Tojo K.T. v. Secretary, Naduvil Grama Panchayath & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **TUESDAY, THE 26TH DAY OF MAY 2020 / 5TH JYAISHTA, 1942** ## **WP(C).No.35063 OF 2015(G)** ## **PETITIONER:** **TOJO K.T., AGED 39 YEARS, S/O THOMAS, KATTAKKAL HOUSE, KARUVANCHAL P.O,VELLAD AMSOM, NADUVIL DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT-670571.** **BY ADVS. SRI.V.T.MADHAVAN UNNI SRI.V.A.SATHEESH** ## **RESPONDENTS:** **1 SECRETARY, NADUVIL GRAMA PANCHAYATH, NADUVIL P.O, KANNUR DISTRICT-670582 2 JAYAKUMARI. O.V., D/O GOVINDAN, AGED 52 YEARS, ODAN VALAPPIL HOUSE,KANIYANCHAL, VELLAD.P.O., VELLAD AMSOM, TALIPARAMBA TALUK, KANNUR DISTRICT-670571.** **BY ADV. SRI.T.V.JAYAKUMAR NAMBOODIRI BY ADV. SRI.ANEESH JOSEPH BY ADV. SMT.DENNIS VARGHESE BY ADV. SRI.M.RAMESH CHANDER SR. BY ADV. SRI.T.C.SIBI** ## **OTHER PRESENT:** ## **ADV. SRI. BONNY BENNY - R2** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.35063 of 2015(G) 2 ## **JUDGMENT** The petitioner is stated to be in occupation of Shop No.N.P. IX-837 situated at Karuvanchal Town in Naduvil Grama Panchayat in Kannur district, on the strength of Ext.P1 lease deed dated 26.04.2012 executed with the original landlord, Odan Valappil Govindan, the father of the 2[nd] respondent. The monthly rent fixed in Ext.P1 is Rs.3,000/-. Going by the averments in the writ petition, the petitioner was initially doing business in fancy items. In the year 2014, he changed his business to textiles. On 24.01.2014, the original landlord died and the 2[nd] respondent, his daughter, got right over the shop room, on the strength of a Will executed by her father. The petitioner approached the 2[nd] respondent with a request for consent letter, in order to obtain licence from the Grama Panchayat. Since the 2[nd] respondent refused to give consent, the petitioner caused to issue Ext.P2 lawyer notice dated 31.10.2014. According to the petitioner, after the receipt of Ext.P2 notice, the 2[nd] respondent refused to accept rent, though the petitioner was ready and willing to pay rent. On 01.01.2015, the 2[nd] respondent filed R.C.P. No.1 of 2015 W.P.(C)No.35063 of 2015(G) 3 before the Rent Control Court, Taliparamba seeking eviction of the petitioner from the shop room, after issuing Ext.P3 notice. Ext.P4 is a copy of the rent control petition. On 27.10.2015, the petitioner submitted Ext.P5 application before the 1[st] respondent, the Secretary of Naduvil Grama Panchayat, for D&O licence, which was acknowledged vide Ext.P6 receipt. However, the 1[st] respondent failed to consider that application on the ground that the petitioner could not obtain the consent of the 2[nd] respondent landlord. Feeling aggrieved, the petitioner has filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the 1[st] respondent to consider Ext.P5 application, as expeditiously as possible; and an appropriate writ, restraining respondents 1 and 2 from closing the shop room or evicting him from that shop room, till the disposal of Ext.P5 application. 2. On 20.11.2015, when this writ petition came up for admission, this Court admitted the matter on file and issued notice to the respondents by speed post. 3. A counter affidavit has been filed by the 2[nd] respondent opposing the reliefs sought for in this writ petition. W.P.(C)No.35063 of 2015(G) 4 The 2[nd] respondent would point out that, seeking eviction of the petitioner for the shop room in question, on the ground of arrears of rent and bonafide need, she has filed rent control petition before the Rent Control Court, Taliparamba. In the rent control petition, the writ petitioner filed Ext.R2(a) counter. The 2[nd] respondent would contend that, since the petitioner does not have a licence to conduct business in the shop room in question, Ext.P5 application cannot be treated as one for renewal of licence. In Ext.P5 application the column against Sl. No.10 is kept blank. When the petitioner changed the character of business conducted in the shop room, there cannot be any compulsion on the landlord to give consent. The 2[nd] respondent submitted Ext.R2(b) request dated 21.10.2015 before the 1st respondent pointing out that the petitioner had sublet the shop room to one Shyam, who was running mobile phone business in that premises. 4. Heard the learned counsel on both sides. 5. The relief sought for in this writ petition is consideration of Ext.P5 application for D&O licence made by the petitioner, before the 1[st] respondent, for conducting textile ## W.P.(C)No.35063 of 2015(G) 5 business in the shop room owned by the 2[nd] respondent. Ext.P5 application is one filed seeking licence for the year 2015-2016. 6. In **State of U.P. v. Harish Chandra [(1996) 9 SCC 309]** the Apex Court held that, under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. Paragraph 10 of the said decision reads thus; "10. Notwithstanding the aforesaid Statutory Rule and without applying the mind to the aforesaid Rule the High Court relying upon some earlier decisions of the court came to hold that the list does not expire after a period of one year which on the face of its erroneous. Further question that arises in this context is whether the High Court was justified in issuing the mandamus to the ## W.P.