## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR.JUSTICE N.NAGARESH**
**WEDNESDAY, THE 8[TH] DAY OF SEPTEMBER 2021/17TH BHADRA, 1943**
**WP(C) NO. 11032 OF 2021**
## **PETITIONER:**
**THANIMA AGRO DEVELOPMENT SOCIETY, REG.NO.IDK/TC/163/2020, PALLIPPEEDIKA, VENGALLOOR P.O., IDUKKI DISTRICT, PIN-685 608, REPRESENTED BY ITS PRESIDENT JAYAN PRABHAKARAN.**
**BY ADVS. B.PREMNATH (E) SRI.C.MANOJ KUMAR(KAKKANAD)**
## **RESPONDENTS:**
- **1 SECRETARY, THODUPUZHA MUNICIPALITY, MUNICIPAL OFFICE, PIN-685 584.**
- **2 THODUPUZHA MUNICIPALITY, MUNICIPAL OFFICE, PIN-685 584, REPRESENTED BY ITS SECRETARY.**
- **3 P.ASHOK KUMAR,, KRISHNA KRIPA, NEDUMPILLIL, THODUPUZHA P.O., PIN-685 584.**
- **4 UMADEVI, W/O.ASHOK KUMAR, KRISHNA KRIPA, NEDUMPILLIL, THODUPUZHA P.O., PIN-685 584. BY ADVS. R1 & R2 SHRI.UNNIKRISHNAN V.ALAPPATT, SC R3-R4 ADV.SRI.K.MOHANAKANNAN R3-R4 ADV.SRI.BYJU RAGHAVAN E.**
**THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.09.2021, THE COURT ON 08.09.2021 DELIVERED THE FOLLOWING:**
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## **J U D G M E N T**
~ ~ ~ ~ ~ ~ ~ ~ ~
## _**Dated this the 8[th] day of September, 2021**_
The petitioner, a Society registered under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955, has filed this writ petition seeking to quash Ext.P7 and Ext.P9 notices and to declare that the word “written consent” occurring in Section 492(3) of the Kerala Municipalities Act, 1994 includes Ext.P4 Agreement with the 3[rd] and 4[th] respondents in which a consent is granted specifically for the business for which the licence is applied for.
2. A meeting of the petitioner-Society convened on 12.07.2020 decided to register the Society in the name “Thanima Agro Development Society, Pallipeedika” and to start a customer-friendly market in the name “Thanima 60 x 40 Customer Friendly Open Market”. The 3[rd] respondent was the Secretary of the Society. Ext.P4 rental agreement dated 27.08.2020 was made by the Society with respondents 3 and
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4, for a monthly rent of ₹25,000/- and it was agreed that a temporary shed will be constructed to house the Open Market. There are 28 employees working in the Open Market. As the demand of the 3[rd] respondent to increase the monthly rent to ₹50,000/- was not acceded to, the 3[rd] respondent resigned from the post of Secretary as per Ext.P6 on 25.11.2020, contends the petitioner.
3. The petitioner constructed the building in the rented premises, as agreed and submitted an application dated 16.03.2021 for licence from the 1[st] respondent-Secretary to the Municipality. The petitioner, apart from a copy of rental agreement, submitted consent of respondents 3 and 4 in the form of an affidavit. The 1[st] respondent issued Ext.P7 notice to the petitioner stating that respondents 3 and 4 have filed a complaint that their signature as contained in the affidavit is forged. The petitioner submitted Ext.P8 reply stating that the signatures are not forged and the complaint is as a retaliation to non-increasing of rent. On 23.04.2021, without adverting to Ext.P8 reply, the 1[st] respondent issued Ext.P9 notice directing
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to stop the functioning of the Open Market temporarily till a final decision is taken in the matter.
4. The petitioner contends that Exts.P7 and P9 are offending Article 19(1)(g) of the Constitution of India. The term ‘written consent’ occurring in Section 492(3) of the Kerala Municipalities Act, 1994 cannot be interpreted to mean a written consent other than Ext.P4 rent deed. Respondents 3 and 4 have not challenged the validity of the agreement. There is violation of the terms of the agreement. The notices do not disclose as to whose signature is allegedly forged. The petitioner was not heard before passing Ext.P9.
