SURESH KUMAR v CHENGANNUR MUNICIPALITY

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN`** ## **`MONDAY, THE 5[TH] DAY OF JUNE 2023 / 15TH JYAISHTA, 1945`** ## **`WP(C) NO. 6005 OF 2021`** ## **`PETITIONER:`** ``` SURESH KUMAR AGED 52 YEARS S/O PARAMESWARAN PILLAI, THUNDATHIL HOUSE,UMAYATTUKARA MURI,KALLISSERY.P.O, THIRUVANDOOR VILLAGE,CHENGANNUR TALUK. ``` ``` BY ADVS. JACOB P.ALEX JOSEPH P.ALEX MANU SANKAR P. ``` ## **`RESPONDENTS:`** ``` 1CHENGANNUR MUNICIPALITY REPRESENTED BY ITS SECRETARY, CHENGANNOOR.P.O,ALAPPUZHA, KERALA-689121. 2SECRETARY,CHENGANNUR MUNICIPALITY, CHENGANNUR MUNICIPALITY OFFICE, CHENGANNOOR.P.O,ALAPPUZHA, KERALA-689121. 3DR.JOHNSAKHARIA, KOKKAPARAMBU VEEDU,LAKASSERRY MURI,CHENGANNUR VILLAGE, PIN-689121. BY ADVS. SHRI.S.HARIKRISHNAN,SC,CHENGANNUR MUNICI SRI.N.ASHOK KUMAR ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 6005 OF 2021 ``` ``` 2 ``` ## **JUDGMENT** Dated this the 5[th] day of June, 2023 ## This writ petition is filed seeking the following reliefs:- i. Issue a writ in the nature of certiorari or any other writ, order or direction calling for the records leading to the issuance of Exhibit P6 and quash the same. ii. Issue a writ in the nature of mandamus or any other writ, order or direction commanding the 2[nd] respondent to accept Exhibit P7 trade license renewal application without insisting petitioner to comply with the requirements for the issuance of a new license and further pass orders on the same in accordance with law. iii. Issue a writ in the nature of mandamus or any other writ, order or direction commanding the 1[st] respondent to pass fresh orders on Exhibit P5 appeal after hearing the petitioner or in the alternative. iv. Issue a writ in the nature of mandamus or any other writ, order or direction commanding the 1[st] respondent to communicate copy of the decision no 12 dated 28.01 2021 of the 1[st] respondent on Exhibit P5 appeal. v. Declare that the direction given by the 2nd respondent in Exhibit P4 is illegal, arbitrary and unreasonable to the extent it requires the petitioner to submit a fresh application after complying with the requirements of a new application. ## 2. Heard the learned counsel for the petitioner, the learned Standing Counsel appearing for respondents 1 and 2 ``` WP(C) NO. 6005 OF 2021 ``` ``` 3 ``` as well as the learned counsel appearing for the 3[rd] respondent. 3. It is submitted by the learned counsel for the petitioner that the petitioner is a statutory tenant/tenant holding over conducting a workshop in shop room bearing old Door No.1 in old Ward No.19 of the 1[st] respondent Municipality. The corresponding door number is 20/3 of the Municipality. It is contended that the petitioner had been conducting a workshop with license since 1997. The 3[rd] respondent who is the landlord has approached the Rent Control Court filing a rent control petition to evict the petitioner from the premises as RCP No.2/2020 which is pending before the Rent Control Court, Chengannur as evidenced by Ext.P1. It is submitted that when the petitioner submitted an application for renewal of licence, the same was rejected and the appeal submitted by the petitioner also was rejected. 4. The learned counsel for the petitioner submits that since the petitioner is a statutory tenant, no fresh consent from the Landlord is required for considering the application ``` WP(C) NO. 6005 OF 2021 ``` ``` 4 ``` for renewal of licence. Relying on a judgment of this Court in **Swapna Jestus v Pulpally Grama Panchayat [2013(1)KLT 444]** it is contended that even if there is a delay in submitting an application for renewal, the same is liable to be condoned on the late fee being paid by the petitioner. The petitioner places reliance on the judgment of the Apex Court in **Sudhakaran V. Corporation of Trivandrum [2016(3)KLT247(SC)** ] to contend that a tenant holding over does not require to submit any fresh consent of the landlord for consideration of an application for renewal of licence. 5. The respondents 1 and 2 have placed a counter affidavit on record stating that the impugned orders themselves would show that the petitioner has not obtained any licence from the Municipality since 2006-07. It is stated that the petitioner had a two wheeler workshop licence in respect of building No.19/19(1) of the Municipality up to the year, 2006-07. However, after 2006-07 no renewal application had been submitted by the petitioner. It was therefore ``` WP(C) NO. 6005 OF 2021 ``` ``` 5 ``` reported by the Health Inspector on 18/3/2020 that a sum of Rs.21,166/- is due from the petitioner towards 14 years’ licence fee, interest and penal interest. The Municipality had required the petitioner to pay the amounts and to avail new D&O licence under Section 447 of the Act for continuing the conduct of the workshop after clearing the arrears of licence fee, interest and penal interest. It is stated that the building number of his licensed premises differs from the present building number under his occupation and that the petitioner had failed to renew the municipal licence for 14 years. It is further submitted that the landlord had made a request for eviction of the tenant from the premises but the Municipality had informed the landlord that there can be no eviction by the Municipality for default in payment of the arrears of rent to the landlord. It is submitted that the parties had again moved the Municipality and the matter was considered and Ext.P4 detailed order was passed. Ext.P5 appeal was submitted by the petitioner pursuant to which the same was also considered and the appeal was declined by the municipal ``` WP(C) NO. 6005 OF 2021 ``` ``` 6 ``` council by Ext R2(e) order. It is submitted that Ext.P6 order is passed in pursuance of the dismissal of the appeal by the council. 