Kerala High Court
Anitha Juby vs The Municipality Of ... on 24 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 24TH DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943
WP(C) NO. 15428 OF 2021
PETITIONER:
ANITHA JUBY,
AGED 48 YEARS,
D/O. THOMAS GEORGE,
TEENA BHAVAN, KOLLAMPADI JUNCTION,
ELANTHOOR EAST P.O,
KOZHENCHERRY TALUK,
PATHANAMTHITTA DISTRICT - 689643.
BY ADVS.
SRI.MANU RAMACHANDRAN
SRI.M.KIRANLAL
SRI.R.RAJESH (VARKALA)
SRI.T.S.SARATH
SRI.SAMEER M NAIR
RESPONDENTS:
1 THE MUNICIPALITY OF PATHANAMTHITTA,
MUNICIPAL OFFICE,
PATHANAMTHITTA - 689645,
REPRESENTED BY ITS SECRETARY.
2 THE SECRETARY,
MUNICIPALITY OF PATHANAMTHITTA,
MUNICIPAL OFFICE,
PATHANAMTHITTA - 689645.
3 K.S. SANTHOSH KUMAR,
S/O. K.A SIVALINGAM PILLAI,
AGED 50 YEARS,
SANTHOSH NIVAS,
RANNI P.O,
THOTTAMON MURI,
RANNI VILLAGE, RANNI,
PATHANAMTHITTA DISTRICT - 689672.
WP(C) No.15428/2021
:2 :
*4 P.V. SAUDAMINI AMMAL, (DELETED)
W/O. K.A SIVALINGAM PILLAI,
AGED 75 YEARS, SANTHOSH NIVAS,
RANNI P.O, THOTTAMON MURI,
RANNI VILLAGE, RANNI,
PATHANAMTHITTA DISTRICT - 689672.
(R4 IS DELETED FROM THE PARTY ARRAY AT THE RISK
OF THE PETITIONER AS PER ORDER DATED 22/09/2021
IN IA 1/2021 IN WPC 15428/2021)
R1-2 BY ADV JAMES ABRAHAM (VILAYAKATTU)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 24.09.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) No.15428/2021
:3 :
JUDGMENT
~~~~~~~~~
Dated this the 24th day of September, 2021
Petitioner, a tenant of the 3 rd respondent, has
approached this Court seeking to direct the 2 nd respondent to
take appropriate steps as mandated under the Municipalities
Act for grant of trade licence to the petitioner without insisting
for further consent or other documents from the landlord other
than the rent agreement within a time limit fixed by this Court.
2. The petitioner applied for trade licence to run a
business of optical items, colour lab, medical items, etc. The
2nd respondent issued Ext.P3 notice to the petitioner stating
that unless the petitioner produces a written consent from the
landlord and the identity proof, her application for trade licence
cannot be processed further.
3. The petitioner would contend that she has entered
into a tenancy agreement with the 3 rd respondent as per
WP(C) No.15428/2021
Ext.P1 deed of tenancy. Subsequently, there was difference
of opinion between the petitioner and the landlord and the
landlord has now filed Ext.P2 Rent Control Petition invoking
Section 11 of the Kerala Buildings (Lease and Rent Control)
Act, 1965. Being inimical towards the petitioner, the landlord
is not providing his identity proof, to the petitioner.
4. The learned counsel for the petitioner submitted
that the Hon'ble Apex Court had occasion to consider the
issue in the context of Section 492(3) of the Kerala
Municipalities Act, 1994 and has held in the judgment in
Sudhakaran v. Corporation of Trivandrum and another
[2016 (3) KLT 247] that 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 view of the law laid down by the Apex Court,
respondents 1 and 2 are not justified in insisting for production
of a written consent from the landlord for issuing trade licence.
WP(C) No.15428/2021
5. Respondents 1 and 2 have filed a counter affidavit
wherein they stated that as per Section 492 (3) and (4) of the
Kerala Municipalities Act, the petitioner is required to produce
written consent from the landlord. According to respondents 1
and 2, sub-section (4) of Section 492 is not applicable to the
case of the petitioner because it relates only to the renewal of
licence. Here, the petitioner has applied for a fresh trade
licence. Therefore, in view of Section 492(3) of the Kerala
Municipalities Act, the petitioner has to produce written
consent from the landlord.
6. Respondents 1 and 2 further pointed out that the
application for trade licence was made by the petitioner only in
the year 2021. The period of tenancy as provided in Ext.P1
deed of tenancy is only up to 30.05.2016. Therefore, the
petitioner cannot be treated as one holding the building on the
basis of a valid tenancy.
7. I have heard the learned counsel for the petitioner
and the learned Standing Counsel for respondents 1 and 2.
There is no appearance on behalf of the 3 rd respondent
WP(C) No.15428/2021
though notice was served on him.
8. Ext.P1 deed of tenancy would show that the
petitioner has come to possession of the building in question
in a legal manner. The petitioner cannot be treated as a
trespasser into the property. Ext.P1 deed of tenancy would
also show that the tenancy was created for the purpose of
running business of optical items, colour lab, medical items,
etc.
9. The Hon'ble Apex Court has held in the judgment in
Sudhakaran v. Corporation of Trivandrum and another
(supra) that 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. In view of the judgment of the Hon'ble Apex
Court, I am of the opinion that the respondents shall consider
the application submitted by the petitioner in the light of the
judgment of the Hon'ble Apex Court.
10. In such circumstances, Ext.P3 notice is set aside.
Respondents 1 and 2 are directed to consider the application
WP(C) No.15428/2021
for trade licence submitted by the petitioner in the light of the
judgment of the Hon'ble Apex Court in Sudhakaran v.
Corporation of Trivandrum and another (supra). A decision
in this regard shall be taken within a period of one month.
Writ petition is disposed of as above.
Sd/-
N. NAGARESH, JUDGE
aks/27.09.2021
WP(C) No.15428/2021
APPENDIX OF WP(C) 15428/2021
PETITIONER'S EXHIBITS:
Exhibit P1 THE TRUE COPY OF THE RENT DEED DATED
16.07.2015
Exhibit P2 THE TRUE COPY OF THE R.C.P NO. 2/2017
BEFORE RENT CONTROL COURT,
PATHANAMTHITTA ON THE GROUND OF ARREARS
OF RENT AND BONAFIDE NEED.
Exhibit P3 THE TRUE COPY OF THE NOTICE NO. H1-
7114/2021 & H1-7012/2021 DATED
02.07.2021 ISSUED BY THE 2ND
RESPONDENT.
SR
