Thanima Agro Development Society v. The Secretary, Thodupuzha Municipality, Thodupuzha Municipality, Ashok Kumar, Uma Devi

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 18[TH] DAY OF JANUARY 2022 / 28TH POUSHA, 1943** **WA NO. 1524 OF 2021** **AGAINST THE JUDGMENT IN WP(C) 11032/2021 OF HIGH COURT OF** **KERALA DATED 3.9.2021** ## **APPELLANT/PETITIONER:** **THANIMA AGRO DEVELOPMENT SOCIETY REG.NO. IDK/TV/163/2020, PALLIPEDIKA, VENGALLOOR P.O, IDUKKI DISTRICT, PIN-675608. REPRESENTED BY ITS PRESIDENT JAYAN PRABHAKARAN.** **BY ADVS. M.R.NANDAKUMAR BABU SEBASTIAN (NIRAPPEL) MAYIKA SUNDAR ARJUN ANIL KRISHNA MOHAN P.** ## **RESPONDENTS/RESPONDENTS:** - **1 THE SECRETARY, THODUPUZHA MUNICIPALITY MUNICIPAL OFFICE, PIN - 685584.** - **2 THODUPUZHA MUNICIPALITY, MUNICIPAL OFFICE, PIN – 685584, REPRESENTED BY ITS SECRETARY.** - **3 p. ASHOK KUMAR, KRISHNAKRIPA, NEDUMPILLIL, THODUPUZHA P.O, PIN- 685584.** - **4 UMA DEVI** **W/O. ASHOK KUMAR, KRISHNAKRIPA, NEDUMPILLIL, THODUPUZHA P.O, PIN- 685584.** **SRI.UNNIKRISHNAN V ALAPATT FOR R1 AND R2, SRI.K.MOHANAKANNAN FOR R3 AND R4** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 18.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _**W.A.1524/2021**_ 2 ## J U D G M E N T ## Dated this the 18[th] day of January, 2022 ## S. Manikumar, CJ. Before the writ court, petitioner has sought for the following reliefs: - “i. Declare that the word "written consent" occurring in Section 492(3) of the Kerala Municipality Act, 1994 includes Ext.P4 agreement with the 3[rd] and 4[th] respondent in which consent is granted specifically for the business for which the license is applied for; - ii. Issue a Writ of Certiorari other appropriate Writ or Order and quash Exhibits P7 and P9 notices; iii. Issue a Writ of Mandamus or other appropriate Writ or Order directing the 1[st] respondent to grant license to the petitioner to conduct “Thanima 60 x 40 Customer Friendly Open Market" in Building No.1/448C in the premises covered by Exhibit P4 agreement, forthwith.” ## 2. Short facts, which necessitated the filing of the writ petition are as under: An application for registration of the petitioner society was submitted on 29.07.2020. Later, the petitioner society was registered under the Travancore Cochin Literary Scientific and Charitable Societies Act, 1955, with Reg. No.IDK/TC/163/2020. _**W.A.1524/2021**_ 3 3. Respondent No.3 was elected as the Secretary of the petitioner society. Ext.P4 is the agreement 27.8.2020, with the 3[rd] and 4[th] respondents to conduct a shop in the name 'Thanima 60 x 40 Customer Friendly Open Market' by the petitioner in the premises Owned by the 3[rd] and 4[th] respondents. 4. The monthly rent was fixed as Rs.25,000/- and the period of agreement was 11 months. Later, the 3[rd] respondent demanded Rs.50,000/- as rent against the terms of the agreement. He, later resigned from the post of Secretary. Petitioner continued to pay the rent and it has been accepted by the 3[rd] and 4[th] respondents till date. After obtaining the building number to conduct the shop, as 1/448C, petitioner applied for license before the 1[st] respondent. 5. 1[st] respondent issued Exhibit P7 notice dated 3.4.2021, to show cause to the petitioner, pointing out that there is a difference in signature in the consent of 3[rd] and 4[th] respondents submitted in the form of an affidavit, to which petitioner filed Exhibit P8 reply dated 8.04.2021. 6. Without considering any of the contentions in Exhibit P8 reply and without issuing notice and hearing the petitioner, the Secretary of Thodupuzha Municipality/1[st] respondent, issued Exhibit P9 notice on _**W.A.1524/2021**_ 4 23.04.2021, directing the petitioner to stop functioning temporarily, till a decision is taken on the difference in the signature in the consent of the 3[rd] and 4[th] respondents. 7. It is further contended that when there is a valid agreement (Exhibit P4) as on date and when the 3[rd] and 4[th] respondents have not disputed its validity till date, the 1[st] respondent ought not to have insisted upon producing another written consent, in terms of Section 492(3) of the Kerala Municipality Act, 1994. 