W.P.(C)No.22547 of 2021
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 10TH DAY OF MAY, 2022 / 20TH VAISHAKA, 1944
WP(C) NO. 22547 OF 2021
PETITIONER:
SANIL KUMAR.P
AGED 37 YEARS
S/O. NARAYANANAN, BUSINESS,
RESIDING AT NEELIYATH HOUSE, IRITTYKUNNU,
IRITTY P.O., KANNUR DISTRICT,
PIN-670 703
BY ADVS.
SRI R.SURENDRAN
SMT.S.MAYUKHA
RESPONDENT/S:
1 IRITTY MUNICIPALITY
IRITTY ,PUNNAD P.O., KANNUR DISTRICT, REPRESENTED BY
THE SECRETARY, IRITTY MUNICIPALITY, IRITTY,
PUNNAD P.O., KANNUR DISTRICT,
PIN-670 703
2 THE SECRETARY,
IRITTY MUNICIPALITY, IRITTY, PUNNAD P.O.,
KANNUR DISTRICT,PIN-670 703
3 P.PRADEEP KUMAR ALIAS PRADEEPAN PARAYI,
AGED 42 YEARS
S/O.RAGHAVAN, PRADEEP SADAN, N.P.ROAD,
IRITTY P.O., KANNUR DISTRICT,
PIN-670703
BY ADVS.
R1 & R2 BY SRI ARUN CHANDRAN
LUKE J CHIRAYIL
R3 BY SHRI. P.K.RAVISANKAR, SC, IRITTY MUNICIPALITY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 14.02.2022, THE COURT ON 10.5.2022 DELIVERED THE
FOLLOWING:
W.P.(C)No.22547 of 2021
2
T.R. RAVI, J.
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W.P.(C)No.22547 of 2021
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Dated this the 10th day of May, 2022
JUDGMENT
The petitioner claims to be a tenant in possession of a building bearing Door No.9/1510 of the 1 st respondent Municipality, belonging to the 3rd respondent. According to the petitioner, he has been in possession of the building from 5.11.2012 on a daily rent of Rs.250/-. He claims that he is running an ice cream parlour and snack & tea shop in the building for which purpose, he says, he has purchased and installed a freezer unit, refrigerator, mixer, grinder, a gas stove, furniture, and vessels. The claim of the petitioner is that the business is being conducted under the name and style "Chocolate Cool & Hot". His allegation in the writ petition is that he is sought to be evicted forcefully from the building by the 3 rd respondent in connivance with respondents 1 and 2 and for that purpose, an application for renewal of licence (Ext.P5), submitted by the petitioner has been rejected on the ground that the petitioner has not produced the consent letter from the 3 rd respondent. The petitioner relies on the judgment of the Hon'ble Supreme Court in Sudhakaran v. Corporation of Trivandrum reported in [2016 (3) KLT 247], to contend that no such consent W.P.(C)No.22547 of 2021 3 is required as long as a valid tenancy is shown to be existing. The petitioner admits that the licence for conduct of the business had been issued by the 1st respondent in the name of the 3rd respondent even prior to the tenancy arrangement between the petitioner and the 3rd respondent. It is stated that the licence continued to be renewed in the name of the 3 rd respondent even after the tenancy arrangement. He further states that when forceful eviction was attempted, he had filed O.S.No.242 of 2021 before the Munsiff's Court, Kuthuparamba praying for a decree of permanent injunction and the Civil Court has passed Ext.P1 order of interim injunction on 7.7.2021 which is still in force.
