Kerala High Court
J.Bhavani Amma vs The Deputy Commissioner on 29 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
WP(C) NO. 3906 OF 2020
PETITIONERS:
1 J.BHAVANI AMMA,
AGED 85 YEARS
W/O.PRABHAKARAN PILLAI, PRASANTHI HOUSE,
VADAKKEDATH, CHENGAMANAD VILLAGE, CHENGAMANAD
P.O., ALUVA TALUK, ERNAKULAM DISTRICT-683 578
2 LAKSHMI.B.,
AGED 48 YEARS
D/O. BHAVANI AMMA, SAI VIHAR, CHENGAMANAD P.O.,
ALUVA TALUK, ERNAKULAM DISTRICT-683 578, PRESENTLY
RESIDING AT ANJANAM, SWARGAM ROAD, DESAM
P.O.,ALUVA TALUK, ERNAKULAM DISTRICT-683 015
BY ADVS.
V.N.SANKARJEE
SRI.V.N.MADHUSUDANAN
SMT.R.UDAYA JYOTHI
SRI.M.M.VINOD
SMT.M.SUSEELA
SMT. KEERTHI B. CHANDRAN
SHRI.VIJAYAN PILLAI P.K.
RESPONDENTS:
1 THE DEPUTY COMMISSIONER,
STATE GOODS AND SERVICE TAX DEPARTMENT, ERNAKULAM,
THEVARA, ERNAKULAM DISTRICT-682 015
2 THE ASSISTANT COMMISSIONER,
STATE GOODS AND SERVICE TAX DEPARTMENT,
MATTANCHERRY, KOCH TALUK, ERNAKULAM DISTRICT,PIN-
682 002
3 PAUL VARGHESE, AGED 56 YEARS
PUTHUSSERY HOUSE, NEDUMBASSERRY VILLAGE,
POIKKATTUSERRY KARA, ALUVA TALUK, ERNAKULAM
DISTRICT,PIN-683 585 (PROPRIETOR,
K.K.FRANCIERS,DOOR NO.(OLD) C P III/317 (NEW NO .C
P III/429), CHENGAMANAD P.O., CHENGAMANAD VILLAGE,
ALUVA TALUK, ERNKAULAM DISTRICT-683 578
BY ADVS.SMT.DEEPA NARAYANAN, SR.GP
SRI.S.SANTHOSH KUMAR
SMT.P.LISSY JOSE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 29.10.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C).No.3906/2020
2
P.V.KUNHIKRISHNAN, J.
--------------------------------
W.P.(C).No.3906 of 2020
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Dated this the 29th day of October, 2021
JUDGMENT
This writ petition is filed with following prayers:
i. Issue a writ in the nature of certiorari or any
other appropriate writ, order or direction
quashing Exhibit P-8 and Exhibit P-9 after calling
for the records leading thereto.
ii. Issue a writ in the nature of mandamus or any
other appropriate writ, order or direction
directing the 2nd respondent to implement Exhibit
P-7 order with immediate effect.
iii. Pass such other orders as this Honourable Court
deems fit and necessary in the interest of justice
and for proper and effective adjudication of the
case.
