Radhakrishnan vs. The Corporation Of Thiruvananthapuram - Kerala High Court, 04 January 2022

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE T.R.RAVI TUE AY, THE 4TH DAY OF JANUARY 2022 / 14TH POUSHA, 1943 WP(C) NO. 19774 OF 2021 PETITIONERS: 1 RADHAKRISHNAN AGED 80 YEARS S/O NARAYANAN, PUTHENVEEDU, KAVANADU.P.O, KOLLAM-691003, PRESENTLY RESIDING AT 'AVANI', RRA-E-74, RISHIMANGALAM, VANCHIYOOR, THIRUVANANTHAPURAM-695035. 2 SUBIN.R, AGED 42 YEARS S/O. RADHAKRISHNAN, 'AVANI', RRA-E-74, RISHIMANGALAM, VANCHIYOOR, THIRUVANANTHAPURAM-695035. BY ADVS. SRI D.KISHORE SMT.MEERA GOPINATH SRI R.MURALEEKRISHNAN (MALAKKARA) MS.ARYA JOSEPH RESPONDENTS: 1 THE CORPORATION OF THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY, CORPORATION BUILDINGS, PALAYAM, THIRUVANANTHAPURAM-695033. 2 THE SECRETARY CORPORATION OF THIRUVANANTHAPURAM, CORPORATION BUILDINGS, PALAYAM, THIRUVANANTHAPURAM-695033. 3 THE HEALTH INSPECTOR, CORPOPORATION OF THIRUVANANTHAPURAM, SECRETARIAT, CIRCLE, THIRUVANANTHAPURAM-695001. 4 RAJAN PILLAI FOUNDATION, NNC ESTATE, VADAKKEVILA.P.O, KOLLAM-691010, REPRESENTED BY ITS EXECUTIVE DIRECTOR.

W.P.(C)No.19774/2021 2 5 THE EXECUTIVE DIRECTOR RAJAN PILLAI FOUNDATION, NNC ESTATE, VADAKKEVILA.P.O, KOLLAM-691010. BY ADVS. R1 TO R3 BY SRI N.NANDAKUMARA MENON (SR.) SHRI.P.K.MANOJKUMAR,SC,TVPM CORPORATION R4 & R5 BY B.MOHANLAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.12.2021, THE COURT ON 4.1.2022 DELIVERED THE FOLLOWING:

W.P.(C)No.19774/2021 3 T.R. RAVI, J. -------------------------------------------- W.P.(C)No.19774 of 2021 -------------------------------------------- Dated this the 4th day of January, 2022 JUDGMENT The petitioners, aggrieved by the refusal of the respondents 1 to 3 to issue them trade license on the ground that they have not produced the consent from the landlord, have filed the writ petition.

The 1st petitioner is the father of the 2nd petitioner. They are engaged in textile and other related businesses and they are conducting the business in the land and shed owned by the 4th respondent. Exhibits P1, P1(a), P2, P2(a), P3 and P3(a) are copies of the licence agreements entered into between the 2nd petitioner and the 4th respondent during various periods. Initially, the business was carried on under the name and style “New Maharaja Dress World”. Later, it was changed as “Avani Textiles” for a short period and it is submitted that the business is now carried on under the name “Pulimoottil Textiles”. It would appear that there were arrears of rent which resulted in the execution of Ext.P5 agreement. Petitioners submit that they have made improvements worth Rs.1,30,00,000/- and that textile stocks worth

W.P.(C)No.19774/2021 4 Rs.2,20,00,000/- are available. It is also stated that the petitioners had helped the 4th respondent to evict one of their tenants by paying him a sum of Rs.6 lakhs. It is stated that for the purpose of GST registration, the parties had executed Ext.P6 agreement and that the petitioners have obtained GST registration as per Ext.P7, in the name of Pulimoottil Textiles. The petitioners have also obtained registration under the Micro, Small and Medium Enterprises Development Act, which has been produced as Ext.P8. According to the petitioners, after the execution of Exts.P5 and P6, the respondents 4 and 5 have asked them to vacate the premises, as they have a prospective purchaser for the property, which the petitioners did not agree to since they had made large investments and had converted the shed into a building where the business was to be inaugurated on 9.8.2021. It is stated that on the day fixed for inauguration, the respondents 4 and 5 had filed a complaint before the Cantonment Police Station against the petitioners alleging that Ext.P6 agreement was forged, which resulted in the Hon'ble Mayor who was to inaugurate the business backing off. The petitioners state that they had started the business on 11.8.2021 and on 12.8.2021, the 5th respondent issued Ext.P9 communication asking the 1st petitioner to remove all the goods stored in the

W.P.(C)No.19774/2021 5 property and building with immediate effect. Another communication Ext.P10 was issued on the same date to the employees of the petitioners pointing out that Pulimoottil Textiles was functioning without the consent and knowledge of the 4th respondent and on forged documents. The petitioners have produced Ext.P11 communication dated 30.6.2021 in which the 4th respondent had agreed to reimburse the cost of renovation and maintenance incurred by the petitioners. Ext.P12 is stated to be the reply sent to Ext.P11 communication informing that a sum of Rs.98,10,500/- had been expended by the petitioners for renovation. It is the petitioners' case that till 30.6.2021, there was no dispute between the petitioners and the 4th and 5th respondents.

