Writ Appeal Nos. 1979 & 2021 of 2016

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE THE CHIEF JUSTICE MR.MOHAN M.SHANTANAGOUDAR & THE HONOURABLE MR. JUSTICE SATHISH NINAN** **WEDNESDAY, THE 9TH DAY OF NOVEMBER 2016/18TH KARTHIKA, 1938** **WA.NO. 1979 OF 2016 () IN WP(C).11989/2009 -------------------------------------------AGAINST THE JUDGMENT IN WP(C) 11989/2009 OF HIGH COURT OF KERALA DATED 15-01-2015** **APPELLANT(S)/LEAVE PETITIONER:-:** **-------------------------------** **ABDURAHIMAN AGED 43, S/O.MAMMI, KAINIKKARA HOUSE, NORTH ANNARA, TIRUR - 676 101.** **BY ADVS.SRI.R.T.PRADEEP SMT.M.BINDUDAS** **RESPONDENT(S)/PETITIONER & RESPONDENTS 21 TO 3 & ADDITIONAL RESPONDENT NO.4:-:** **-------------------------------------------------** ## **1. RAZIA** **AGED 43 YEARS, W/O.ABDUL SHUKKUR, KALLINGAL HOUSE, MOOCHIKKAL, TIRUR, MALAPPURAM DISTRICT - 676 101.** **2. THE TIRUR MUNICIPALITY,** **TIRUR - 676 101, REPRESENTED BY ITS SECRETARY.** **3. THE SECRETARY,** - **TIRUR MUNICIPALITY, TIRUR, MALAPPURAM DISTRICT - 676 101.** **4. THE STATE OF KERALA,** **REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM - 695 001.** **5. KAINIKKARA MUHAMMED ABDURAHIMAN, S/O.SAIDU MOOPAN, CHEMBRA ROAD, PAYYANANGADI, TIRUR P.O., MALAPPURAM DISTRICT, PIN - 676 101.** **R1 BY ADV. SRI.K.K.MOHAMED RAVUF R BY SRI.M.P.SREEKRISHNAN** **R BY SRI.E.C.BINEESH, SC, TIRUR MUNICIPALITY BY SENIOR GOVERNMENT PLEADER SHRI V. TEKCHAND** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24.10.2016 ALONG WITH W.A. NO.2021 OF 2016, THE COURT ON 09.11.2016 DELIVERED THE FOLLOWING:** # **MOHAN M.SHANTANAGOUDAR, C.J. & SATHISH NINAN, J.** **=================================== W.A. Nos.1979 & 2021 of 2016 =================================== Dated this the 09[th] day of November, 2016** **J U D G M E N T** ## **SATHISH NINAN, J.** The challenge in both the Writ Appeals is against the judgment dated 15.01.2015 in W.P(C) No.11989 of 2009. The subject matter in issue relates to the issuance of a municipal licence for the conduct of business in respect of a building which belong to a mentally ill person, viz., Aysumma. 2. Writ Petition No.11989 of 2009 was filed by one Razia, W/o.Abdul Shukkur who is the appellant in W.A 2021 of 2016, for a direction to the Tirur Municipality to grant licence to conduct business in Room No.314 of Ward **W.A. Nos.1979 & 2021 of 2016** -: 2 :- No.VI of Tirur Municipality, and further challenging Exts.P5, P6 and P8 orders of the Municipality and the Tribunal for Local Self Government Institutions respectively, whereby her application for issuance of licence (Exhibit P4) was rejected. 3. It is the case of the Razia/writ petitioner that Room No.314 of Ward No.VI of Tirur Municipality was taken on lease by her husband Abdul Shukkur from the additional 4[th] respondent in the writ petition, viz., Kainikkara Muhammed Abdurahiman as per Ext.P1 agreement dated 01.11.2005. Exhibit P1 was for a period of 11 months. While so, on 16.10.2007 Ext.P2 partnership was entered into between Razia, her husband Abdul Shukkur and one Mohamed Sabu regarding the conduct of the business. The writ petitioner/Razia, sought for renewal of the licence. However, the Municipality rejected the said application stating that the application for licence was not submitted in her name but was submitted in the name of her husband Abdul Shukkur. Thereupon the writ petitioner approached this Court in W.P(C) No.23952 ## **W.A. Nos.1979 & 2021 of 2016** -: 3 :- of 2007 which was disposed of as per Ext.P3 judgment dated 25.09.2007 with a direction to the writ petitioner/Razia, to submit a fresh application for issuance of licence in her name. The Municipality was directed to consider the said application if it is received and found to be in order. It is thereupon on 17.10.2007 that Ext.P4 application for issuance of licence was submitted by the writ petitioner/Razia in her name. As per Ext.P5 order dated 09.01.2008 the Municipality rejected the said application, referring to Section 492(3) of the Kerala Municipality Act, 1994 (for short, “the Act”), and stating that Razia is applying for licence for the first time and that she is not the lessee under Ext.P1 lease agreement but is in her husband Abdul Shukkur's name. The Municipality rejected the application on the ground that written consent of the owner of the premises has not been produced by the applicant. 4. It was further observed that merely because **W.A. Nos.1979 & 2021 of 2016** -: 4 :- the applicant Razia is the wife of the lessee under Ext.P1, viz., Abdul Shukkur, it cannot be said that Section 492(3) of the Act is not applicable. The appeal preferred by the writ petitioner/Razia, before the Municipal Council was also rejected as per Ext.P6 order dated 19.03.2008 essentially on the ground that consent letter from the landlord has not been produced. Challenging Ext.P6 order, the writ petitioner/Razia approached the Tribunal for Local Self Government Institutions by filing Revision Petition No.67 of 2008. The Tribunal as per Ext.P8 order dated 24.09.2008, dismissed R.P. No.67 of 2008 on the same line of reasoning as was given by the Municipality for rejection of the application. It is challenging the said rejection that the writ petitioner approached this Court by filing Writ Petition No.11989 of 2009. The Writ petitioner seeks for quashing of Exts.P5, P6 and P8; for a declaration that the landlord has given consent as is required under Section 492(3) of the Act; and further for a direction to the Municipality to issue licence to **W.A. Nos.1979 & 2021 of 2016** -: 5 :- the writ petitioner, on Ext.P4 application, to conduct business. 