Vijaya Jyothi Traders v. Municipal Corporation of Thrissur and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY ,THE 13TH DAY OF NOVEMBER 2018 / 22ND KARTHIKA, 1940** ## **WP(C).No. 20554 of 2018** ## **PETITIONER/S:** **VIJAYA JYOTHI TRADERS, 11/69, WARD NO.11, POST OFFICE ROAD, THRISSUR, REPRESENTED BY ITS PARTNER C.VIJAYAN @ RAGHAVAN,ITTIAMPURATH HOUSE, POONKUNNAM, THRISSUR-680 002.** **BY ADVS. SRI.V.M.SYAM KUMAR SMT.ANJU MARY SMT.KRIPA ELIZABETH MATHEWS SMT.P.F.ROSY** ## **RESPONDENT/S:** **1 MUNICIPAL CORPORATION OF THRISSUR, M.O. ROAD, THRISSUR, REPRESENTED BY ITS SECRETARY - 680 001. 2 HEALTH SUPERVISOR, MUNICIPAL CORPORATION OF THRISSUR, M.O. ROAD, THRISSUR - 680 001. 3 C.S BABU, CHUNGATH HOUSE, VATTAPARAMBIL LANE, KURIACHIRA, THRISSUR-680 006.** **BY ADVS. R1 & R2 BY SRI. SANTHOSH P.PODUVAL, SC, THRISSUR CORPORATION R3 BY SRI.K.P.DANDAPANI (SR.) SRI.LINDONS C.DAVIS SMT.E.U.DHANYA SRI.RAJITH DAVIS** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.11.2018, ALONG WITH WP(C).31220/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.20554 & 31220 of 2018 2 ## **JUDGMENT** The captioned writ petitions are materially connected in respect of non-issuance of D&O licence by the Thrissur Municipal Corporation. The earlier writ petition is filed by a Partnership Firm represented by its partner, C. Vijayan, who is the petitioner in the other writ petition. Therefore, I heard them together and propose to deliver a common judgment. The facts and circumstances pointed out in the writ petitions are typical in nature, and therefore, for the disposal of the writ petitions, the pleadings and documents filed by the parties in W.P.(C) No.20554 of 2018 are relied upon. 2. Petitioner is a partnership firm engaged in retail sale of plastic goods in Thrissur town, since more than four decades. Petitioner is aggrieved by the rejection of its application for renewal of trading licence preferred before the Municipal Corporation and the direction by the Municipal Corporation to stop their business activities, without even affording them an opportunity of being heard. Petitioner is a tenant in the ground floor of the building owned by the 3[rd] respondent. According to the petitioner, rent is being regularly paid and was collected uptil November, 2017, evident from Ext.P2 series. Case of the petitioner is W.P.(C) No.20554 & 31220 of 2018 3 that, all along petitioner had the trading licence issued by the Municipal Corporation, which was being renewed from time to time. 3. Petitioner preferred an application for renewal of trading licence for the period 2017-18, which was rejected and issued with Ext.P4 stop memo dated 11.12.2017, on the ground that, the NOC produced by the petitioner alleged to be from the landlord is fabricated and the owner of the building has not issued any such NOC. The case of the petitioner therein is that, the stop memo is issued without hearing the petitioner and serious prejudice is caused. It is also pointed out that, apprehending forcible eviction, petitioner has also filed a civil suit seeking injunction restraining the landlord from forcibly evicting the petitioner from the premises in question. It is true, the details of the suit are not recited to in the writ petition. 4. A detailed counter affidavit is filed by the 3[rd] respondent, refuting the allegations and claims and demands raised by the petitioner. According to the 3[rd] respondent, a partnership firm is doing business in the building in question. Even though two partners died earlier, the deed has not been reconstituted till date. The names of the present partners are not mentioned in ## W.P.(C) No.20554 & 31220 of 2018 4 the writ petition. It is also stated that, there is no resolution authorizing the partner C.Vijayan to represent the firm, and the partnership deed is also not produced. 5. It is further stated that, the predecessors-ininterest of the petitioner have taken the shop room on rent for their business. Since the petitioner has not paid the rent and arrears, the respondent has not renewed the rent agreement. Moreover, to the knowledge of the 3[rd] respondent, the partnership firm is not existing and that apart, petitioner failed to perform according to the conditions in the rent agreement. Therefore, petitioner is illegally conducting shop in the respondent's property, without obtaining any licence from the Municipality. 