5. The 1[st] respondent contested the writ petition filing counter affidavit. The 1[st] respondent stated that on verification of the application for licence submitted by the petitioner, it was noted that the consent from the owner and MoU were not attached. Hence, the petitioner was asked to produce the same. The petitioner produced bye-laws and consent from the building owner. On 30.03.2021, a complaint was received from respondents 3 and 4 stating that they have not given
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consent. In the hearing conducted by the Health Supervisor, the respondents asserted that they have not given consent. On examining the signatures, a marginal difference in the signatures was noted. As per Section 492(3) of the Kerala Municipalities Act, a consent of the owner is mandatory for issuing licence.
6. Respondents 3 and 4 in their counter affidavit stated that an agreement for lease cannot be treated as a written consent for issuance of licence. Ext.P4 agreement is not in force as it ceased to exist due to violations of conditions. The 3[rd] respondent has not given his consent to the Municipality. Both the signatures in the affidavit are forged. The attempt of the petitioner is to grab the property of the 3[rd] respondent. The Municipality is bound to follow statutory provisions. The President representing the Society has criminal antecedents. The writ petition therefore deserves to be dismissed with exemplary costs.
7. Heard the learned counsel for the petitioner, the learned Standing counsel for respondents 1 and 2 and the
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counsel for respondents 3 and 4.
8. As per Section 492(3) of the Kerala Municipalities Act, 1994, any person intending to obtain a licence or permission for the first time and where the applicant is not the owner of the premises in question, shall along with the application produce the written consent of the owner of the premises and the period of the licence shall not exceed the period if any specified in the consent. The 1[st] respondent is not issuing a licence to the petitioner for the reason that the petitioner has not produced valid consent. The petitioner would submit that Ext.P4 agreement should be treated as valid consent and the 1[st] respondent is legally bound to issue a licence on the basis of Ext.P4 agreement. The question arising for consideration is whether Ext.P4 can be treated as a consent as contemplated under Section 492(3) of the Kerala Municipalities Act, 1994.
9. Section 492(3) of the Kerala Municipalities Act, 1994, reads as under:
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“492(3) Where any person intending to obtain a licence or permission for the first time and where the applicant is a person other than the owner of the premises in question, he shall, along with the application produce the written consent of the owner of the premises and the period of the licence shall not exceed the period, if any, specified in the consent.”
10. The statute requires production of written consent when the licence is sought for the first time. In the present case, the licence is sought for the first time. The learned counsel for the petitioner relied on a Division Bench judgment of this Court in _**Babu v. Vijayan** [2019 (1) KLT 684]_ wherein this Court has held that a tenant cannot be deprived of running a lawful business merely because the landlord withholds his consent and that a valid tenancy itself has the implied authority of the landlord for legitimate use of the premises by the tenant. However, it has to be noted that in the said judgment, the Court came to a finding that the application for licence therein was not a first time application, but it was an application for renewal of licence. It was with that finding, the Court held that consent of the owner is not required for renewal.
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11. The learned counsel for the petitioner relied on the judgment of the Hon’ble Apex Court in _**Sudhakaran v. Corporation of Trivandrum** [2016 (3) KLT 247 (SC)]._ The said judgment of the Apex Court was also delivered in the context of an application for renewal of licence. The learned counsel for the petitioner pointed out that though the case was of a renewal of licence, the Apex Court has held in paragraph 8 as follows:
“8. After due consideration of the issues involved, we find merit in the submission made on behalf of the appellant. The statutory provision already quoted above shows that the requirement of consent of landlord is applicable only when a person intends to obtain a licence for the first time. Renewal or subsequent application for obtaining licence on expiry of the period of the existing licence, during the currency of the tenancy, is not applicable for obtaining licence. Even in the case of application for obtaining licence 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.”
The said judgment has made it clear that the dictum will apply to renewal of licences also, as a valid tenancy itself has implied authority.
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12. This Court is of the considered view that the said judgment of the Apex Court cannot be of much help to the petitioner. Firstly, in the said judgments, the Apex Court was considering the case of a statutory tenancy under the Kerala Buildings (Lease and Rent Control) Act, 1965. In the petitioner’s case, Ext.P4 would show that it is a Deed of Licence, wherein the petitioner is to construct a shed in the premises owned by respondents 3 and 4 subject to conditions made therein. The said agreement _prima facie_ is not governed by any rent control law.
13. This fact gains importance as the 3[rd] respondent has filed a counter affidavit stating that the beneficiary of Ext.P4 agreement has failed to comply with the conditions stipulated therein and hence the agreement is not in force. Therefore, the existence of Ext.P4 agreement at the time of submission of application of renewal of licence itself is doubtful, which issue will have to be agitated before a competent court.
