Kerala High Court
Sanil Kumar.P vs Iritty Municipality on 10 May, 2022
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
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
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
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
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
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
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
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.
