Monday, July 11, 2016

Sudhakaran V/s.Corp. of trivandrum July 05, 2016.


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO. 5435 OF  2016
               ( arising out of S.l.p. (c) no. 17214 of 2013 )

sudhakaran                                             … APPELLANT


corp. of trivandrum & anr.                    ... RESPONDENTS

                               J U D G M E N T


1.     This appeal has been preferred against the judgment and order  passed
by the High Court of Kerala at Ernakulam in W.A. No.356 of  2013  in  C.W.P.
No.9843 of 2011 dated 06.03.2013 whereby the High Court has  held  that  the
consent of the owner of the premises is necessary for  renewal  of  tenant’s
licence for running a hardware shop.
2.      Short question involved in this  appeal  is  the  interpretation  of
Section 492 (3) of the Kerala Municipality Act, 1994, which reads  as  under

“(3) Where any person intending to obtain a licence or  permission  for  the
first time and where the applicant is a person other than the owner  of  the
premises in question, he shall,  along  with  the  application  produce  the
written consent of the owner of the premises and the period of  the  licence
shall not exceed the period, if any, specified in the consent.”

 Facts of the case are not in dispute.  Appellant  is  the  tenant  of  suit
premises in Trivandrum District of Kerala since 01.06.2001.  He  was  issued
a licence with the consent of the  landlord  to  run  hardware  business  on
22.10.2001 by the  village  panchayat  in  question.   His  application  for
renewal was rejected on the ground that he did not produce  consent  of  the
landlord.   But  the  Tribunal  for  Local  Self  Government   Institutions,
Thiruvananthapuram vide order dated 21st March, 2011 upheld the plea of  the
appellant that the consent of the landlord was required  when  applying  for
the first time.  Renewal cannot be refused  only  on  the  ground  that  the
fresh consent was not produced by  the  statutory  tenant.   A  person  once
inducted as tenant continued as statutory  tenant  by  virtue  of  statutory
provisions of Kerala Buildings (Lease and Rent Control) Act, 1965  till  the
tenancy is terminated in accordance with law.  The operative  order  of  the
Tribunal is as follows :

 “15.  It is to be noted in this context that the  Revision  Petitioner  has
not applied for a licence for the  first  time,  I  already  said  that  the
petitioner has been running the trade on the basis of  a  valid  licence  at
least up to 31.3.2008. Under Section 492(3) of the Kerala Municipality  Act,
a consent of the owner is needed only for obtaining licence  for  the  first
time.  Since the petitioner has not applied for licence for the  first  time
the Corporation cannot impose a condition for obtaining a consent  from  the
landlord.  The ground for rejection does not appeal to me.

16.  It is to be noted that on expiry  of  the  original  lease  period  the
petitioner continues as a statutory tenant  or  tenant  holding  over.   The
Corporation cannot insist upon such a tenant for  production  of  a  written
consent from the landlord for the purpose of  issuing  of  the  licence.   A
statutory tenant can be evicted from the leased premises only in  accordance
with the various provisions contained in the  Kerala  Buildings  (Lease  and
Rent Control) Act 1965.  It appears that the Corporation is dancing  to  the
tunes of the landlord or has become a puppet in the hands  of  the  landlord
in insisting for a consent.  It is quite evident  and  clear  that  landlord
will never give consent.  The idea of the landlord is to see that the  trade
being conducted by the petitioner is stopped  forever  and  he  vacates  the
premises.  With such a wicked idea the landlord is attempting to  evict  the
petitioner not  in  accordance  with  the  provisions  of  law  but  through
indirect illegal means and unfortunately the Corporation has acted in a  way
actively aiding the said attempt.”

  The above view was upheld by the learned Single Judge of  the  High  Court
as follows :

“2.   It seems that a Rent Control  Petition  is  pending  before  the  Rent
Controller at Trivandrum for evicting the 2nd respondent and  therefore  the
finding of  the  Tribunal  is  justified.   Apart  from  that  there  is  no
provision which requires an existing tenant,  to  obtain  consent  from  the
landlord every time renewal application is filed.  This position is  covered
by the Division Bench judgment  of  this  Court  in  Marimuthu  v.  Director
General of Police (1999 (3) KLT 662).  That being the situation,  I  do  not
think that there is any illegality in the order passed by the Tribunal.”

