Sudhakaran v. Kodumon Grama Panchayat and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 24TH DAY OF JUNE 2019 / 3RD ASHADHA, 1941** ## **WP(C).No.12665 of 2019** ## **PETITIONER:** **SUDHAKARAN AGED 70 YEARS KAILASH HOUSE, KODUMON, ADOOR, PATHANAMTHITTA-691 555 BY ADV. SRI.SAJEEV KUMAR K.GOPAL** ## **RESPONDENTS:** |**1**|**THE KODUMON GRAMA PANCHAYAT**| |---|---| ||**EZHAMKULAM KAIPATTOOR ROAD, ADOOR -691 555,**| ||**REPRESENTED BY ITS SECRETARY.**| |**2**|**THE SECRETARY,**| ||**KODUMON GRAMA PANCHAYAT, EZHAMKULAM KAIPATTOOR ROAD,**| ||**ADOOR-691 555**| |**3**|**JOLLY THOMAS,**| ||**W/O. THOMAS CHERIAN BINCHU VILASAM CHARUVILA**| ||**VADAKKETHIL, KODUMON-691 555.**| |**4**|**BINCHU C THOMAS,**| ||**S/O. THOMAS CHERIAN, BINCHU VILASAM, CHARUVILA**| ||**VADAKKETHIL, KODUMON-691 555**| ||**BY ADV. SRI.MANU RAMACHANDRAN, SC**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.12665 of 2019** **2** ## **JUDGMENT** The petitioner, who is the tenant in building No.XIII/141 of Kodumon Grama Panchayat, which is owned by respondents 3 and 4, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 2[nd] respondent to accept his application for renewal of licence, without insisting for No Objection Certificate from respondents 3 & 4 in respect of the aforesaid building and grant the same so as to enable him to continue the Hotel business. The petitioner has also sought for a declaration that No Objection Certificate from the landlord is not necessary for the renewal of his licence and is against the provisions of the Kerala Panchayat Raj Act, 1994. 2. On 26.04.2019, when this writ petition came up for admission, this Court admitted the matter on file and issued notice by speed post to respondents 1 to 4. While adjourning the matter to 28.05.2019, this Court **WP(C).No.12665 of 2019** **3** ordered that in the meanwhile, the petitioner would be permitted to continue the business, which he has been conducting on the strength of Ext.P1. 3. On 28.05.2019, when this writ petition came up for consideration, the learned counsel for the respondents submitted that the licence of the petitioner's hotel has already been renewed for the year 2019-20 and he has also been issued with a licence dated 21.05.2019. Awaiting return of notice, the matter was adjourned. 4. Heard the learned counsel for the petitioner and also the learned counsel for respondents 1 and 2. Despite service of notice, none appears for respondents 3 and 4. ## 5. _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 **WP(C).No.12665 of 2019** **4** 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 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 **WP(C).No.12665 of 2019** **5** 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.” 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]**_ . 6. 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 **WP(C).No.12665 of 2019** **6** 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. 7. 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.” 8. In view of the law laid down in the decisions **WP(C).No.12665 of 2019** **7** referred to supra, the consent of the landlord cannot be insisted upon for granting renewal of licence. 9. As already noticed, during the pendency of this writ petition, the petitioner has already been granted renewal of licence. In such circumstances, recording the said fact, this writ petition is disposed of. **Sd/-** **ANIL K.NARENDRAN, JUDGE** AV/26/6 **WP(C).No.12665 of 2019** **8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE D& O LICENSE ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2018-2019 VALID FROM 29.06.2018 TO 31.03.2019.** **EXHIBIT P2** **TRUE COPY OF THE PLAINT IN O.S. NO. 104/2019 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, ADOOR.**