2. First petitioner is the mother of the 2nd petitioner.
The 2nd petitioner is the owner of a building bearing No.III/429
(old No.III/317) of Chengamanad Panchayat, by virtue of a
release deed bearing No.5960/2013 dated 26.12.2013 on the
W.P.(C).No.3906/2020
file of SRO, Chengamanad. Originally this shop room belonged
to Prabhakaran Pillai, husband of the 1 st petitioner and father
of the 2nd petitioner. Prabhakaran Pillai died in the year 1994
after bequeathing the shop room together with other
properties to the 1st petitioner by his last Will bearing
No.48/1991 on the file of the SRO, Chengamanad. The said
Prabhakaran Pillai let out the said shop room to the 3 rd
respondent in the year 1985 which was renewed by the lease
agreement dated 10.11.1993. It is the case of the petitioners
that after the death of Prabhakaran Pillai in 1994 no lease
deed was ever executed for renewal of the lease arrangement
in respect of the said shop room. It is further stated by the
petitioners that after the death of Prabhakaran Pillai, certain
disputes were arisen in respect of the lease arrangement in
respect of the shop room with the 3rd respondent, which leads
to R.C.P.No.17/2005 before the Rent Controller, Aluva, seeking
eviction under Section 11(2)(b) of the Kerala Buildings (Lease
and Rent Control) Act, 1965. Ext.P1 is the Rent Control
Petition and Ext.P2 is the objection dated 07.02.2006 filed by
the 3rd respondent. It is the further case of the petitioners that
R.C.P.No.37/2011 was also filed seeking eviction of the said
W.P.(C).No.3906/2020
shop room on the ground of additional accommodation. The
3rd respondent filed objection dated 19.07.2012, showing that
he had been the tenant in respect of the shop room since 1985
on the basis of lease agreement between him and the late
Prabhakaran Pillai, husband of the 1st petitioner and that the
lease agreement was renewed in 1993 by the 3 rd respondent.
Ext.P3 is the objection filed in R.C.P.No.37/2011. Meanwhile,
it is submitted by the petitioner that the 1 st petitioner came to
know from the information dated 17.10.2018 issued by the
State Public Information Officer, The Assistant Commissioner
of State Tax, Mattancherry that the 3rd respondent had forged
and fabricated a document as 'vadaka karar' dated 08.05.2003
alleged to have been executed by the 1 st petitioner and the 3rd
respondent in respect of the shop room fixing monthly rent at
Rs.450/- starting from 01.04.2003. Ext.P4 is the information.
It is the definite case of the petitioners that the signatures
which are claimed to be that of the 1 st petitioner in the lease
deed mentioned in Ext.P4 are not that of the 1st petitioner. The
document forming part of Ext.P4 is apparently and manifestly
a forged and fabricated document, the petitioners submit. It is
the case of the petitioners that the 3 rd respondent forged and
W.P.(C).No.3906/2020
fabricated the document forming part of Ext.P4 and on the
basis of which the 3rd respondent obtained licence under
Section 4 of the Kerala Money Lenders Act, 1958. Hence the
1st petitioner filed a complaint dated 13.11.2018 before the 2 nd
respondent against the 3rd respondent to cancel his licence
under Section 14 of the Kerala Money Lender Act and to
impose penalty under Section 18 of the said Act. Ext.P5 is the
complaint. The 3rd respondent filed Ext.P6 objection to the
complaint. Thereafter as per Ext.P7 order, the 2 nd respondent
was pleased to cancel the licence issued to the 3 rd respondent
under Section 14 of the Kerala Money Lenders Act after
imposing penalty under Section 18 of the said Act. Ext.P7 and
the order by which the fine was imposed were challenged
before the 1st respondent and the 1st respondent was pleased
to set aside those orders as per Exts.P8 and P9. Aggrieved by
the same, this writ petition is filed.
3. Heard the counsel for the petitioner, the
Government Pleader and the counsel appearing for the 3 rd
respondent.
4. The counsel for the petitioners reiterated his
contentions in the writ petition. The counsel submitted that
W.P.(C).No.3906/2020
the 3rd respondent obtained the licence by producing forged
document before the licensing authority. The counsel
submitted that the 2nd respondent perfectly justified in
cancelling licence and there is nothing to interfere with Ext.P7
order passed by the 2nd respondent. The counsel submitted
that the 2nd respondent considered the matter in detail after
analysing the evidence available and cancelled the licence and
imposed penalty and there is nothing to interfere in an appeal
filed by the 3rd respondent. The learned counsel relied on the
judgment of the Apex Court in S.P. Chengalvaraya Naidu v.