8. Relying on the decisions reported in **Sudhakaran v. Corporation of Trivandrum [2016 (3) KLT 247 (SC)]** and **Babu v. Vijayan** [ **2019 (1) KLT 684],** learned counsel submitted that it is settled law that when there is an agreement specifying the conduct of a particular business for which the license is applied, there is an implied consent of the landlord. 9. Writ petition has been filed inter-alia to declare that the word "written consent" occurring in Section 492(3) of the Kerala Municipality Act, 1994 includes Ext.P4 agreement, in which consent is granted specifically for the business for which the license is applied for. Stay of the operation of Exhibits P7 and P9 is also sought as the Open Friendly _**W.A.1524/2021**_ 5 Market, conducted by the petitioner, is a running Concern with 28 employees and supplying essential items. 10. Adverting to the rival submissions, referring to Section 492(3) of Kerala Municipalities Act, 1994, decisions relied on by the learned counsel for both the parties and after considering Exhibit R3(e), an affidavit in I.A. No.1 of 2021 in W.P(C) No.11032 of 2021, wherein it is averred that the signature of respondents 3 and 4 therein were forged, thus, fraudulently creating documents and that an FIR in crime No.1131 of 2021 dated 17.7.2021 under Section 406, 465, 471 read with Section 34 of Indian Penal Code on the file of Thodupuzha Police Station has been registered against Sri. Jayan Prabhakaran @ Jayakumar, the President of Thanima Agro Development Society, the appellant herein, writ court declined to grant the reliefs and dismissed the writ petition as hereunder : “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 3rd 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. _**W.A.1524/2021**_ 6 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." 11. Though Mr. M.R. Nandakumar, learned counsel for the appellant assailed the correctness of the above said judgment on various grounds raised, we are not inclined to interfere with the same for the simple reason that consent stated to have been furnished by the landlord itself is stated to have been made on forgery and fraud, alleged to have been committed by the President of the Appellant society namely, Jayan Prabhakaran. 12. For brevity, averments in paragraph 2 made in I.A.No.1/2021 in W.P(C) No.11032 of 2021, taken note of by the writ court, is reproduced: 2. I have already filed a counter affidavit in the matter pointing out that there is misrepresentation, forgery and fraud committed by President of the Petitioner Society _**W.A.1524/2021**_ 7 namely Jayan Prabhakaran. With regard to the same a crime has been registered by the Thodupuzha police as Crime No.1131/2021 alleging offences punishable u/s.406, 465, 471 and 34 of IPC. Serious offences based on forging the signatures of the Respondents 3 and 4 and fraudulently creating documents and the same was submitted before the 1[st] respondent. A copy of the FIR in crime No.1131/2021 of Thodupuzha Police Station, registered against Sri.Jayan Prabhakaran alias Jayakumar and is produced herewith and marked as Exhibit R3(g). The investigation is in progress. 13. Exhibit R3(g) is the FIR registered against Jayan Prabhakaran, President of Thanima Agro Development Society in Crime No.1131 of 2021 dated 17.7.2021, under Sections 406, 465, 471 read with Section 34 of IPC, on the file of Thodupuzha Police Station. 14. When Thodupuzha Municipality sought for clarification from the Department vide Exhibit P9, the Police, after considering the documents produced, has prima facie found that signatures of the landlords have been forged, which resulted in registration of FIR. 15. When the documents produced before the Municipality is now stated to have been forged, no direction can be issued to the said Municipality to quash Exhibit P7 and P9 notices and consequently, to grant license to writ petitioner to conduct 'Thanima 60 x 40 Customer _**W.A.1524/2021**_ 8 Friendly Open Market' in Building No,1/448C of Thodupuzha Municipality. In the light of the above factual background, there is no need to issue any declaration as sought for in prayer No.1. We find no error in the impugned judgment warranting interference. Writ appeal is dismissed. Sd/S. Manikumar, Chief Justice Sd/Shaji P. Chaly, Judge sou.