6. That apart, petitioner is not having any trading licence so as to conduct any business in the building in question. However, it is admitted that, petitioner has made an application dated 30.11.2017 for licence. But, it is pertinent to note that, petitioner is not having any valid licence till that date, and therefore, the renewal of licence is not permissible. Therefore, petitioner has to make an application for a fresh licence and in that juncture, respondent has enquired further and found that the petitioner has forged consent by affixing W.P.(C) No.20554 & 31220 of 2018 5 the respondent's signature by fraudulent means on stamp papers and submitted along with the application for licence, and the attempt of the petitioner was to cheat the 3[rd] respondent as well as the Municipal Secretary. 7. Thereupon, a private complaint is instituted before the CJM Court, Thrissur as C.M.P No.3869/2018, and the complaint was forwarded to the Thrissur East Police Station, and accordingly an FIR is registered as Crime No.560/2018 by the Thrissur East Police Station against the partner Vijayan @ Raghavan, evident from Ext.R3(a), and investigation is going on. It is also pointed out that, petitioner is a very influential person in Thrissur town. 8. Since the 3[rd] respondent happened to know about the forgery committed by the petitioner, he requested the Municipal authorities not to issue any licence to the petitioner. Accordingly, the Health Inspector of Thrissur Corporation took statement of the 3[rd] respondent in detail, and thereafter, a notice is issued to the petitioner under Sections 447(1) and 492(4) of the Kerala Municipality Act, 1994. Even though a stop memo is issued, petitioner has not cared to clarify the circumstances pointed out in the stop memo, and therefore, it was only legal and proper that the W.P.(C) No.20554 & 31220 of 2018 6 application submitted by the petitioner to renew the licence was rejected by the Secretary of the Municipality. 9. An additional counter affidavit is also filed by the 3[rd] respondent, and along with the same, certain documents are produced, i.e., Ext.R3(b)extract from the Register of Firms under the Indian Partnership Act, 1932, from where, it is evident that, C.Raghavan is a partner in the Firm. So also, it is pointed out that, petitioner has filed O.S.No.2093/2018 before the Munsiff's Court, Thrissur, seeking injunction against the 3[rd] respondent. Even though initially an injunction was granted against forcible eviction, the same was vacated on 24.09.2018, on which date, petitioner has filed W.P.(C) No.31220 of 2018 before this Court, and secured an interim order, directing the respondents 1 to 3, not to forcibly evict the petitioner from the premises in question for a period of two months. 10. Respondents 1 and 2 have also filed a counter affidavit, justifying their stand adopted in issuing Ext.P4 stop memo. 11. W.P.(C) No.31220 of 2018 is filed by the partner, C.Vijayan @ Raghavan, seeking direction for consideration of Ext.P8 application seeking to renew W.P.(C) No.20554 & 31220 of 2018 7 trading licence for the year 2018-19. Therein also, respondents 1 to 3 i.e., the Corporation and its officials have filed a detailed counter affidavit. The 4[th] respondent, landlord, has also filed a counter affidavit with typical contentions that are taken in the other writ petition. 12. Petitioner has also filed I.A.No.3 of 2018 and has produced Ext.P12 in W.P.(C) No.31220 of 2018, which is an application seeking issuance of licence for the ensuing year 2018-19. It is also submitted that, petitioner would be satisfied, if a direction is issued to consider Ext.P12 afresh, without insisting for a No Objection Certificate from the landlord of the building. 13. I have heard Sri. V.M. Syam Kumar, learned counsel for the petitioners, Sri. Santhosh P. Poduval, learned Standing Counsel for the Thrissur Corporation, and Sri. K.P.Dandapani, learned Senior Counsel along with Advocate Sri. Lindons C.Davis appearing for the landlord. Perused the documents on record and the pleadings put forth by the respective parties. 14. The discussion of facts made above would make it clear that, the issue relates to non-renewal of the trading licence sought for by the petitioner in the writ petitions for the ensuing period 2017-18. When the W.P.