Jagannath and Others [1995 KHC 182] and Ram
Chandra Singh v. Savithri Devi and Others [2003 KHC
1609]. The counsel for the petitioners submitted that if a
party obtained an order by producing forged document, it is
trite that the entire proceedings are void ab initio. The
counsel also submitted that the licensing authority clearly
found that the document produced by the 3 rd respondent is a
forged document and the appellate authority erred in
interfering with the same. On the other hand, the counsel for
the 3rd respondent submitted that the licensing authority has
no business to decide the validity of a document. The counsel
W.P.(C).No.3906/2020
relied on Section 45 of the Evidence Act and submitted that a
detailed procedure is there in Section 45 of the Evidence Act
to prove that a document is forged. The licensing authority
has no business to decide the validity of a document and only
a competent civil court can do the same. The counsel also
submitted that as far as issuance of licence is concerned, the
production of lease agreement is not at all a criteria and that
is not a document to be considered by the licensing authority.
5. The Government Pleader submitted that a detailed
counter affidavit is filed. The Government Pleader submitted
that there is nothing to interfere with Exts.P8 and P9 orders.
The Government Pleader also relied on the judgment of the
Apex Court in Sudhakaran v. Corporation of Trivandurm
[2016 (3) KLT 247 (SC)] in which it is stated that the
requirement of consent of landlord is applicable only when a
person intends to obtain a licence for the first time and the
same is not applicable for renewal. The Government Pleader
also submitted that it is an admitted fact that there is a
landlord-tenant relationship. Moreover the petitioners filed
Rent Control Petition before the Rent Control Court against
the 3rd respondent. In such a situation, the Government
W.P.(C).No.3906/2020
Pleader submitted that, since the tenancy is not disputed, this
question will not arise for consideration.
6. I considered the contentions raised by the
petitioners and the 3rd respondent. It is an admitted fact that
the 3rd respondent is a tenant of the petitioners. There is no
dispute on that because the petitioners already approached
the Rent Control Court with an eviction petition against the 3 rd
respondent and the same is pending before the Rent Control
court. The impugned orders in this case are passed by the 1 st
respondent in an appeal filed by the 3 rd respondent against
Ext.P7 order passed by the 2nd respondent. The question that
came up for consideration before the 2 nd respondent is
whether the licence is to be cancelled based on an alleged
document produced by the 3rd respondent, which, according to
the petitioners, is a forged document. The licensing authority,
after going through the evidence available, passed Ext.P7
order, finding that the document produced by the 3 rd
respondent is a forged document. Thereafter when the appeal
was considered by the 1st respondent, the 1st respondent found
that there is no provision in the Act and Rules which mandate
that the person applying money lending licence should
W.P.(C).No.3906/2020
produce a copy of the rent deed. But the appellate authority
also went to the extent of comparing signature of Bhavani
Amma with the disputed rent deed and found that there is no
difference in the signature and also found that the disputed
document is genuine. It will be better to extract the relevant
portion of Ext.P8 order to decide the matter:
"So the only oral evidence to prove that the disputed
rent deed is a forged one is that of petitioner and the
only evidence to prove that the disputed rent deed is
genuine is of the appellant.
Smt. Bhavani Amma had not produced any expert
evidence to prove that the signature in disputed rent
agreement is not her signature. The police had not
filed any final report against the appellant alleging
that appellant forged rent deed even though they had
registered a crime against the appellant. I compared
the signature of Bhavani Amma found in the disputed
rent agreement with her admitted signature found in
the petition filed by her before the Hon'ble Rent
control Court and in the statement given by her to
the Inspecting Assistant Commissioner. On such
comparison it is found that the signatures of Bhavani
Amma found in the disputed rent deed and her
admitted signatures are similar.
In view of the above facts and circumstance I am of
the view that the interested version of Bhavani
Amma alone with out any other corroborative
W.P.(C).No.3906/2020
material is not sufficient to hold that the disputed
rent agreement is a forged one. Hence it is held that
the finding of the Inspecting Assistant Commissioner
that the disputed rent agreement is a forged one is
without any expertise and jurisdiction.
Moreover genuineness of rent agreement is not a
condition to cancel the money lending license as per
Kerala Money Lenders Act. The decisions relied on
by the appellant is also relevant in this case.
