Devika vs. The Secretary - Kerala High Court, 20 February 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY & THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR WEDNE AY, THE 20TH DAY OF FEBRUARY 2019 / 1ST PHALGUNA, 1940 WP(C).No. 2643 of 2019 PETITIONER: DEVIKA, AGED 54 YEARS WIFE OF PRATHEEP KUMAR, MANAGING PARTNER, GOPINATHA PILLAI AND CO. VRINDAVAN GARDENS, KANNIMELCHERI, KILIKOLLOOR, KOLLAM, PIN-691 014, KOLLAM DISTRICT. BY ADVS. SRI.MATHEW B. KURIAN SRI.K.T.THOMAS SRI.LIJO JOSEPH RESPONDENTS: 1 THE SECRETARY, MUNICIPAL CORPORATION OF KOLLAM, KOLLAM-691 001 2 NAZEEMA M, AGED 65 YEARS, WIFE OF LATE ABDUL BASHEER, RESIDING AT SUFEENA MANZIL, ASHRAMAM CHERY, KOLLAM-691 001 3 MUNICIPAL CORPORATION OF KOLLAM CORPORATION OFFICE, KOLLAM-691 001, REPRESENTED BY ITS SECRETARY. BY ADVS. SRI.M.K.CHANDRA MOHAN DAS, SC, KOLLAM MPT SHRI.MATHEWS MADATHETHU SRI.V.PHILIP MATHEW SRI.S.SREEKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.02.2019 ALONG WITH W.A.651/19, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.A.No.651 of 2019 & WP(C).No. 2643 of 2019 : 2 : JUDGMENT A.K.Jayasankaran Nambiar, J. The Writ Appeal has been preferred by the second respondent in the Writ Petition 2643 of 2019, aggrieved by the interim order dated 29.1.2019 of the learned Single Judge, that directed the respondent Corporation to receive an application from the Writ Petitioner, if submitted within 15 days from the date of the order, and issue a provisional license upto 31.3.2019 so as to enable the writ petitioner to run a petroleum retail outlet. The facts in the Writ Petition would reveal that the writ petitioner had approached this Court aggrieved by Ext.P21 order of the Tribunal for Local Self Government Institutions, by which the Tribunal dismissed the revision application preferred by the petitioner against an order of the respondent/Kollam Municipal Corporation that rejected an application for D & O license for the year 2015-2016. It would appear that the application for license submitted by the writ petitioner for the said year was rejected by the Corporation on the ground that the petitioner had not supported the application with a consent, obtained from the landlord of the premises where the retail outlet was functioning. This was seen as in violation of the Rules, which required an applicant for D & O license to support the application with a consent from the landlord, if the activity in question was being carried on in tenanted premises. The Tribunal, while considering the Revision Petition, found that there was no material to show that the application submitted by the writ petitioner was one seeking renewal of an earlier license granted to her and hence, the application had to be seen as one for a

W.A.No.651 of 2019 & WP(C).No. 2643 of 2019 : 3 : fresh license. It thereafter found that, in the context of an application for fresh license, a consent from the landlord was a mandatory pre-requisite for consideration of the same by the respondent/Corporation. That Tribunal further found that, at any rate, the application under consideration was one for the year 2015-16 and hence the same could not be used for the grant of any license for a subsequent period. The Revision Petition was, therefore, dismissed inter alia, on the finding that the matter itself had become practically infructuous before the Tribunal.

In the Writ Petition, as already noted, the challenge was to Ext.P21 order of the Tribunal, as also to Exts.P14 and P15 orders of the respondent Corporation, and a prayer was made for a direction to the first respondent/Corporation to renew the license applied for by the petitioner. The learned Single Judge passed an interim order directing the secretary of the respondent/Corporation to receive an application from the petitioner, if submitted within 15 days from the date of the order, and to issue a provisional license to the petitioner upto 31.3.2019 so as to enable the petitioner to run the retail outlet. It is against the said interim order that the Writ Appeal has been preferred by the second respondent in the Writ Petition, on the contention that the learned Single Judge could not have passed the interim order in question, since it virtually amounted to allowing the Writ Petition at the interim stage. It is also pointed out that there are various other reasons as to why the Writ Petitioner ought not be granted a license by the respondent/Corporation and, by the issuance of the interim order, the learned single Judge has virtually prevented a consideration of these aspects by the respondent/ Corporation.