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14. In this case, the petitioner has produced Ext.R3(e) affidavit along with their application for licence, evidencing the consent given by the respondents. The 3[rd] respondent would state that the signature appearing therein is not put by him. Ext.R3(g) FIR has been lodged in Thodupuzha Police Station alleging that the said document is forged. The Health Supervisor of the Municipality, who processed the application, also noted that there is marginal difference in signatures.
15. The petitioner argued that no hearing was conducted before passing Ext.P9. Ext.P9 would show that respondents 1 and 2 have not taken a final decision in the application for licence submitted by the petitioner. The petitioner appears to have started the market even before obtaining a licence.
In such circumstances, this Court does not find any illegality committed by respondents 1 and 2, in issuing Ext.P7 and P9 notices. The writ petition is therefore dismissed.
Sd/- **N. NAGARESH, JUDGE**
aks/06.09.2021
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## **APPENDIX OF WP(C) 11032/2021**
**PETITIONER'S EXHIBITS:**
**EXHIBIT P1 TRUE COPY OF THE RESOLUTION OF THE PETITIONER OF FORMING A COMMITTEE, CONTAINING THE DETAILS OF THE COMMITTEE MEMBERS DATED 12.07.2020.**
**EXHIBIT P2 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER TO THE DISTRICT REGISTRAR, IDUKKI SIGNED BY THE 3RD RESPONDENT AND OTHERS, DATED 29.07.2020.**
- **EXHIBIT P3 TRUE COPY OF THE LETTER NO.NIL OF THE SECRETARY OF THE PETITIONER AUTHORIZING SRI.JAYAN PRABHAKARAN DATED 11.04.2021.**
- **EXHIBIT P4 TRUE COPY OF THE AGREEMENT BETWEEN 3RD AND 4TH RESPONDENTS AND SRI.JAYAN PRABHAKARAN STYLED AS LICENSE AGREEMENT DATED 27.08.2020.**
- **EXHIBIT P5 TRUE COPY OF THE DETAILS OF THE EMPLOYEES OF THANIMA 60 X 40 CUSTOMER FRIENDLY OPEN MARKET DATED NIL.**
- **EXHIBIT P6 TRUE COPY OF THE RESIGNATION LETTER OF THE 3RD RESPONDENT ADDRESSED TO THE PRESIDENT AND EXECUTIVE COMMITTEE MEMBERS OF THE PETITIONER DATED 25.11.2020.**
- **EXHIBIT P7 TRUE COPY OF THE NOTICE NO.H2-7422/2021 OF THE 1ST RESPONDENT DATED 03.04.2021.**
- **EXHIBIT P8 TRUE COPY OF THE REPLY OF THE PETITIONER THROUGH ITS SECRETARY TO THE 1ST RESPONDENT DATED 07.04.2021.**
**EXHIBIT P9 TRUE COPY OF THE NOTICE NO.H2-7422/2021 OF THE 1ST RESPONDENT TO THE PETITIONER DATED 23.04.2021.**
**RESPONDENTS' EXHIBITS**
- **EXHIBIT R3(a) TRUE COPY OF THE LETTER SHOWING ACCEPTANCE OF RESIGNATION IN THE MEETING HELD ON 25.11.2020.**
**EXHIBIT R3(b) TRUE COPY OF THE COMMUNICATION SENT BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT, DATED 30.03.2021.**
**EXHIBIT R3(c) TRUE COPY OF THE OWNERSHIP CETIFICATE**
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**ISSUED BY THE 1ST RESPONDENT DATED 24.03.2021.**
**EXHIBIT R3(d) TRUE COPY OF THE POSSESSION CERTIFICATE IN RESPECT OF THE PROPERTY ISSUED BY THE VILLAGE OFFICER DATED 24.06.2020.**
**EXHIBIT R3(e) TRUE COPY OF THE AFFIDAVIT DATED 12.03.2021 SUBMITTED BY THE WRIT PETITIONER BEFORE THE 1ST RESPONDENT**
**EXHIBIT R3(f) TRUE COPY OF THE STATEMENT GIVEN BY THE 3RD RESPONDENT BEFORE THE HEALTH SUPERVISOR ATTACHED TO THE 1ST RESPONDENT MUNICIPALITY.**
**EXHIBIT R3(g)**
**EXHIBIT R3(h)**
**TRUE COPY OF THE FIR IN CRIME NO.1131/2021 OF THODUPUZHA POLICE STATION TRUE COPY OF THE COMMUNICATION SENT BY THE 1ST RESPONDENT TO THE STATION HOUSE OFFICER, THODUPUZHA POLICE STATION DATED 23.04.2021.**
ncd