"The appellant also produced copy of
judgment of Hon'ble Supreme Court
Sudhakaran Vs. Corporation of
Thiruvananthapuram and another in 2016 3
KHC 803 in which case of Municipality Act
1994 (Kerala) it was held that requirement of
consent of land lord is applicable only when a
person intends to obtain a license for the first
time. Renewal of subsequent application for
obtaining license in expiry period of existing
license during the currency of tenancy is not
applicable for obtaining license. Even in the
case of application for obtaining license for
the first time tenant cannot be deprived for
rendering lawful business merely because
land lord withheld the consent. Valid tenancy
itself has implied authority of the land lord
for legitimate use of the premises by the
tenant".
In this case it is an admitted fact that the appellant
herein is the tenant in possession of the shop room in
W.P.(C).No.3906/2020
which he is conducting money lending business.
There is no provision in the Act and Rules which
mandate that the person applying for money lending
license should produce the copy of the rent deed.
Since the appellant is admittedly a tenant in
possession of the shop room and there is no provision
mandating the production of rent deed at the time of
applying for license, I am of the view that the order
of the Inspecting Assistant commissioner canceling
the money lending license of the appellant on the
ground that the copy of rent deed produced by the
appellant is a forged one is not proper.
In view of the the above discussion the appeal is
allowed and the order of the Inspecting Assistant
Commissioner canceling the license of the appellant
is set aside."
7. As far as the finding of the appellate authority
regarding the genuineness of the document is concerned, I
think the same is unnecessary. The appellate authority need
not look into those aspects while considering an application to
cancel the licence. Admittedly as per the Kerala Money
Lenders Act, 1958, the production of rent deed is not a
requirement for renewing the licence. Moreover in this case
the tenancy is not even disputed by the petitioners. In such
circumstances, according to me, the appellate authority need
W.P.(C).No.3906/2020
not consider the genuineness of the lease agreement produced
by the 3rd respondent. The counsel for the petitioners
submitted that there is a forgery and the forged document
produced before the authority. But, according to me, the
licensing authority or the appellate authority need not go into
the validity of the document produced before the authorities.
These points are to be considered by a competent court and
Section 45 of the Evidence Act, which says about the way in
which the genuineness of a document is to be decided.
Therefore, the finding regarding the genuineness of the
document mentioned in Ext.P8 will not stand. But, as far as
the other finding in Ext.P8 is concerned, according to me,
there is nothing to interfere with the same. As observed by
the appellate authority, there is no provision in the Act and
Rules which mandate that the person applying for money
lending licence should produce the copy of the rent deed.
Moreover, the 3rd respondent is admittedly the tenant and he
is in possession of the shop room and there is no provision
mandating the production of the rent deed at the time of
applying for licence or at the time of renewal of licence.
Moreover, it will be better to consider the dictum laid down by
W.P.(C).No.3906/2020
the Apex Court in Sudhakaran's case (supra). Relevant
portion of the judgment is extracted hereunder:
"After due consideration of the issues involved, we
find merit in the submission made on behalf of the
appellant. The statutory provision already quoted
above shows that the requirement of consent of
landlord is applicable only when a person intends to
obtain a licence for the first time. Renewal or
subsequent application for obtaining licence on
expiry of the period of the existing licence, during
the currency of the tenancy, is not applicable for
obtaining licence. Even in the case of application for
obtaining licence for the first time, the tenant cannot
be deprived of running lawful business 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."
In the light of the above discussion, I think the finding of the
appellate authority on this aspect is perfectly justified and
there is nothing to interfere. As far as Ext.P9 order is
concerned, it is only an order by which a technical penalty is
imposed in the light of Ext.P8 and there is nothing to interfere
with the same.
8. It is true that the counsel for the petitioners relied
on two judgments of the Apex Court. I considered those
W.P.(C).No.3906/2020
judgments. As far the case cited by the counsel for the
petitioners in Chengalvaraya's case (supra) and Ram
Chandra Singh's case (supra), both cases are delivered in
connection with the consideration of a suit. According to me,
it is a settled position that a judgment or decree obtained by
playing fraud on the court is a nullity and nonest in the eyes of
law. In the light of the discussions in the earlier paragraphs,
according to me, those judgments are not applicable to the
facts and circumstances of this case. But I make it clear that
all the contentions of the petitioners regarding the
genuineness of the rent deed produced before the licensing
authority are left open and the petitioners are free to agitate
that contentions before the appropriate court in accordance to
law. But, cancelling the licence by the licensing authority is
without any justification and the appellate authority perfectly
justified in setting aside Ext.P7 order as per Exts.P8 and P9.
