Kerala High Court
Jayaprakash P.S vs Kozhikode Corporation on 9 April, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943
WP(C).No.7487 OF 2021(I)
PETITIONER:
JAYAPRAKASH P.S,
AGED 62 YEARS
S/O.SEKHARAN.P., ATHUL HOUSE, PILAKANDI, PUTHIYANGADI
(PO), KOZHIKODE-673021.
BY ADV. SRI.K.PRAVEEN KUMAR
RESPONDENTS:
1 KOZHIKODE CORPORATION
REPRESENTED BY ITS SECRETARY, NEAR AKASHVANI, CALICUT
BEACH, KOZHIKODE-673032.
2 THE SECRETARY,
KOZHIKODE CORPORATION, NEAR AKASHVANI, CALICUT BEACH,
KOZHIKODE-673032.
3 SREERAJ.P.,
S/O.SEKHARAN P., C/O.SHEEJA, ANAGHA, PUTHIYANGADI
(PO), KOZHIKODE-673021.
R1-2 BY ADV. SHRI.V.KRISHNA MENON, SC, KOZHIKODE
MUNICIPAL CORPORATION
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-04-
2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.7487 OF 2021(I)
2
C.R.
P.B.SURESH KUMAR, J.
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W.P.(C) No.7487 of 2021
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Dated this the 9th day of April, 2021
JUDGMENT
The father of the petitioner owned a building consisting of a
few shop rooms within the limits of the first respondent Corporation
(the Corporation). On the death of the father, the said building
devolved on the mother of the petitioner, the petitioner, two sisters of
the petitioner and the third respondent, the brother of the petitioner.
While so, the mother of the petitioner executed Ext.P3 licence
agreement in favour of the petitioner in respect of one of the shop
rooms in the building bearing door No.39/1579B. Ext.P3 licence
agreement has been executed by the mother of the petitioner styling
herself as the owner of the building. On the strength of Ext.P3, the
petitioner is engaged in the trade of manufactured fireworks, Chinese
crackers, sparklers etc., in the shop room covered by Ext.P3 licence
agreement since 09.04.2013, after obtaining licence from the
competent authority under the Explosives Rules, 2008. The mother of
WP(C).No.7487 OF 2021(I)
the petitioner died on 01.09.2013. The petitioner, however, has not
obtained licence as provided for under Section 447 of the Kerala
Municipality Act, 1994 (the Act). Later, on 23.07.2020, the competent
authority of the Corporation called upon the petitioner to obtain
licence as provided for under Section 447 of the Act for the trade
undertaken by him in the shop room covered by Ext.P3. Ext.P6 is the
notice issued by the Corporation to the petitioner in this regard. It is
stated by the petitioner that though he approached the Corporation for
licence on receipt of Ext.P6 notice, the application preferred by the
petitioner in this regard viz, Ext.P9 has been returned by the
Corporation, taking the stand that the same can be entertained only if
it is accompanied by the consent letters of all the siblings of the
petitioner who own the building along with the petitioner. It is stated
that the petitioner had in fact produced along with Ext.P9 application,
the consent letters of his sisters, and he could not produce the consent
letter of his brother, the third respondent, who refused to give the
consent letter sought by the Corporation. The case of the petitioner is
that in terms of the provisions of the Act and the Rules made
thereunder, consent letter could be insisted by the Corporation for
licence only where the applicant is a person other than the owner of
the premises. According to the petitioner, as he is one of the co-
owners of the premises, he has to be treated as the owner of the
WP(C).No.7487 OF 2021(I)
premises and that the Corporation is, therefore, not justified in
insisting production of the consent letters of other co-owners of the
premises for the purpose of considering the application for licence
preferred by the petitioner. The petitioner, therefore, seeks directions
to the second respondent to accept Ext.P9 application and issue the
licence sought for by him, without insisting production of consent
letters of other co-owners including the third respondent.
2. Though notice was issued to the third respondent by
special messenger, he has not chosen to appear in the matter.
3. Heard the learned counsel for the petitioner as also
the learned Standing Counsel for the Corporation.
4. The learned counsel for the petitioner asserted the
case set out in the writ petition. The learned Standing Counsel for the
Corporation, however, pointed out that consent letters of the owners of
the premises are mandatory for the purpose of considering the
application for licence for the first time, and the same cannot be
dispensed with.
5. The provision relied on by the learned Standing
Counsel for the Corporation to justify the aforesaid stand is sub-section
(3) of Section 492 of the Act. Sub-section (3) of Section 492 of the Act
reads thus:
"(3) Where any person intending to obtain a licence or permission for the
first time and where the applicant is a person other than the owner of the
WP(C).No.7487 OF 2021(I)
premises in question, he shall, along with the application produce the
written consent of the owner of the premises and the period of the licence
shall not exceed the period, if any, specified in the consent."