5. The Learned single Judge as per the impugned judgment found that there is no material to conclude that the writ petitioner/Razia is a tenant of the premises in question and that under such circumstances a direction cannot be issued to the Municipality for issuance of the licence in her name without production of the written consent from the landlord, as required under Section 492(3) of the Act. The Learned single Judge, taking note of the fact that the building in question belongs to Smt.Aysumma, the sister of the 4[th] respondent, who is a mentally ill person, and taking note of the fact that proceedings are pending before the District Court, Manjeri as O.P(MH) No.165 of 1997 in respect of Aysumma the mentally ill person, and that the 4[th] respondent and one Abdurahiman, son of one Mammi were appointed in the said O.P(MH) as joint Receivers, and that a rent control petition was filed before the Rent Control Court by the Receivers as R.C.P.No.10 of 2012 ## **W.A. Nos.1979 & 2021 of 2016** -: 6 :- seeking eviction of the tenants in the building in question on the ground of arrears of rent (against the husband of the writ petitioner and his siblings as respondents/tenants), and further taking note of the allegation raised by the 4[th] respondent that the building is presently occupied by an unauthorised sub-tenant; directed the District Court, Manjeri to take appropriate decision on the disputed issue of tenancy of the writ petitioner/Razia. It was further directed that if the court is satisfied that the room in question is not occupied by any person under proper authority, to get the room vacated and taken possession of, in order to protect the interest of Aysumma the mentally ill person, in respect of whom O.P(MH) No.165 of 1997 was filed. It was also directed that in the meantime, the Municipality shall not take any steps for stopping the business in the room in question. 6. Challenging the judgment of the learned single Judge, the writ petitioner/Razia filed W.A. No.2021 of **W.A. Nos.1979 & 2021 of 2016** -: 7 :- 2016 contending that in view of the decision of this Court in **Marimuthu v. Director General of Police** (1993 [3] KLT 662), the Municipality cannot insist for production of written consent from the landlord by the writ petitioner for the purpose of issuance of licence. According to the appellant/writ petitioner, she is a tenant by holding over, and hence there is no necessity for consent from the landlord for renewal of the licence. According to her Section 492(3) of the Act applies only to a case of issuance of fresh licence and does not apply for renewal thereof. The further ground of challenge urged by the writ petitioner is that the direction given by the learned single Judge to the District Court, Manjeri to consider the issue of tenancy is without jurisdiction since owner of the premises, viz., Aysumma, being a mentally retarded person, proceedings under the Mental Health Act, 1987 is without jurisdiction. According to the learned senior counsel, the statute applicable in respect of such a person is the National Trust for Welfare of Persons with Autism, ## **W.A. Nos.1979 & 2021 of 2016** -: 8 :- Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999. Therefore, according to the writ petitioner/appellant, the proceedings before the District Court, Manjeri is without jurisdiction, and hence there cannot be a direction to the District Court to consider the issue of tenancy of the writ petitioner. It is also contended that the writ petitioner being a partner of the business firm of her husband, is entitled to get the licence renewed on the strength of Ext.P1 lease agreement. 7. Writ Appeal No.1979 of 2016 is filed by one of the Joint Receivers appointed by the District Court, Manjeri in O.P(MH) No.165 of 1997 on obtaining leave of this Court. It is contended that the District Court, Manjeri does not have jurisdiction to consider the issue of tenancy in a proceedings under the Mental Health Act. The further challenge in the said appeal is against the observations in the judgment regarding the conduct of the Receivers in O.P(MH) No.165 of 1997. It is also **W.A. Nos.1979 & 2021 of 2016** -: 9 :- contended that Razia who is the 1[st] respondent in the Writ Appeal and the petitioner in W.P(C) No.11989 of 2009, is not a contractual tenant but is a total stranger and hence is not entitled to get the licence in her favour. 