Therefore, according to me, there is nothing to interfere
with the impugned orders. Hence, this writ petition is
dismissed. But I make it clear that all the contentions of the
petitioners about the genuineness of the alleged rent deed
produced before the 2nd respondent are left open and the
W.P.(C).No.3906/2020
petitioners are free to agitate those contentions before the
appropriate court in accordance to law.
Sd/-
P.V.KUNHIKRISHNAN
JV JUDGE
W.P.(C).No.3906/2020
APPENDIX OF WP(C) 3906/2020
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE RENT CONTROL PETITION
DATED 30.7.2005 IN R.C.P.NO.17/2005
BEFORE THE RENT CONTROLLER,ALUVA
EXHIBIT P2 TRUE COPY OF THE OBJECTION DATED
7.2.2006 FILED BY THE 3RD RESPONDENT
IN R.C.P. NO.17/2005
EXHIBIT P3 TRUE COPY OF THE OBJECTION DATED
19.7.2012 IN R.C.P NO 37/2011 ON THE
FILE OF THE RENT CONTROLLER, ALUVA
EXHIBIT P4 TRUE COPY OF THE INFORMATION DATED
17.10.2018 ISSUED BY THE STATE PUBLIC
INFORMATION OFFICER, THE ASSISTANT
COMMISSIONER OF STATE TAX,
MATTANCHERRY, TOGETHER WITH THE FORGED
DOCUMENT DESCRIBED AS 'VADAKA KARAR'
DATED 8.5.2003
EXHIBIT P5 TRUE COPY OF THE PETITIONER'S
COMPLAINT DATED 13.11.2018 TO THE 2ND
RESPONDENT
EXHIBIT P6 TRUE COPY OF THE OBJECTION DATED
27.12.2018 OF THE 3RD RESPONDENT FILED
BEFORE THE 2ND RESPONDENT
EXHIBIT P7 TRUE COPY OF THE 2ND RESPONDENT'S
ORDER NO.32150427311/17-18 DATED
20.6.2019
EXHIBIT P8 TRUE COPY OF THE 1ST RESPONDENT'S
ORDER DATED 6.12.2019 IN KML APPEAL C
11-1513/2019
EXHIBIT P9 TRUE COPY OF THE 1ST RESPONDENT'S
ORDER DATED 6.12.2019 IN KML APPEAL C
11-1513A/2019
Exhibit P10 TRUE COPY OF THE LAWYER NOTICE DATED
5.1.2005 ISSUED BY ADV. T.R.
RAMANATHAN TO THE 3RD RESPONDENT
Exhibit P11 TRUE COPY OF THE 3RD RESPONDENT'S
REPLY NOTICE DATED 11.3.2005 ISSUED BY
ADV. K. NARAYANAN TO ADV.
T.R.RAMANATHAN
Exhibit P12 TRUE COPY OF THE LAWYER NOTICE DATED
2.3.2020 ISSUED BY ADV. M.P.RAMANTH,
TO THE 3RD RESPONDENT
Exhibit P13 TRUE COPY OF THE REPLY NOTICE DATED
W.P.(C).No.3906/2020
16.3.2020 ISSUED BY ADV.
M.B.SUDARSANAKUMAR TO ADV. M.P.RAMNATH
RESPONDENTS' EXHIBITS
EXHIBIT R3(A) COPY OF MONEY LENDING LICENCE ISSUED
BY THE INSPECTING ASSISTANT
COMMISSIONER, MATTANCHERRY FOR THE
YEAR 2020-2021
EXHIBIT R3(B) COPY OF THE APPEAL MEMORANDUM DATED
17.07.2019 FILED BY THE PETITIONER
BEFORE THE 1ST RESPONDENT
EXHIBIT R3(C) COPY OF THE PETITIONER IN RCP
NO.17/2005 OF THE RECNT CONTROL COURT,
ALUVA
