRUE COPY OF THE LETTER BEARING NO: 615/23.03.2018 DATED 23.03.2018 ISSUED BY THE 4TH RESPONDENT TO THE 2ND RESPONDENT** - **EXHIBIT P4 A TRUE COPY OF THE CONSENT LETTER DATED 01.03.2018 ISSUED BY THE 4TH RESPONDENT** - **EXHIBIT P5 A TRUE COPY OF THE LICENSE NO: 140168111800004 DATED 19.04.2018** - **EXHIBIT P6 A TRUE COPY OF THE PLAINT IN O.S NO:5 OF 2021 ON THE FILES OF THE HON'BLE PRINCIPAL MUNSIFF'S COURT, KOLLAM** - **EXHIBIT P7 A TRUE COPY OF THE LETTER BEARING NO: H216073/23 DATED 09.05.2023 ISSUED BY THE 6TH RESPONDENT** - **EXHIBIT P8 A TRUE COPY OF THE MEDICAL CERTIFICATE DATED 12.07.2023** - **EXHIBIT P9 A TRUE COPY OF THE PETITION NUMBERED AS R.P NO:38/2023 IN O.S NO: 5/2022 PREFERRED BY THE PETITIONER TO SET ASIDE THE EX-PARTE DECREE** 18 W.P.(C) No.16345 of 2023 ## **EXHIBIT P10** **A TRUE COPY OF THE PETITION NUMBERED AS IA NO:1/2023 IN O.S NO: 5/2022 PREFERRED BY THE PETITIONER TO CONDONE THE DELAY IN FILING THE PETITION TO SET ASIDE THE EX-PARTE DECREE** ## **EXHIBIT P11** **A TRUE COPY OF THE COMPLAINT DATED NIL SUBMITTED BEFORE THE STATION HOUSE OFFICER, KOLLAM WEST POLICE STATION AND ITS TYPED LEGIBLE COPY** ## **EXHIBIT P12** **A TRUE COPY OF THE INTERIM ORDER DATED 31.03.2023 IN WP(C) NO: 6909/2023 ON THE FILES OF THIS HON'BLE COURT** ## **RESPONDENT EXHIBITS** **EXHIBIT-R3(A)** **TRUE COPY OF THE JUDGMENT DATED 26/09/2022 IN O.S.NO.05/2022 OBTAINED FROM THE WEBSITE.**