W.A.No.651 of 2019 & WP(C).No. 2643 of 2019 : 4 :

When the matter came up for admission, taking note of the limited issue that was involved in the Writ Petition, we found it appropriate to call for the Writ Petition itself so as to dispose both the Writ Petition and the Writ Appeal jointly.

We have heard Sri.V.Philip Mathews, the learned counsel for the appellant in the Writ Appeal, Sri.Mathew B. Kurian, the learned counsel for the respondent in the Writ Appeal as also the writ petitioner and Sri.Chandramohandas, the learned Standing Counsel for the respondent/Corporation.

On a consideration of facts and circumstances, we find that the challenge in the Writ Petition is to the findings in Ext.P21 order of the Tribunal for Local Self Government Institution, and the issue as to whether an applicant for a fresh licence , operating in tenanted premises, is required to submit a consent from the landlord for the purposes of supporting his application, has been decided by the Supreme Court in Sudhakaran v. Corporation of Trivandrum and another 2016 (3) KHC 803 where, in the context of persons continuing in occupation of tenanted premises as statutory tenants, it was held that even in the case of a fresh application for license, the tenant cannot be deprived of running a lawful business merely because the landlord has withheld the consent, and that a valid tenancy itself has the implied authority of the landlord for legitimate use by the tenant. The finding of the Tribunal for Local Self Government Institutions, in the order impugned in the Writ Petition, and also of the respondent/Corporation to the contrary, had therefore necessarily to be set aside by the Writ Court. The question that then requires to be considered is the propriety of the action of the learned Single Judge in directing the issuance of a provisional license to the writ petitioner at the interim

W.A.No.651 of 2019 & WP(C).No. 2643 of 2019 : 5 : stage of consideration of the Writ Petition. While we find force in the contention of the appellant that such an order for issuance of a provisional license could not have been granted by the learned Single Judge, we find that, pursuant to the said order of the learned Single Judge, an application for the year 2018-19 that was submitted by the writ petitioner on 27.1.2019, was considered by the Corporation for the grant of a provisional license upto 31.3.2019. It is the further submission of the learned counsel for the writ petitioner that yet another application was submitted before the respondent/Corporation, pursuant to the interim order of the learned Single Judge, but a copy of the same is not produced in these proceedings. In any event, in as much as the Corporation has acted upon the interim order of the learned Single Judge and issued a provisional license upto 31.3.2019, we do not deem it appropriate at this stage to interfere with the said order. We are of the view that the writ petition itself could have been disposed with the said order, taking note of the judgment of the Supreme Court in Sudhakaran (Supra). We make it clear, however, that the said interim order will not clothe the writ petitioner with any right to insist on a license for the ensuing year, namely, 2019-2020 for which she would necessarily have to prefer a fresh application, the consideration of which by the respondent/Corporation would have to be done independently on merits, and taking note of the decision of the Supreme Court in Sudhakaran (Supra).

