JOSEPH v. & 1 ST

R1 & R2 BY ADV. SRI.R.AZAD BABU R3 BY STANDING COUNSEL SRI.M.K.CHANDRAMOHAN DAS THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 19/03/2010, THE COURT ON 29/03/2010 DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & P.R.Raman, J. ------------------------------------ W.A.No.1853 of 2009 ------------------------------------ Dated this, the 29th day of March, 2010 JUDGMENT J.Chelameswar, C.J. This is an appeal against the judgment dated 30th June, 2009 in W.P.(C) No.21394 of 2008 by the second respondent therein.

2. The third respondent Municipality issued Ext.P9 notice calling upon the second respondent herein to stop the business of hotel and tea shop that is being carried on in a building owned by the appellant herein on the ground that such a business was without the appropriate licence contemplated under the Kerala Municipality Act, 1994.

3. The first respondent is the mother of the second respondent herein. While the second respondent herein challenged W.A. No.1853 of 2009 - 2 - the abovementioned Ext.P9 notice before the Municipal Council, the first respondent submitted two representations Exts.P12 and P13 to the third respondent Municipality praying for issuance of an appropriate licence for running the above- mentioned hotel and tea shop. By a composite order Ext.P15, the third respondent Municipality declined to interfere with Ext.P9 notice and also declined to issue any licence as prayed for by the first respondent herein on the ground that the consent of the appellant herein was not produced as contemplated under Section 492(3) of the Kerala Municipalitiy Act.

4. The abovementioned order was challenged by the second respondent herein by a revision before the Tribunal constituted under the abovementioned Act unsuccessfully. By an order (Ext.P16) the Tribunal affirmed the above order of the Municipal Council.

5. The abovementioned order of the Tribunal (Ext.P16) is challenged in the writ petition from out of the same W.A. No.1853 of 2009 - 3 - this appeal arises. The curious fact is that while Ext.P16 order was passed in a revision filed only by the second respondent, the writ petition was filed by both the second respondent herein and his mother (respondent No.1 herein), though the respondent No.1 never approached any statutory appellate authority challenging the correctness of the order by which the application for licence was rejected.

6. The case of the writ petitioners/respondents 1 and 2 herein is that they are tenants of the appellant herein and have been carrying on the business of running a hotel and tea shop for a long time and therefore, they are not required to produce consent of the appellant herein as contemplated under Section 492(3) of the Kerala Municipality Act.

7. We must say at the outset, whether there is any legal relationship of landlord and tenant between the appellant and respondents 1 and 2 herein, collectively or separately, is a doubtful fact. The admitted facts are that one Sukumaran was W.A. No.1853 of 2009 - 4 - the tenant of the appellant with respect to the premises in question. The said Sukumaran is the brother of the husband of the first respondent and uncle of the second respondent. The appellant herein initiated proceedings for eviction of the abovementioned Sukumaran under the Kerala Buildings (Lease and Rent Control) Act, 1965 and obtained an order of eviction on the twin grounds of default in payment of rent and also that the premises was unauthorisedly sublet. Sukumaran died during the pendency of the said proceedings. The exact date of the death is not made available to this Court.

8. The learned Judge by the judgment under appeal held thus: “Taking into consideration, the peculiar facts and circumstances of the case in hand, it is ordered that if the application for DLO license is otherwise in order, the Municipality will grant it co-terminus with dispossession in execution of the Rent Control Order. While the petitioners are hereby directed not to make any change to the structure of the building, as it now stands; on production of a copy of this judgment, the Munsiff's Court W.A. No.1853 of 2009 - 5 - before which execution proceedings in the Rent Control matter is pending would consider expediting the enforcement proceedings. It is further clarified that the benefit of this judgment does not accrue to the second petitioner who is not entitled to any license and his possession or occupation in the first petitioner would also be co-terminus with the eviction in enforcement of the Rent Control Court's order.”

9. Aggrieved by the said order, the second respondent therein who was the owner of the premises in question filed the present appeal. The learned counsel for the appellant argued that the learned Judge fell in error in directing the Municipality to grant licence in favour of the first writ petitioner. It is argued that under sub-section (3) of Section 492 of the Kerala Municipality Act, if the person intending to obtain a licence for the first time under the Act happens to be a person other than the owner of the premises in question, such a person is required to produce the written consent of the owner of the premises. In the instant case, no such written consent was given by the appellant, much less produced by the writ petitioners W.A. No.1853 of 2009 - 6 - before the Municipality. But, the learned Judge proceeded on the wrong premise that the consent such as one contemplated under Section 492(3) of the Act is not necessary in view of the fact that the activity was being continued for a long period within the knowledge of the Municipality. In fact, in paragraph 6 of the judgment the learned Judge held as follows: “The ground of refusal of licence is that the applicant had not produced the consent of the landlord to occupy the premises. Law provides that in cases where a license is already issued, consent is not required for renewal of license. In the given case, when the only conclusion that could be arrived at is that the activity being carried out by the petitioners was well within the knowledge of the Municipality, there is no reason as of now to take a strict view and thereby lead to the immediate closure of the livelihood of the first petitioner. At least she is entitled to get the benefit of continuing the interim order which is in force for the last nearly about an year, to be co-terminus with dispossession in execution of the Rent Control Order.”

10. On the other hand, learned counsel for respondents 1 and 2/writ petitioners argued that the order under appeal was passed on a consideration of equity having regard to the fact that dismissing W.A. No.1853 of 2009 - 7 - the writ petition would have deprived the writ petitioners of their livelihood.

11. Further, the learned counsel for the writ petitioners placed reliance on a judgment of this Court reported in Marimuthu v. Director General of Police (1999 (3) KLT 662) which held that the Corporation cannot insist upon the written consent from the landlord for the purpose of issuance of licence under the Municipality Act in cases where the applicant happened to be a tenant holding over. Learned counsel submitted that in view of the said pronouncement, the writ petitioners who claim to be the legal representatives of the deceased Sukumaran cannot also be called upon to produce the consent letter from the appellant as admittedly, Sukumaran was a tenant of the appellant herein.

12. We see substantial force in the submission made by the learned counsel for the appellant. Consideration of equity, in our opinion, should give way to the express provisions of the statute. The language of Section 492(3) of the Act admits of no doubt that the W.A. No.1853 of 2009 - 8 - consent of the owner of the premises is a must for securing the licence under the Kerala Municipality Act. The fact that the applicants for licence somehow entered the portion of the property and carrying on the business for quite some time, in our view, cannot be a consideration for compelling the Municipality to issue the licence without the consent of the owner of the premises ignoring the express language of the enactment. Apart from that, on the facts in the present case, the business which is said to have been in existence for a long period apparently was being carried on by somebody else (Sukumaran) other than the writ petitioners. May be the said Sukumaran and the writ petitioners are related. That does not, in our opinion, clothe the writ petitioners with any legal right.

13. In our view, the reliance on the abovementioned decision is misplaced. In the above reported case, the fact that the applicant was a tenant lawfully entitled to possession of the premises in question was not in dispute. In the instant case, it is not clear from the records as to how the writ petitioners secured possession of the W.A. No.1853 of 2009 - 9 - property in question.

14. In the circumstances, we are of the opinion that the judgment under appeal cannot be sustained and the same is required to be reversed. We accordingly reverse the same. Consequently, the writ petition stands dismissed. J.Chelameswar, Chief Justice. P.R.Raman, Judge.