5.    On further appeal by Respondent No.2 – Landlord,  the  Division  Bench
took a contrary view and held that on expiry of the  existing  licence,  the
tenant has to seek a fresh licence for which fresh consent of  the  landlord
was required.  It was observed :
“4.   Validity of the  earlier  licence  undisputedly  was  till  31.3.2008.
Later, renewal was sought only on 25.5.2009, that too to  the  President  of
the Panchayat.  This cannot be treated as a proper application for  renewal.
 Subsequently, on 10.8.2010  he  filed  a  fresh  application  for  licence,
therefore, neither letter dated 25.5.2009 nor  application  dated  10.8.2010
was a proper application for renewal of the earlier licence as  contemplated
under sub-section (5) of Section 492 of the Kerala Municipalities  Act.   If
the earlier licence comes to an end on 31.3.2008, in the absence  of  making
a renewal application within 30  days  before  expiry  of  validity  of  the
existing licence, the tenant cannot get the benefit of  renewal  of  licence
and it has to be only  a  fresh  licence.   Once  it  is  a  fresh  licence,
permission or consent of the landlord  is  required  as  indicated  in  sub-
section (3) of Section 492 of the Kerala Municipalities Act.”

6.      We have heard learned counsel for the parties.  Learned counsel  for
the appellant submits that the view taken by the Division Bench of the  High
Court is patently erroneous and  is  contrary  to  the  statutory  provision
referred to above.  The learned Single Judge has followed  the  judgment  of
the earlier Division Bench in  Marimuthu  &  Ors.  versus  D.G.P.  &  others
(1999 3 KLT 662).  The Division Bench failed to advert to the  earlier  said
judgment.  It is also pointed out that reference to clause  (5)  of  Section
492 in the judgment of the Division Bench appears to be mistaken.
7.    Learned counsel for the contesting respondent has supported  the  view
taken in the impugned judgment.
8.    After due consideration of the issues involved, we find merit  in  the
submission made  on  behalf  of  the  appellant.   The  statutory  provision
already quoted above shows that the requirement of consent  of  landlord  is
applicable only when a person intends to obtain  a  licence  for  the  first
time.  Renewal or subsequent application for obtaining licence on expiry  of
the period of the existing licence, during the currency of the  tenancy,  is
not applicable for obtaining licence.  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.
9.     In Marimuthu & Ors. (supra),  the Division Bench of  the  High  Court
observed :

“16.  A  statutory  tenant  under  the  Kerala  Buildings  (Lease  and  Rent
Control) Act can be evicted only as per the provisions of the said  Act,  on
the grounds enumerated therein.  Since  the  possession  of  the  tenant  is
lawful, the landlord is  not  entitled  to  withhold  his  consent  for  the
conduct of the business for which the premises were given on  rent.  In  the
instant case, we are satisfied that the landlord is  purposefully  and  with
malafide intention withholding consent inspite of the directions  from  this
court. Under such circumstances, the Corporation  also  cannot  insist  upon
production of written consent from the landlord for the purpose of  issuance
of licence for the conduct of business in  the  premises  in  question.  For
carrying on business in readymade dresses a licence issued under Sec.492  of
the Kerala Municipality Act is necessary. As on date, the petitioner is  not
having any licence to carry on such business. A person in occupation can  be
allowed to carry on a trade or  business  which  requires  a  licence,  only
after obtaining such licence. In view of the facts and circumstances of  the
case as above, we direct the Corporation of Thiruvananthapuram  to  consider
Ext.P7 application for licence without insisting upon the  production  of  a
written consent of the owner of the premises  and  pass  appropriate  orders
after giving an opportunity to the petitioners or  their  representative  or
their advocate, within two weeks from today. The petitioners are at  liberty
to  file  any  further  documents,  if  need  be,  before  the   Corporation
authorities. The Corporation shall pass a reasoned order after  hearing  the
necessary parties and communicate the same to  the  petitioners  within  two
weeks from today. We make it clear  that  till  such  time  the  petitioners
shall not conduct the textile business in the premises in  question.  Ext.P8
order of the Corporation of Thiruvananthapuram is set aside  and  Ext.P7  is
restored to file for fresh consideration as directed above.”

Thus, the view taken by the Tribunal and the learned  Single  Judge  is  the
correct understanding of the  import  of  Section  492  (3)  of  the  Kerala
Municipalities Act, 1994 (supra).  The Division Bench erred  in  interfering
with the said view.

Accordingly, we allow this appeal, set  aside  the  order  of  the  Division
Bench and restore the order of the  Tribunal  as  affirmed  by  the  learned
Single Judge.

                                                        ( V.  GOPALA GOWDA )

                                                       ( ADARSH KUMAR GOEL )
New Delhi;
July 05, 2016.

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