(C) No.20554 & 31220 of 2018 8 petitioner submitted the application for renewal, petitioner was confronted with Ext.P4 notice stating that, along with the licence application, petitioner has produced a forged consent letter of the landlord and therefore, the application submitted by the petitioner was rejected and directed the petitioner to stop the business activities. It is true, apprehending forcible eviction, petitioner has filed a suit before the Munsiff's Court, seeking injunction restraining the landlord from forcibly evicting the petitioner. It is an admitted fact that, even though initially an injunction was granted, the same was vacated on 24.09.2018, on the ground that petitioner has not disclosed material facts before the Court. The order passed by the Munsiff's Court, vacating the order is produced by the 4[th] respondent in W.P.(C) No.31220 of 2018. A copy of the suit is also produced by the respondents in both the writ petitions. 15. The paramount contention advanced by learned counsel for the petitioner is that, even though there is no evidence to prove that petitioner was conducting business after securing trading licence from the Secretary of the Corporation, it is a fact that petitioner was conducting the business and the W.P.(C) No.20554 & 31220 of 2018 9 Municipality has received professional tax from the firm in question. It is also an admitted fact that, Ext.P2 series of rent receipts are issued by the 3[rd] respondent, showing the names of the partners and in all the receipts, the name of the petitioners are reflected. It is also evident from the receipts produced that petitioner has paid rent up to November, 2017, wherein also the name of the petitioner is reflected and the rent of Rs.7,000/- is seen paid for a period of 15 days from 01.11.2017 to 15.11.2017. It is also evident from Ext.P3 series of professional tax receipts that professional tax was being received from the Firm viz., Vijay Jyothi Traders uptil the period 18.01.2018, even though the name of the partner thereunder is shown as C.A.Unnikrishnan. **==> picture [412 x 12] intentionally omitted <==** C.A.Unnikrishnan is a partner in the firm in question. Therefore, the situation makes it clear that whether the petitioner has secured trading licence or not, business was being carried on by the firm in the premises in question. The issue with respect to the forgery committed by the petitioner in the NOC is a subject matter under investigation by the Police, and therefore, at this stage of the proceedings, this Court is unable to make any reference to the same. It is a matter to be W.P.(C) No.20554 & 31220 of 2018 10 investigated by the Police and ultimately to be considered by a competent court of law. Anyhow, the possession of the petitioner, i.e., the firm and its partners are not under dispute. Even though the civil court has vacated the order of injunction granted in favour of the petitioner, it cannot be said that eviction can be undertaken by the landlord without resorting to procedure known to law. 17. It is true that the landlord has a case that there is change in the constitution of the partnership firm, however, if the landlord has a case that the partners originally existed in the firm or their successors in interest have completely changed, and there is sub-letting, the landlord is at liberty to approach the competent court of law for evicting the tenants. But, at the same time, it is evident that, there is no proof produced by the petitioner before this Court to show that trading licence was secured from the Secretary of the Corporation continuously. Anyhow, the landlord has received rent from the petitioner up to November, 2017 and the firm has paid professional tax up to January, 2018. Therefore, there is clinching evidence before this Court to show that the partnership firm and the partners are in possession of the building in W.P.(C) No.20554 & 31220 of 2018 11 question. Moreover, the rent receipts produced as Ext.P2 series and the professional tax receipts produced as Ext.P3 series are not disputed by the landlord and the Corporation respectively. Therefore, if the Corporation has a case that petitioner continued with the business without securing trading licence from the Secretary of the Corporation, the Corporation is at liberty to raise a demand for the trading licence fee along with any fine in accordance with law, and especially when the tenant is carrying on the business lawfully. Learned Senior Counsel for the landlord also contended that there is no valid agreement enabling the tenant to continue in the premises. There, it is to be noted, a tenant holding over is protected under the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965, and eviction is possible only in accordance with the provisions of the said Act. 18. Learned counsel for the petitioners has invited my attention to a judgment of this Court in ' _**Shajahan v. Alice George**_ ' [2015 (1) KLT 995], wherein it was held that, once a person is otherwise eligible for renewal of licence and the licence stood renewed, the incidental aspect of producing a forged letter, _per se_ , will not render the renewed licence nugatory, so long as the so- W.P.