We, therefore, dispose the Writ Petition as also the Writ Appeal by making the interim order dated 29.1.2019 in Writ Petition 2643/19, impugned in Writ Appeal 611/19 absolute for the period till 31.3.2019. We further direct that, if an application for the

W.A.No.651 of 2019 & WP(C).No. 2643 of 2019 : 6 : ensuing year, namely, 2019-2020 is preferred by the writ petitioner within two weeks from today, the same shall be considered independently by the respondent/Corporation, without insisting on a consent from the landlord, as envisaged in Sudhakaran's case (supra) and in accordance with the applicable provisions of the Statute, after hearing the writ petitioner as also the appellant. The respondent/Corporation shall ensure that a decision is taken on the application, if any submitted by the writ petitioner, within a period of three weeks from the date of receipt of such application. HRISHIKESH ROY

CHIEF JUSTICE A.K.JAYASANKARAN NAMBIAR JUDGE jes

W.A.No.651 of 2019 & WP(C).No. 2643 of 2019 : 7 : WP(C).No. 2643 of 2019 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1OF AGREEMENT NO. 5884/1966 DATED 29.12.1966 EXECUTED BETWEEN MR. KUNJU MYTHEEN KUNJU AND LATE GOPINATHAN PILLAI. EXHIBIT P2OF RECEIPT NO. 43 DATED 31.10.1995 ISSUED BY THE VADAKKEVILA PANCHAYATH AGAINST PAYMENT OF LICENSE FEE FOR PETROL PUMP AND SERVICE STATION IN DOOR NO. VIII/801 OF VADAKKEVILA PANCHAYATH FOR THE YEAR 1995-96. EXHIBIT P3OF RECEIPT NO. 50 DATED 30.09.2000 ISSUED BY THE VADAKKEVILA PANCHAYATH AGAINST PAYMENT OF LICENSE FEE FOR RUNNING THE PETROL PUMP AND SERVICE STATION IN DOOR NO. VIII/801 OF VADAKKEVILA PANCHAYATH FOR THE YEAR UPTO 2001. EXHIBIT P4OF EXTRACT OF THE LICENSE AND PERMISSION REGISTER MAINTAINED BY VADAKKEVILA PANCHAYATH FOR THE PERIOD 1994 ISSUED FROMT THE KOLLAM CORPORATION. EXHIBIT P5OF EXTRACT OF THE LICENSE REGISTER OF KOLLAM CORPORATION FOR THE PERIOD 2000-2001 ISSUED FROM THE KOLLAM CORPORATION. EXHIBIT P6OF THE AGREEMENT DATED 23.08.1984 EXECUTED BETWEEN INDIAN OIL CORPORATION AND GOPINATHAN PILLAI AND CO. EXHIBIT P7OF LEGAL HEIRSHIP CERTIFICATE NO. K.DIS .C2. 3058/04 DATED 19.08.2004 ISSUED BY THE TAHSILDAR, KOLLAM. EXHIBIT P8OF INFORMATION DATED 12.11.2013 PROVIDED BY THE CORPORATION TO THAT EFFECT UNDER THE RIGHT TO INFORMATION ACT. EXHIBIT P9OF JUDGMENT DATED 26.10.2007 IN O.S. NO. 498/2004 OF THE ADDITIONAL MUNSIFF'S COURT, KOLLAM. EXHIBIT P10OF JUDGMENT DATED 29.01.2011 OF THE DISTRICT COURT, KOLLAM IN A.S. NO. 282/2007. EXHIBIT P11OF JUDGMENT DATED 26.09.2011 OF THE HON'BLE HIGH COURT OF KERALA IN R.S.A. NO. 825/2011 EXHIBIT P12OF LETTER DATED 10.03.2014 ISSUED FROM INDIAN OIL CORPORATION LTD. EXHIBIT P13OF THE APPLICATION DATED 04.06.2015 SUBMITTED BY THE PETITIONER TO KOLLAM CORPORATION.