Identical provision is there in the Kerala Municipality (Issue of Licence
to Dangerous and Offensive Trades and Factories) Rules, 2011. A
reading of the extracted provision would indicate that the said
provision applies only to cases where the applicant for licence is a
person other than the owner of the premises. In the case on hand, the
petitioner is one among the co-owners of the premises. A co-owner of
a property owns every part of the composite property along with
others, and it cannot be said that he is only a part-owner or a
fractional owner of the property. In other words, a co-owner of a
property has to be treated as the owner of the property for all practical
purposes until the property is partitioned among the co-owners.
Placing reliance on a passage from Salmond on Jurisprudence (13 th
Edition), the Apex Court has clarified the said legal position in Sri Ram
Pasricha v. Jagannath and others, (1976) 4 SCC 184. The relevant
paragraphs of the said judgment read thus:
26. Mr V.S. Desai reads to us from Salmond on Jurisprudence (13th Edn.)
and relies on the following passage in Chapter 8 (Ownership), para 46 at
p. 254:
"As a general rule a thing is owned by one person only at a
time, but duplicate ownership is perfectly possible. Two or more
persons may at the same time have ownership of the same thing
vested in them. This may happen in several distinct ways, but the
simplest and most obvious case is that of co-ownership, partners,
for example, are co-owners of the chattels which constitute their
stock-in-trade, of the lease of the premises on which their
WP(C).No.7487 OF 2021(I)
business is conducted, and of the debts owing to them by their
customers. It is not correct to say that property owned by co-
owners is divided between them, each of them owning a separate
part. It is an undivided unity, which is vested at the same time in
more than one person.... The several ownership of a part is a
different thing from the co-ownership of the whole. So soon as
each of two co-owners begins to own a part of the thing instead of
the whole of it, the co-ownership has been dissolved into sole
ownership by the process known as partition. Co-ownership
involves the undivided integrity of what is owned".
27. Jurisprudentially it is not correct to say that a co-owner of a property is
not its owner. He owns every part of the composite property along with
others and it cannot be said that he is only a part-owner or a fractional
owner of the property. The position will change only when partition takes
place. It is, therefore, not possible to accept the submission that the
plaintiff who is admittedly the landlord and co-owner of the premises is
not the owner of the premises within the meaning of Section 13(1)(f). It is
not necessary to establish that the plaintiff is the only owner of the
property for the purpose of Section 13(1)(f) as long as he is a co-owner of
the property being at the same time the acknowledged landlord of the
defendants.
In the light of the said legal position, I am of the view that the stand of
the Corporation that the petitioner has to produce consent letters of
the remaining co-owners of the premises for the purpose of
considering the application for licence is unsustainable in law. I take
this view also having regard to the fact that the object of the provision
aforesaid is only to ensure that strangers do not establish business in
the premises unconnected to them, leading to chaotic situations
involving not only the landlords, but also the civic bodies.
In the result, the writ petition is allowed and the second
respondent is directed to accept Ext.P9 application and grant the
WP(C).No.7487 OF 2021(I)
licence sought for by the petitioner forthwith, without insisting
production of consent letters of the remaining co-owners of the
premises, if the application of the petitioner is otherwise in order.
Sd/-
P.B.SURESH KUMAR
Mn JUDGE
WP(C).No.7487 OF 2021(I)
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE DEATH CERTIFICATE IN
RESPECT OF PETITIONER'S FATHER.
EXHIBIT P2 TRUE COPY OF THE LEGAL HEIR CERTIFICATE OF
PETITIONERS FATHER.
EXHIBIT P3 TRUE COPY OF THE LICENSE AGREEMENT DATED
01.11.2012.
EXHIBIT P3(A) TRUE COPY OF THE CONSENT OF PETITIONER'S
MOTHER TO RUN FIREWORKS BUSINESS.
EXHIBIT P4 TRUE COPY OF THE EXPLOSIVE LICENSE OF THE
PETITIONER NO.1358/KDE/2013 DATED
09.04.2013.
EXHIBIT P4(A) TRUE COPY OF THE PROCEEDINGS
NO.2013/3592/11/D5 DATED 09.04.2013 OF THE
ADDITIONAL DISTRICT MAGISTRATE, KOZHIKODE.
EXHIBIT P5 TRUE COPY OF THE DEATH CERTIFICATE OF
PETITIONER'S MOTHER.
EXHIBIT P6 TRUE COPY OF THE NOTICE NO.E/14/323/2020D
DATED 23.07.2020.
EXHIBIT P7 TRUE COPY OF THE CONSENT LETTERS OF
PETITIONER'S SISTERS DATED 03.08.2020.
EXHIBIT P8 TRUE COPY OF THE RECEIPT NO.24308 DATED
17.03.2021 SHOWING RECEIPT OF APPLICATION
OF TRANSFER OF NAME (MUTATION).
EXHIBIT P9 TRUE COPY OF THE APPLICATION FOR D&O
LICENSE SUBMITTED BY PETITIONER BEFORE THE
1ST RESPONDENT.
//TRUE COPY//
PA TO JUDGE