(C) No.20554 & 31220 of 2018 12 called forged consent letter is not at all material for decision making. Therein, the learned Single Judge of this Court has considered the question of renewal of licence as provided under Sec.492 of the Kerala Municipality Act, 1994. It is an admitted fact that, Sec.492 of the Act, 1994 deals with the circumstances under which a trading licence can be issued to an applicant and the manner in which it is to be renewed during the course of continuance of the business. 19. So also, learned counsel has invited my attention to the judgment of the apex court in ' _**Sudhakaran v. Corporation of Trivandrum and Another**_ ' [(2016) 14 SCC 263 : 2016 (3) KHC 803 : 2016 (3) KLT 247], wherein the question with respect to non-issuance of a consent by the landlord for the first time was taken into account, and held that, even in the case of application for obtaining licence for the first time, tenant cannot be deprived of running lawful business merely because the landlord withheld the consent, and further that, valid tenancy itself has implied authority of the landlord for legitimate use of the premises by the tenant. 20. In my considered view, the factual circumstances discussed above make it very explicit and clear that, the W.P.(C) No.20554 & 31220 of 2018 13 landlord was receiving rent from the firm and its partners, and the same is very well reflected in Ext.P2 series of receipts issued by the landlord. It is also clear from Ext.P3 series of professional tax receipts that the Municipality was accepting professional tax from the firm in question continuously up to January, 2018. Taking into account all these aspects, I am of the considered opinion that, there is a valid tenancy arrangement by and between the petitioner and the landlord and the only deficiency that is remaining is, petitioner is unable to show that petitioner was successively renewing the D&O licence and was paying the licence fee to the Municipality. But, that by itself cannot non-suit a person who is proved to be in possession of the premises in question. 21. True, learned Senior Counsel appearing for the landlord has a contention that, the petitioner, who has not approached this Court with clean hands, is not entitled to secure any reliefs from this Court, exercising the discretionary power conferred under Article 226 of the Constitution of India. However, in the writ petitions, the pendency of the civil proceeding is disclosed by the petitioner, even though in the earlier writ petition, petitioner has not provided the W.P.(C) No.20554 & 31220 of 2018 14 details of the suit. Therefore, it cannot be absolutely said that petitioner has suppressed material facts from the purview of this Court. So also, if the petitioner has committed any forgery, the investigation with respect to the same is in progress and the competent court of law is entitled to take a decision on the same, if a final report is submitted disclosing any offence, and the pendency of an investigation, cannot be treated as any disqualification for consideration of a trading licence application by the Secretary, since the said authority is not vested with any powers to reject an application on that ground. Moreover, Secretary of the Municipality is incompetent to adjudicate any such issue, and therefore, the reasons assigned in Ext.P4 stop memo has a foundational flaw. Till such time petitioner is found guilty, it can only be presumed that petitioner is innocent in the matter in accordance with the principles followed in criminal justice system. 22. Taking into account all these aspects and since the learned counsel for the petitioner submitted that, petitioner would be satisfied, if a direction is issued to consider Ext.P12 application submitted by the petitioner for trading licence for the period 2018-19, without insisting for NOC from the landlord, it is only W.P.(C) No.20554 & 31220 of 2018 15 appropriate that Ext.P12 application is directed to be considered without insisting for NOC from the landlord. So also, in the fact scenario, Ext.P4 stop memo dated 11.12.2017 under challenge in W.P.(C) No.20554 of 2018 cannot also be sustained under law, being arbitrary and illegal, and accordingly it is quashed. 