The 4th respondent has filed O.S.No.421 of 2021 before the Munsiff Court, Kollam, against the 2nd respondent, for recovery of the possession of the building and for ancillary reliefs. Ext.P13 is the plaint in the suit. Ext.P14 is the FIR in Crime No.1058 of 1991 of Cantonment Police Station registered against the 2nd petitioner on the basis of the complaint of the 5th respondent. It is stated that the 4th respondent had submitted the cheque for Rs.10 lakhs issued by the 2nd petitioner as security deposit, for encashment. On 24.8.2021, the 3rd respondent Corporation issued notice to the 1st

W.P.(C)No.19774/2021 6 petitioner stating that the establishment was being run without obtaining necessary licence from the Corporation. On 26.8.2021, the petitioner submitted an application for issuance of trade licence. The same is stated to have been not accepted, for want of consent from the landlord. On 9.9.2021, the 1st petitioner submitted Ext.P16 representation before the 2nd respondent seeking to issue trade licence. The receipt for payment of property tax had also been annexed with the representation. On 15.9.2021, the Health Supervisor attached to the office of the 3rd respondent also issued a notice to the 2nd petitioner intimating him that the business is being conducted without the required licence. The petitioners submit that the licence is in force till 16.4.2022 and going by the dictum laid down by the Hon'ble Supreme Court in Sudhakaran v. Corporation of Trivandrum & Anr. reported in [2016 (3) KHC 803], the licence cannot be denied to the tenant merely for the want of consent from the landlord, since a valid tenancy itself has the implied authority of the landlord for legitimate use of the premises by the tenant.

A statement has been filed by the 1st respondent stating that the petitioners are conducting business without obtaining the necessary licence and that despite notices being issued on

W.P.(C)No.19774/2021 7 24.8.2021 and 15.9.2021 to stop the business, the business is still being continued. The respondents 4 and 5 have filed a counter affidavit. It is contended that the petitioners have suppressed material facts. The execution of Exhibits P1, P1(a), P2, P2(a), P3, P3(a), and P4 are admitted. Exhibit P5 has also been admitted and it has been stated that the agreement has been executed incorporating the licence fee arrears. It was further stated that when the 2nd petitioner failed to clear the rent arrears, they were compelled to file Exhibit P13 suit praying for a direction to surrender vacant possession. Exhibit R4(b) has been produced along the counter affidavit, which is the affidavit filed by the 2nd petitioner, challenging the maintainability of the suit. The respondents 4 and 5 have denied knowledge about payment of money by the petitioners to another tenant as well as the improvements that are said to have been made by the petitioners. It was further contended that the license was issued earlier to the 2nd respondent and that the petitioners are not entitled to contend that they are conducting the business together. There is also a contention that Exhibit P6 is not genuine and has been created by the petitioners by forging the signature of the respondents including the seal of the Executive Director of M/s.Rajan Pillai

W.P.(C)No.19774/2021 8 Foundation. It is further contended that the petitioners are not entitled to the protection of the Rent Control Act and that they cannot continue on the basis of Exhibit P6 forged licence. It is stated that the respondents have filed O.S. No.971 of 2021 before the Munsiff Court, Thiruvananthapuram against the 1st petitioner, praying for permanent prohibitory injunction and for other reliefs. Exhibit R4(f) which is the F.I.R in Crime No.1297 of 2021 registered against another staff of the petitioners and other identified persons has also been produced. In the above circumstances, it is submitted that the petitioners are not entitled to get renewal of the licence by invoking Section 492(3) of the Kerala Municipalities Act,1994. 5. Heard Sri D.Kishore, counsel for the petitioners, Sri Nandakumara Menon, Senior Advocate, instructed by Sri P.K.Manojkumar on behalf of respondents 1 to 3 and Sri B.Mohanlal, counsel for the respondents 4 and 5. 6. Admittedly, the 2nd petitioner had been inducted by the respondents 4 and 5 as a licensee and the 2nd petitioner was conducting business in the premises in question. It is also admitted that since the 2nd respondent was in arrears of rent, a suit O.S.No.421 of 2021 (Ext.P13) has been filed before the Munsiff