2. The 3rd respondent has filed a counter-affidavit denying the existence of any tenancy agreement. The existence of the suit, O.S.No.242 of 2021 is admitted. Ext.P2 commission report is also admitted. In Ext.P2, the Advocate Commissioner has found possession with the petitioner. It is stated that the 3 rd respondent was served notice in the business premises of the 3 rd respondent, which is situated opposite the building which is claimed to be in possession of the petitioner and being conducted under the name "Prabhath Bakery". The 3rd respondent contends that the petitioner has never been conducting any business on his own, based on any licence issued by the 1st respondent Municipality and that since Ext.P5 can only be treated as a fresh application, the requirement of W.P.(C)No.22547 of 2021 4 consent of the landlord cannot be waived by the 1 st respondent. In answer to the contention raised on the basis of the judgment in Sudhakaran (supra), the 3rd respondent submits that the facts of the case do not even disclose the existence of a valid tenancy between the petitioner and the 3rd respondent and hence the benefit of the observation in the judgment that a letter of consent cannot be insisted upon if there is a valid tenancy cannot be availed of by the petitioner.
3. Respondents 1 and 2 have filed a counter-affidavit producing the application submitted by the petitioner on 12.10.2021 and the communication issued on 21.10.2021 directing the petitioner to submit the consent letter from the building owner and other supporting documents.
4. Heard Sri R.Surendran, learned counsel for the petitioner, Sri Arun Chandran, learned counsel for respondents 1 and 2 and Sri P.K.Ravi Sankar, learned counsel for the 3rd respondent.
5. Admittedly, the petitioner has never been issued with any licence by respondents 1 and 2. As such, the application submitted by the petitioner for a licence cannot be treated as an application for renewal of an existing licence and can only be treated as a fresh application for a licence. In Sudhakaran (supra), the Hon'ble Supreme Court held that as per Section 492(3) of the Kerala Municipalities Act, 1994, any person, not being the owner of a W.P.(C)No.22547 of 2021 5 building, applying for a licence or permission for the first time is required to produce the written consent of the owner of the premises. It is further provided that the period of licence shall not exceed the period for which such consent has been granted.
6. Sudhakaran (supra) was a case in which a licence had been issued and the same had expired requiring a renewal thereof. The period of the lease had also expired. The contention was that the petitioner continued as a statutory tenant or a tenant holding over and could have been evicted only in accordance with the provisions contained in the Kerala Buildings (Lease and Rent Control) Act, 1965. The said contention was accepted by the Tribunal for Local Self Government Institutions as well as the Single Judge of the High Court. The Court had also noticed the pendency of a rent control petition before the Rent Controller. However, the Division Bench of the High Court took the view that once the period of the existing licence is over, the tenant must obtain fresh consent from the landlord. The Division Bench had found that since the application for renewal was made much after the validity of the earlier licence had ended, it cannot be treated as an application for renewal and can only be treated as a fresh application. It was in the above circumstances that the Division Bench held that consent was required. The Hon'ble Supreme Court after considering the facts held that the requirement of consent is only for obtaining a W.P.(C)No.22547 of 2021 6 licence for the first time and that renewal or subsequent application for obtaining a licence on expiry of the period of an existing licence, during the currency of the tenancy will not require such consent. The Apex Court further held that even in the case of an application for obtaining a licence for the first time, the tenant cannot be deprived of running a lawful business merely because the landlord withheld the consent and that valid tenancy itself has implied authority of the landlord for the legitimate use of the premises by the tenant. The only question that needs to be answered is whether the petitioner can claim the benefit of the observation that consent would not be required if there is a valid tenancy which by itself will imply that the landlord had permitted legitimate use of the premises by the tenant.