6. The 3[rd] respondent has also placed a counter affidavit on record stating that the petitioner is conducting a workshop in the tenanted premises without any licence. It is stated that he is causing air pollution and water pollution and that the property in question is an old line building and that the respondent is liable to be heard when any application for licence submitted by the petitioner is being considered. 7. The petitioner has filed a reply affidavit stating that the petitioner is undoubtedly a statutory tenant in the premises. It is stated that property tax of the building was remitted by the landlord and receipt is in his possession and therefore the petitioner is unable to produce the documents as demanded by the Municipality in Ext.R2(e) for the consideration of his application for licence. Copy of Ext.P8 application for renewal of licence for the year, 2022-23 is also produced along with the reply affidavit. ``` WP(C) NO. 6005 OF 2021 ``` ``` 7 ``` 8. I notice that there is no serious dispute to the contention raised by the petitioner that he is a statutory tenant holding over, in view of the fact that the Rent Control Petition is pending before the competent Rent Control Court. In the above view of the matter, even in case the petitioner has to submit a fresh application for licence, the consent of the landlord may not be required in view of the fact that the tenancy is not disputed. Further the contention raised by the Municipality that the petitioner had no licence from 2006 onwards would make it clear that the application for renewal of licence cannot be considered even if the petitioner remits the licence fee with penalty in respect of the entire period from 2007-08 onwards. In the above view of the matter, in case the petitioner submits a fresh application for licence in respect of the current year, the same shall be considered by the Municipality without insisting on the consent by the landlord. However, the landlord who seems to have other contentions with regard to the grant of licence shall be put on notice and heard before ``` WP(C) NO. 6005 OF 2021 ``` ``` 8 ``` orders are passed on the application for fresh licence if any to be submitted by the petitioner. The petitioner as well as the 3[rd] respondent shall be heard and an appropriate decision shall be taken on the application for fresh permit if any to be submitted by the petitioner. The other statutory requirements for consideration of an application for licence shall be complied with by the petitioner. Ext.P6 shall not be acted upon by the respondents and all further proceedings shall be subject to the orders to be passed on the application submitted by the petitioner for fresh licence in accordance with law. Necessary steps shall be taken without undue delay by the Municipality, if the application is submitted by the petitioner. This writ petition is ordered accordingly. Sd/- **ANU SIVARAMAN JUDGE** ska ``` WP(C) NO. 6005 OF 2021 ``` ``` 9 ``` ## **`APPENDIX OF WP(C) 6005/2021`** ``` PETITIONER EXHIBITS EXHIBIT P1TRUE COPY OF RCP NO.2/2020 FILED BY THE 3RD RESPONDENT BEFORE THE HON'BLE RENT CONTROL COURT,CHENGANNUR. EXHIBIT P2TRUE COPY OF THE RECEIPT NO.90456 DATED 20.03.2020 EVIDENCING PAYMENT OF PROFESSIONAL TAX EXHIBIT P3TRUE COPY OF THE REPLY DATED 09.11.2020 SUBMITTED BEFORE THE 2ND RESPONDENT. EXHIBIT P4TRUE COPY OF THE ORDER NO.H1-995/20 DATED 18.11.2020 OF THE 2ND RESPONDENT EXHIBIT P5TRUE COPY OF THE APPEAL DATED 10.12.2020 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT ALONG WITH ACKNOWLEDGMENT. EXHIBIT P6TRUE COPY OF THE ORDER NO.H1-995/20 DATED 27.02.2021 ISSUED BY THE 2ND RESPONDENT EXHIBIT P7TRUE COPY OF THE APPLICATION DATED 04.03.2021 FILED BY THE PETITIONER ALONG WIHT COPY OF POSTAL RECEIPT. EXHIBIT P8TRUE COPY OF THE RENEWAL APPLICATION SUBMITTED BY THE PETITIONER FOR THE YEAR 2022-23 RESPONDENT’S EXHIBITS EXHIBIT R2(A)RELEVANT PAGE OF THE DEMAND REGISTER FOR THE YEAR 2006-07 EXHIBIT R2(B)TRUE COPY OF NOTICE NO.HI-995/20 DATED 7.10.2020 ISSUED BY THIS RESPONDENT TO PETITIONER EXHIBIT R2(C)TRUE COPY OF COMMUNICATION NO.HI-995/20 DATED 8/10/2020 ADDRESSED TO 3RD RESPONDENT EXHIBIT R2(D)TRUE COPY OF RESOLUTION NO.12 DATED 28/1/2021 OF THE MUNICIPAL COUNCIL EXHIBIT R2(E)TRUE COPY OF COMMUNICATION NO.H1-995/20 DATED 6/3/2021 ```