(C)No.35063 of 2015(G) 6 appellant to make recruitment of the Writ Petitioners. Under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. This being the position and in view of the Statutory Rules contained in Rule 26 of the Recruitment Rules we really fail to understand how the High Court issue the impugned direction to recruit the respondents who were included in the select list prepared on 4.4.87 and the list no longer survived after one year and the rights, if any, of persons included in the list did not subsist." (underline supplied) 7. In **Bhaskara Rao A. B. v. CBI [(2011) 10 SCC** **259]** the Apex Court reiterated that, generally, no court has competence to issue a direction contrary to law nor can the Court direct an authority to act in contravention of the statutory provisions. The Courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law. W.P.(C)No.35063 of 2015(G) 7 8. In the instant case, Ext.P5 application is one filed seeking licence for the year 2015-2016. At this distance of time, this Court cannot direct the 1[st] respondent to consider Ext.P5 application made by the petitioner seeking licence for the year 2015-2016, as no mandamus can be issued to do something which is contrary to law. 9. The earned counsel for the petitioner would submit that the petitioner shall make a fresh application before the 1[st] respondent for licence to conduct business in the shop room in question, which may be directed to be considered by the 1[st] respondent. The learned counsel for the 2[nd] respondent would contend that, the tenancy with the original landlord was for conducting business in fancy items and Ext.P5 application made by the petitioner was for granting licence to conduct textile business. The said application was for fresh licence, and not for renewal of any licence granted by the Grama Panchayat to conduct business in the shop room in question, which cannot be entertained without the written consent of the landlord, . 10. In **Marimuthu v. Director General of Police** W.P.(C)No.35063 of 2015(G) 8 **[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 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 S.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 ## W.P.(C)No.35063 of 2015(G) 9 can be allowed to carry on a trade or business which requires a licence, only after obtaining such 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." 11. The judgment of this Court in **Marimuthu** was affirmed by the Apex Court in **Sudhakaran v. Corporation of Trivandrum [(2016) 14 SCC 263]** . In **Sudhakaran** , 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 for obtaining license for the first time, the tenant cannot be deprived of running lawful business ## W.P.(C)No.35063 of 2015(G) 10 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. 12. 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) KHC 25]** . 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." 13. The learned counsel for the petitioner would submit that the petitioner shall file fresh application before the 1[st] respondent for licence to conduct textile business in the shop room in question, after complying with the statutory requirements. The learned counsel for the 2[nd] respondent would submit that, consideration of any such application can W.P.(C)No.35063 of 2015(G) 11 only be made with notice to the 2[nd] respondent, and after considering the contentions of the 2[nd] respondent as to maintainability of such an application, without the written consent of the landlord. 14. Having considered the submission made by the learned counsel on both sides, this writ petition is disposed of with the following directions; (i) The petitioner shall submit a fresh application for licence to run textile business in the shop room owned by the 2[nd] respondent, after complying with the statutory requirements, within three weeks from the date of receipt of a certified copy of this judgment; (ii) If any such application is received, within the time limit stipulated as above, after complying with the statutory requirements, the 1[st] respondent shall consider the same and pass appropriate orders thereon, strictly in accordance with law, taking note of the law laid down in the decision referred to hereinbefore, with notice to the petitioner and also to the 2[nd] respondent landlord, after adverting to the W.P.(C)No.35063 of 2015(G) 12 contentions raised by both side, including the question of maintainability of such an application without the written consent of the landlord, as expeditiously as possible, at any rate within a period of two months from the date of receipt of a certified copy of this judgment. Sd/- **ANIL K. NARENDRAN JUDGE** MIN W.P.(C)No.35063 of 2015(G) 13 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE RENT KACHIT EXECUTED BY THE PETITIONER DATED 26.04.2012.** **EXHIBIT P2 TRUE COPY OF THE LAWYER NOTICE SENT BY THE PETITIONER TO RESPONDENT NO.2 DATED 31.10.2014.** **EXHIBIT P3** **TRUE COPY OF THE NOTICE ISSUED TO THE PETITIONER FROM THE RENT CONTROL COURT, TALIPARAMBA IN R.C.P NO. 1/2015.** **EXHIBIT P4 TRUE COPY OF THE PETITION IN R.C.P. NO. 1/2015 ON THE FILE OF RENT CONTROL COURT, TALIPARAMBA.** **EXHIBIT P5 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 27.10.2015.** **EXHIBIT P6 TRUE COPY OF THE RECEIPT ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT DATED 27.10.2015.** ## **RESPONDENTS'S EXHIBITS:** **EXHIBIT R2(A)** **EXHIBIT R2(B)** **TRUE COPY OF THE COUNTER IN RCP 1/2015 DATED 11.11.2015 FILED BEFORE THE COURT OF THE RENT CONTROLLER (MUNISIFF) BY THE WRIT PETITIONER.** **PHOTOSTAT COPY OF THE COMMUNICATION ISSUED BY THIS RESPONDENT TO THE 1ST RESPONDENT DATED 21.10.2015.**