W.A.No.651 of 2019 & WP(C).No. 2643 of 2019 : 8 : WP(C).No. 2643 of 2019 EXHIBIT P14OF ORDER NO. VZ/H/3189/13 DATED 10.03.2016 ISSUED BY THE KOLLAM CORPORATION. EXHIBIT P15OF ORDER NO. VZ/H- 3189/13 DATED 27.02.2017 ISSUED FROM THE KOLLAM MUNICIPAL CORPORATION. EXHIBIT P16OF REVISION PETITION DATED 02.05.2017 FILED BY PETITIONER BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. EXHIBIT P17OF ORDER DATED 03.05.2017 IN I.A. NO. 789/2017 IN APPEAL NO. 434/2017 EXHIBIT P18OF STATEMENT DATED 12.11.2018 FILED BY THE CORPORATION IN REVISION PETITION NO. 21/2018 EXHIBIT P19OF WRITTEN STATEMENT DATED 08.11.2018 FILED BY THE 2ND RESPONDENT IN REVISION PETITION NO. 21/18 EXHIBIT P20OF RECEIPT DATED 19.02.2014 ISSUED BY THE MUNICIPAL CORPORATION IN RESPECT OF PAYMENT OF PROFESSION TAX FOR DOOR NO. 800 EXHIBIT P21OF ORDER DATED 29.12.2018 IN REVISION PETITION NO. 21/2018 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. EXHIBIT P22OF RENEWAL OF EXPLOSIVE LICENSE NO. P/SC/KL/14/1078 (P188764) DATED 19.12.2018 ISSUED BY THE MINISTRY OF COMMERCE AND INDUSTRY. EXHIBIT P23OF NO OBJECTION CERTIFICATE NO. B. 5749/18 DATED 03.12.2018 ISSUED BY THE REGIONAL FIRE OFFICER, FIRE AND RESCUE SERVICES, THIRUVANANTHAPURAM. EXHIBIT P24OF UDYOG AADHAR MEMORANDUM NO. 978510506875 ISSUED BY MINISTRY OF MICRO, SMALL AND MEDIUM ENTERPRISES. EXHIBIT P25OF CERTIFICATE OF PROVISIONAL REGISTRATION UNDER THE GST ACT. EXHIBIT P26OF REGISTRATION CERTIFICATE NO. VP/176 VALID UP TO 31.12.2019, FOR HAVING REGISTERED UNDER THE KERALA SHOPS & COMMERCIAL ESTABLISHMENT ACT, 1960 EXHIBIT P27OF PROPERTY TAX RECEIPT DATED 31.03.2018 ISSUED BY THE KOLLAM CORPORATION.

W.A.No.651 of 2019 & WP(C).No. 2643 of 2019 : 9 : WP(C).No. 2643 of 2019 EXHIBIT P28OF THE WHOLE BODY PET CT STUDY DATED 3.1.2017 ISSUED BY CHRISTIAN MEDICAL COLLEGE, VELLORE. EXHIBIT P29OF THE DISCHARGE SUMMARY DATED 22.2.2017 ISSUED BY AMRITHA CANCER INSTITUTE, EDAPPALLY. EXHIBIT P30OF THE REPORT DATED 15.6.2017 ISSUED BY CHRISTIAN MEDICAL COLLEGE, VELLORE. EXHIBIT P31OF THE SURGICAL PATHOLOGY REPORT DATED 12.2.2019 ISSUED BY AMRITHA INSTITUTE OF MEDICAL SCIENCE AND RESEARCH CENTRE, EDAPPALLY. EXHIBIT P32OF THE COVERING LETTER AND APPLICATION DATED 27.1.2019 SUBMITTED BY THE PETITIONER. EXHIBIT P32(a) ENGLISH TRANSLATION OF EXHIBIT P32 EXHIBIT P33OF THE POSTAL RECEIPT DATED 28.1.2019. EXHIBIT P34OF THE TRACK CONSIGNMENT REPORT RECEIPT IN RESPECT OF CONSIGNMENT NO.ELO88663143 IN EVIDENCING DELIVERY OF APPLICATION. RESPONDENTS EXHIBITS: EXHIBIT R2(a) COPY OF THE ORDER DATED 9.4.2015 ISSUED BY THE 3RD RESPONDENT ALONG WITH ENGLISH TRANSLATION. //// P.A. TO JUDGE