W.P.(C)No.19774/2021 9 Court, Kollam, seeking eviction of the 2nd respondent. It is stated in the plaint that the suit will be amended at the appropriate time for seeking relief of arrears of rent and damages. The suit is seen to have been filed on 5.8.2021. The respondents 4 and 5 have also admittedly filed O.S.No.971 of 2021 before the Munsiff Court, Thiruvananthapuram, praying for a decree of permanent prohibitory injunction against the 1st petitioner. Two criminal complaints have also been filed, one against the petitioners on the allegation of forgery and another against a person stated to be an employee of the petitioners and some other persons under section 380 of IPC.

In the light of the above proceedings which are admittedly pending, the question whether Ext.P6 is forged or otherwise is a matter that has to be finally adjudicated in those proceedings and this Court cannot go into the issue in exercise of the juri iction under Article 226 of the Constitution of India. So also, the question regarding eviction of the 2nd petitioner and whether the 1st petitioner should be injuncted from entering into the premises has also to be gone into in the above said proceedings. The only question that this Court is called upon to consider is whether the 1st respondent is justified in denial of

W.P.(C)No.19774/2021 10 renewal of licence/issuance of licence to the petitioners for the conduct of the business, solely for the reason that they have not obtained consent from the landlord.

In Marimuthu v. Director General of Police [1999 (3) KLT 662], a Division Bench considered the question of withholding of consent by the landlord for conduct of business by the tenant, after the period of lease. The Bench took note of the fact that eviction petition was pending and held that possession cannot be held as unlawful and that Corporation cannot insist on production of written consent. In Swapna Jestus K. v. Secretary, Pulpally Grama Panchayat & Anr. [2013(1)KLT 444], a Single Judge of this Court held that the Panchayat cannot insist on fresh consent when licence had been issued earlier for carrying out the business. In Shajahan v. Alice George [2015 (1) KLT 995], this Court held that landlord's consent cannot be insisted upon for renewal of trade licence. In Sudhakaran (supra), the Apex Court categorically held that requirement of consent from landlord under Section 492(3) of the Kerala Municipality Act,1994 is only applicable when a person intends to obtain a licence for the first time. The Court further held that even in the case of application for licence for the first time, tenant

W.P.(C)No.19774/2021 11 cannot be deprived of running a lawful business for reason that landlord withheld consent. It was held that valid tenancy itself has implied authority of the landlord for legitimate use of the premises by the tenant. In Vijaya Jyothi Traders v. Municipal Corporation of Thrissur & Ors. [2018 (5) KHC 680], this Court held that non-renewal of trade licence for the reason that the tenant forged the signature of the landlord in the NOC is not sustainable since the Secretary of the Municipality has no authority to adjudicate on the issue whether signature in a consent letter is forged, which is a matter that comes within the domain of the police.

In the light of the law laid down by the Hon'ble Supreme Court and by this Court in the aforesaid judgments, the writ petition is disposed of directing respondents 1 to 3 to consider and pass orders on the application for trade licence submitted by the petitioners, without insisting on the consent of the 4th respondent, at the earliest, at any rate within one month from the date of receipt of a certified copy of this judgment. It is however made clear that the above direction will not in any way prejudice the contentions of respondents 4 and 5 regarding the validity of Ext.P6 agreement. It is further made clear that this Court has not made

W.P.(C)No.19774/2021 12 any observation on the merits of the contentions of either the petitioners or the respondents 4 and 5 as well as the issues raised in the civil suits and the criminal proceedings initiated at the instance of respondents 4 and 5. T.R. RAVI