23. Therefore, there will be a direction to the Secretary of the Corporation to consider Ext.P12 application dated 24.10.2018, submitted by the petitioner, produced along with I.A.No.3 of 2018 in W.P. (C) No.31220 of 2018, at the earliest, and at any rate, within a month from the date of receipt of a copy of this judgment, without insisting for NOC from the landlord, after providing an opportunity of hearing to the petitioner as well as the landlord, in accordance with law, and the findings and observations contained above. I make it clear that, if the Municipality is of the opinion that petitioner has not paid the licence fee for any period, the Municipality will be at liberty to raise a demand against the same in accordance with law and in accordance with the limitation prescribed under the Kerala Municipality Act, 1994. 24. In W.P.(C) No.31220 of 2018, an interim order was granted by this Court on 25.09.2018, against forcible W.P.(C) No.20554 & 31220 of 2018 16 eviction, which is in force even today. Therefore, the said order will continue to be in force till such time a decision is taken, as directed above. I also make it clear that, if any proceedings are instituted by the landlord to evict the tenant from the premises in question, the findings and directions contained above shall not hinder consideration of such proceeding in accordance with law, on the merits of the matter. The writ petitions are allowed to the above extent. All the pending interlocutory applications would stand closed. ## **Sd/-** ## **SHAJI P.CHALY** **JUDGE** W.P.(C) No.20554 & 31220 of 2018 17 ## **APPENDIX OF WP(C) 20554/2018** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE CERTIFICATE ISSUED BY THE REGISTRAR OF FIRMS,THIRUVANANTHAPURAM DTD.15.07.1998. EXHIBIT P2 TRUE COPY OF RENT RECEIPTS DTD 6.6.2008 & 7.4.2008. EXHIBIT P2(A) TRUE COPY OF RENT RECEIPTS DTD.6.2.2009 & 25.3.2009. EXHIBIT P2(B) TRUE COPY OF THE RENT RECEIPTS DTD. 31.05.2010, 03.06.2010 & 11.06.2010. EXHIBIT P2(C) TRUE COPY OF RENT RECEIPTS DTD.4.4.2011, 17.05.2011 & 06.06.2011. EXHIBIT P2(D) TRUE COPY OF RENT RECEIPTS DTD.07.04.2012, 07.05.2012 & 05.06.2012. EXHIBIT P2(E) TRUE COPY OF RENT RECEIPTS DTD.07.01.2013, 16.02.2013 & 07.03.2013. EXHIBIT P2(F) TRUE COPY OF RENT RECEIPTS DTD.08.06.2015 & 10.07.2015. EXHIBIT P2(G) TRUE COPY OF RENT RECEIPTS DTD.05.11.2016, 09.12.2016 & 07.01.2017. EXHIBIT P2(H) TRUE COPY OF THE RENT RECEIPTS DATED 06.06.2017 ,19.06.2017 & 06.07.2017. EXHIBIT P2(I) TRUE COPY OF THE RENT RECEIPT DATED 21.11.2017. EXHIBIT P3 TRUE COPY OF THE BILL DTD.09.07.2012 & RECEIPT. EXHIBIT P3(A) TRUE COPY OF THE BILL DATED 24.09.2011 & RECEIPT. EXHIBIT P3(B) TRUE COPY OF THE BILL DATED 06.01.2012 & RECEIPT. EXHIBIT P3(C) TRUE COPY OF THE BILL DATED 12.08.2013 & RECEIPT. EXHIBIT P3(D) TRUE COPY OF THE BILL DATED NIL & RECEIPT. EXHIBIT P3(E) TRUE COPY OF THE BILL DATED 01.01.2014 &** W.P.(C) No.20554 & 31220 of 2018 18 ||**RECEIPT.**| |---|---| |**EXHIBIT P3(F)**|**TRUE COPY OF THE BILL DATED 18.01.2018.**| |**EXHIBIT P3(G)**|**TRUE COPY OF THE BILL DATED 18.01.2018.**| |**EXHIBIT P4**|**TRUE COPY OF THE STOP MEMO DTD.11.12.2017**| ||**BEARING NO.PH I-54115/17 ISSUED BY THE 2ND**| ||**RESPONDENT.**| |**EXHIBIT P5**|**TRUE COPY OF THE CHEQUE AND COVERING LETTER**| ||**DTD. 05.06.2018 AND POSTAL RECEIPT ISSUED BY**| ||**THE PETITIONER TO THE 3RD RESPONDENT.**| |**EXHIBIT P6**|**TRUE COPY OF THE NOTICE DATED 01.03.2018**| ||**BEARING NUMBER PH I/54115/17.**| |**EXHIBIT P7**|**TRUE COPY OF THE NOTICE DATED 25.07.2018**| ||**ISSUED BY THE 2ND RESPONDENT.**| |**RESPONDENT'S/S**|**EXHIBITS:**| |**EXHIBIT -R3(A)**|**TRUE COPY OF COPY OF THE FIR NO.560/2018 OF**| ||**THRISSUR EAST POLICE STATION.**| |**EXHIBIT -R3(B)**|**TRUE COPY OF THE DOCUMENT MAINTAINED BY THE**| ||**REGISTER OF FIRMS OBTAINED ON 28/07/2018.**| |**EXHIBIT -R3(C)**|**TRUE COPY OF THE APPLICATION OF THIS**| ||**RESPONDENT AS PER RTI ACT DATED 02/07/2018**| ||**ALONG WITH THE REPLY DATED 23/07/2018 OF THE**| ||**THRISSUR CORPORATION.**| |**EXHIBIT -R3(D)**|**TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY**| ||**THE 1ST RESPONDENT IN IA 9495/2018 IN OS**| ||**2093/2018 BEFORE THE 2ND ADDITIONAL MUNSIFF**| ||**COURT, THRISSUR.**| |**EXHIBIT -R3(E)**|**TRUE COPY OF THE REMAND REPORT IN CRIME**| ||**NO.560/2018 OF THRISSUR EAST POLICE STATION.**| |**EXHIBIT -R3(F)**|**TRUE COPY OF THE STATEMENT OF THE PETITIONER**| ||**BEFORE THE 1ST RESPONDENT.**| |**EXHIBIT -R3(G)**|**TRUE COPY OF THE OS NO.2093/2018 FILED**| ||**BEFORE MUNSIFF COURT, THRISSUR.**| //TRUE COPY// P.S. TO JUDGE St/- W.P.(C) No.20554 & 31220 of 2018 19