7. The contention that the petitioner is a tenant is disputed. Even according to the petitioner, the tenancy arrangement is stated to be one of daily rental. Except for the finding regarding possession for the purpose of grant of a temporary injunction by the Civil Court, there is no material on which this Court can at this stage find that there is a valid tenancy arrangement between the petitioner and the 3rd respondent. The issue whether there is a tenancy arrangement itself is pending consideration before the Civil Court and it is for the civil court to pronounce on the nature of possession of the petitioner. The petitioner has, in the writ petition, W.P.(C)No.22547 of 2021 7 prayed to quash Ext.P4 proceedings of the 2 nd respondent, to direct the 2nd respondent to put the petitioner back in possession after removing the lock and seal by the 2nd respondent, and for further direction to the 2nd respondent to consider Ext.P5 application without insisting on the production of the consent as stipulated in Section 492(3) of the Kerala Municipalities Act, 1994. Since the building was closed and sealed as the business was being continued even without a licence, this Court will not be justified in directing respondents 1 and 2 to put the petitioner back in possession and permitting him to continue the business. So also, in view of the mandate of Section 492(3) and the observation made by the Hon'ble Supreme Court in Sudhakaran (supra), this Court will be justified in directing the 2nd respondent not to insist on production of consent, only if this Court finds that there is valid tenancy between the petitioner and the 3 rd respondent. Ext.P4 only directs that the building has been sealed for functioning without licence and that if there is any trespass, the trespasser will be liable to be prosecuted. Ext.P4 cannot be faulted since admittedly the petitioner does not possess a licence. By Ext.R1(b), the 2nd respondent has directed the petitioner to submit the consent from the landlord. It does not appear that there has been a rejection of the application. This Court is hence of the opinion that the matter requires a re-look by respondents 1 and 2 in the light of the W.P.(C)No.22547 of 2021 8 observations made by the Hon'ble Supreme Court in Sudhakaran (supra), and the finding of the trial court regarding the possession of the petitioner in the order granting the temporary injunction. The writ petition is hence disposed of directing respondents 1 and 2 to consider Ext.P5 application submitted by the petitioner, treating the same as a fresh application for licence and keeping in mind the observations made by the Hon'ble Supreme Court in Sudhakaran (supra), that even in case of fresh applications, consent need not be insisted upon, if there is a valid tenancy. The petitioner may approach the Civil Court for obtaining necessary orders to show whether there is a valid tenancy agreement between the petitioner and the 3rd respondent and produce the same before the 2 nd respondent. If respondents 1 and 2 decide to grant the licence, the petitioner shall be put back in possession of the building subject to any contrary orders passed by the Civil Court in the matter pending before it.
Sd/-
T.R. RAVI JUDGE dsn W.P.(C)No.22547 of 2021 9 APPENDIX OF WP(C) 22547/2021 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER DATED 7.7.2021 IN IA NO.2 OF 2021 IN OS NO.242 OF 2021 OF MUNSIFFS COURT, KUTHUPARAMBA Exhibit P2 TRUE COPY OF THE REPORT DATED 05.10.2021 SUBMITTED BY THE ADVOCATE -COMMISSIONER IN OS NO.242 OF 2021 OF MUNSIFFS COURT, KUTHUPARAMBA Exhibit P3 TRUE COPY OF THE REPLY DATED 13.7.2021 ISSUED BY THE SECOND RESPONDENT AND RECEIVED BY THE PETITIONER Exhibit P4 TRUE COPY OF THE PROCEEDINGS OF THE SECOND RESPONDENT IN NO.III-7527/21 DATED NIL, PASTED ON THE BUILDING BEARING DOOR NO.9/1510 SITUATED IN IRITTY MUNICIPALITY Exhibit P5 TRUE COPY OF THE APPLICATION FOR LICENSE WITH APPLICATION IS 2131286000000265 SUBMITTED BY THE PETITIONER ONLINE ON 12.10.2021 RESPONDENTS' EXTS:
EXT.R1(A): TRUE COPY OF APPLICATION SUBMITTED BY THE PETITIONER ON 20.10.2021 EXT.R1(B): TRUE COPY OF COMMUNICATION DT.21.10.2021 ISSUED BY THE HEALTH INSPECTOR OF THE 1ST RESPONDENT TO THE PETITIONER.
EXT.R1(C): TRUE COPY OF APPLICATION SUBMITTED BY THE PETITIONER BY REGISTERED POST ON 22.10.2021 EXT.R1(D): TRUE COPY OF NOTICE DT.1.11.2021 ISSUED TO THE PETITIONER.