JUDGE dsn

W.P.(C)No.19774/2021 13 APPENDIX OF WP(C) 19774/2021 PETITIONER EXHIBITS EXHIBIT P1OF THE DEED OF LICENCE DATED 1.6.2016 EXECUTED BETWEEN THE 2ND PETITIONER AND THE 4TH RESPONDENT EXHIBIT P1(A)OF THE DEED OF LICENCE DATED 1.6.2016 EXECUTED BETWEEN THE 2ND PETITIONER AND THE 4TH RESPONDENT SHOWING THE MONTHLY LICENCE FEE OF RS.3 LAKHS EXHIBIT P2OF THE DEED OF LICENCE DATED 1.5.2017 EXECUTED BETWEEN THE 2ND PETITIONER AND THE 4TH RESPONDENT EXHIBIT P2(A)OF THE DEED OF LICENCE DATED 1.5.2017 EXECUTED BETWEEN THE 2ND PETITIONER AND THE 4TH RESPONDENT SHOWING THE MONTHLY LICENCE FEE OF RS.3.30 LAKHS EXHIBIT P3OF THE DEED OF LICENCE DATED 18.7.2018 EXECUTED BETWEEN THE 2ND PETITIONER AND THE 4TH RESPONDENT EXHIBIT P4OF THE DEED OF LICENCE DATED 8.6.2020 EXECUTED BETWEEN THE 2ND PETITIONER AND THE 4TH RESPONDENT EXHIBIT P5OF THE AGREEMENT DATED 8.6.2020 EXECUTED BETWEEN THE 2ND PETITIONER AND THE 4TH RESPONDENT EXHIBIT P6OF THE AGREEMENT OF LEASE DATED 17.5.2021 EXECUTED BETWEEN THE 1ST PETITIONER AND THE 4TH RESPONDENT EXHIBIT P7OF THE GST REGISTRATION CERTIFICATE IN FORM GST REG-06 ISSUED TO THE 1ST PETITIONER FOR PULIMOOTTIL TEXTILES EXHIBIT P8OF THE REGISTRATION CERTIFICATE ISSUED BY THE GOVERNMENT OF INDIA TO PULIMOOTTIL TEXTILES UNDER THE MSMED ACT EXHIBIT P9OF THE COMMUNICATION DATED 12.8.2021 ISSUED BY THE 5TH RESPONDENT TO THE 1ST PETITIONER EXHIBIT P10OF THE COMMUNICATION DATED 12.8.2021 ISSUED BY THE 5TH RESPONDENT TO THE STAFF AND EMPLOYEES OF THE ESTABLISHMENT OF

W.P.(C)No.19774/2021 14 THE PETITIONERS EXHIBIT P11OF THE COMMUNICATION DATED 30.6.2021 ISSUED BY THE 4TH RESPONDENT TO THE 2ND PETITIONER EXHIBIT P12OF THE COMMUNICATION DATED 2.7.2021 ISSUED BY THE 2ND PETITIONER TO THE 4TH RESPONDENT EXHIBIT P13OF THE PLAINT IN O.S.NO.421/2021 OF MUNSIFF'S COURT, KOLLAM EXHIBIT P14OF THE FIR IN CRIME NO.1058/2021 OF CANTONMENT POLICE STATION EXHIBIT P15OF THE NOTICE NO.H1/SET/41/21 DATED 24.8.2021 ISSUED BY THE 3RD RESPONDENT TO THE 1ST PETITIONER EXHIBIT P16OF THE REPRESENTATION DATED 9.9.2021 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P16(A)OF THE ACKNOWLEDGEMENT RECEIPT ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT EVIDENCING THE ACCEPTANCE OF EXHIBIT P16 EXHIBIT P17OF THE NOTICE DATED 15.9.2021 ISSUED BY THE HEALTH SUPERVISOR ATTACHED TO THE OFFICE OF THE 3RD RESPONDENT TO THE 2ND PETITIONER. RESPONDENTS' EXTS: EXT.R4(A) THEOF THE CHEQUE AND CHEQUE RETURN MEMO DATED 13/09/2021 OF FEDERAL BANK LTD., PATTOOR BRANCH, THIRUVANANTHAPURAM ISSUED BY THE 2ND PETITIONER TO THE RESPONDENTS 4 AND 5 EXT.R4(B) THEOF THE AFFIDAVIT DATED 24/08/2021 FILED BY THE 2ND PETITIONER BEFORE THE MUNSIFF COURT, KOLLAM IN O.S.NO:421/2021 EXT.R4(C) THEOF THE APPLICATION FILED BY THE RESPONDENTS 4 AND 5 DATED 16/08/2021 AND ITS REPLY

NO:RTI/H11/GE8/57062/21

DATED 17/09/2021 ISSUED BY THE 3RD RESPONDENT. EXT.R4(D) THEOF THE APPLICATION FILED BY THE RESPONDENTS 4 AND 5 DATED 16/08/2021 AND ITS REPLY NO:G-5551/2021 DATED 05/10/2021 ISSUED BY THE 3RD RESPONDENT.

W.P.(C)No.19774/2021 15 EXT.R4(E) THEOF THE PLAINT IN O.S.No.971/2021 FILED BY THE RESPONDENTS 4 AND 5 BEFORE

THE MUNSIFF

COURT, THIRUVANANTHAPURAM AGAINST THE 1ST PETITIONER EXT.R4(F) THEOF THE FIR AND FIS IN CRIME NO:1297/2021 IN CANTONMENT POLICE STATION DATED 26/10/2021