8. In our considered opinion, the issue that arises for determination in the writ petition has been mixed up and complicated by the parties. The writ petitioner, viz., Razia, wife of Kallingal Abdul Shukkur applied for issuance of licence from the Municipality in her name for conduct of business in Room No.314 of Ward VI of the Tirur Municipality, as per Ext.P4. She relies on Ext.P1 lease agreement to substantiate her possession as a lessee and to claim licence from the Municipality for the conduct of business therein. Admittedly, Ext.P1 agreement is not in favour of the writ petitioner/Razia, but it is in favour of Kallingal Abdul Shukkur, husband of the writ petitioner. As per Ext.P4 application, licence is sought from the Municipality by the writ petitioner for doing business in her name. As per ## **W.A. Nos.1979 & 2021 of 2016** ## -: 10 :- Section 492(3) of the Act, when licence is sought for by a person for the conduct of business from the Municipality for the first time, consent of the landlord also needs to be produced. Prior to the submission of Ext.P4 application, there was no licence issued by the Municipality in favour of the writ petitioner. Therefore, Ext.P4 is the application made by the writ petitioner seeking issuance of licence in her name for the first time. The writ petitioner relies on Ext.P1 agreement as the document evidencing consent of the landlord to her for the conduct of business. However, as noticed above, Ext.P1 is not in favour of the writ petitioner, but it is in favour of her husband. Admittedly, the writ petitioner's husband is alive. Therefore, if the writ petitioner seeks for issuance of licence in her name, it is an application being submitted for the first time and hence she needs to produce the consent of the landlord, as mandated under Section 492(3) of the Act. The decision relied on by the learned counsel for the writ petitioner in **Marimuthu v.** **W.A. Nos.1979 & 2021 of 2016** -: 11 :- **Director General of Police** (supra) was a case where the issue dealt with was, whether in the case of a tenant by holding over, a written consent from the landlord is necessary for the renewal of licence. There it was held that in such a case the tenant need not produce a fresh consent from the landlord. The said decision does not apply to the facts of the present case inasmuch as the writ petitioner is not the lessee of the premises in terms of Ext.P1 lease agreement or otherwise, nor did the writ petitioner have licence in her name at any point of time. Therefore Ext.P4 application for licence submitted by the writ petitioner/Razia can only be an application for licence being submitted to the Municipality for the first time, and hence squarely falls within Section 492(3) of the Act. Therefore, nonproduction of the consent of the landlord should entail rejection of her application seeking issuance of licence. The rejection of Exhibit P4 application for licence submitted by the writ petitioner, by the authorities concerned, as per Exhibits P5, P6 and P8, **W.A. Nos.1979 & 2021 of 2016** -: 12 :- and the judgment of the learned single Judge, is liable to be confirmed and we do so. 9. During the course of arguments, though there were submissions to the effect that Ext.P1 lease agreement is not valid since this Court had in O.P. No. 12957 of 1998 set aside the partnership dated 21.07.1987 entered into between Kainikara Muhammed Abdul Rahiman, the additional 4[th] respondent in W.P(C) No.11989 of 2009, the husband of the writ petitioner viz., Kallingal Abdul Shukkur and others, based on which Ext.P1 lease agreement has been executed; the jurisdiction of the District Court, Manjeri in the proceedings under the Mental Health Act, 1987 contending that Smt.Aysumma is a mentally retarded person and therefore does not fall within the scope of the Mental Health Act, 1987, etc., the same are not considered in the present appeals as we feel that those contentions are outside the scope of the present lis. 10. In view of the findings and the conclusions **W.A. Nos.1979 & 2021 of 2016** -: 13 :- arrived at by us as above, the direction given by the learned single Judge to the District Court, Manjeri to take appropriate decision to regularise the tenancy and to direct the joint Receivers to grant sanction for obtaining licence is set aside. However, in the interests of justice, we direct the learned District Judge, Manjeri to supervise and give appropriate directions to the Receivers to take steps to see that no business is conducted in the disputed premises by any person without valid and proper licence from the statutory authorities. We further direct that in the event of the room lying vacant, necessary steps shall be taken by the learned District Judge, Manjeri, through the Receivers in O.P (MH) 165 of 1997, to see that it is leased out in a proper manner fetching the best possible rent available in the locality for such a premises. Such a direction is being issued in the interest of the landlord who is undisputedly a mentally ill person. With the above observations and directions, these **W.A. Nos.1979 & 2021 of 2016** -: 14 :- Writ Appeals are disposed of confirming the judgment of the single Judge regarding rejection of Ext.P4 application and modifying the judgment of the learned single Judge regarding the further directions, to the extent as indicated above. Sd/- **MOHAN M.SHANTANAGOUDAR,** **CHIEF JUSTICE.** Sd/- **SATHISH NINAN, JUDGE.** Vsv /true copy/ P.S. To Judge