IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR THURSDAY, THE 18TH SEPTEMBER 2008 / 27TH BHADRA 1930 WP(C).No. 23358 of 2006(E) -------------------------------------- PETITIONERS: -------------------- 1. K.P/.NASSAR, MANAGING PARTNER, WINNER THE OVEN FRESH, AGED 38, S/O.PAREED, WINNER THE OVEN FRESH, STAR BUILDINGS, OPPO.SARITHA THEATRE, BANERJEE ROAD, ERNAKULAM. 2. WINNER THE OVEN FRESH, STAR BUILDINGS, OPPO.SARITHA THEATRE, BANERJEE ROAD, ERNAKULAM. REP. BY ITS MANAGING PARTNER K.P.NASSAR. BY ADV. SRI.M.L.SAJEEV SRI.M.N.SANJITH RESPONDENTS: ----------------------- 1. THE CORPORATION OF COCHIN, CORPORATION OFFICE, BOAT JETTY, ERNAKULAM, REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, BOAT JETTY, ERNAKULAM. 2. THE SECRETARY, CORPORATION OF COCHIN, CORPORATION OFFICE, BOAT JETTY, ERNAKULAM. 3. THE HEALTH OFFICER, CORPORATION OF COCHIN, CORPORATION OFFICE, BOAT JETTY, ERNAKULAM. 4. E.V.SALEENA, AGED ABOUT 50, W/O.B.H.MAMMY, BAVARAPARAMBIL HOUSE, A.K.G.VAYANASALA ROAD, CHAKKARAPPARAMBU, THAMMANAM, ERNAKULAM. 5. B.H.MAMMY, AGED ABOUT 65 YEARS, FATHERS NAME NOT KNOWN, BAVAPPARAMBIL HOUSE, A.K.G.VAYANASALA ROAD, CHAKKARAPPARAMBU, THAMMANAM, ERNAKULAM. ADV. SRI.S.RAMESH BABU,SC,COCHIN COPN FOR R1 TO R3 ADV. SRI.RAJESH NAIR FOR R.5 ADV. SRI.BOBBY MATHEW FOR R.5 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ K. BALAKRISHNAN NAIR, J. ---------------------------------------- W.P.(C) No. 23358 OF 2006 ---------------------------------------- Dated this the 18th day of September, 2008 J U D G M E N T ~~~~~~~~~~~ The petitioners are tenants of a building owned by the respondents 4 and 5. They have taken that building on lease arrangement on the basis of Ext.P1 rent deed. The petitioners applied for renewal of their licence for the financial year 2006- 2007 by submitting an application on 29.3.2006 which was followed by another application on 1.4.2006. The Secretary of the Cochin Corporation by Ext.P3 communication informed them that it is not possible to consider their application at present. The reason pointed out is a complaint filed by the 4th respondent stating that the building has been given on rent for conducting a bakery and not for running a restaurant. But, the 1st petitioner submitted Ext.P4 representation against Ext.P3. The 1st petitioner prayed for renewal of the licence. Soon thereafter, he was served with Ext.P5 notice directing to clear the vegetables etc. kept by the petitioner in the staircase of the building. The petitioner submitted Ext.P6 reply to the said notice which was followed by Ext.P7 and P8 lawyer notices. W.P.(C) No.23358/2006 2 While so, the 1st petitioner was again served with Ext.P9 show cause notice proposing to close down the shop, interalia, on the ground that for renewal of the licence, the petitioner has not produced the consent of the owner of the building. Aggrieved by the actions of the Corporation, this writ petition was filed seeking the following reliefs: “1. Issue a writ of certiorari calling for the records relating to Ext.9 and to quash the same. 2. Issue a writ of mandamus directing respondent Nos. 1 and 2 to consider petitioners' application to renew the license of the restaurant and to issue licence to the petitioners.” 2. According to the petitioners, the grounds taken in Ext.P9 for closing down the restaurant are not sustainable and not supported by any provisions of the Kerala Municipalities Act. The Corporation has filed a statement in which they support their impugned action. The relevant portion of the statement reads as follows: “3. It is submitted that the petitioner was granted with Ext.P2 licence for conducting a bakery in building No.41/4074 of Corporation of Cochin. On the expiry of the licence period an application has been submitted for the renewal of the licence for the period 2006-2007. The application is rejected on the ground that the renewal is against Section 492(2), (5) and (3) of the Kerala W.P.(C) No.23358/2006 3 Municipalities Act. As per Section 492(2) every licence issued by the Secretary shall specify the person to whom, the premises and respect of which and the trade of business or undertaking for which the licence is granted and for any change in person of the premises or the business and the trade or undertaking as fresh licence or permission shall be taken with or without payment of further fees as the Municipality may fix. As per Section 492(3) where any person intending to obtain a licence or permission for the first time and were the applicant is a person other than the owner of the premises in question, he shall along with the application produce a written consent of the owner of the premises and period of the licence shall not exceed the period, if any specified in the consent. 4. As per the agreement the building was given by the landlord for conduct the business in bakery and sweets instead of that now the petitioner is conducting a restaurant as well as the bakery item. Moreover, the conducting of the restaurant and cooking food make the place unhygienic and there by causing difficulties to the public. In the above circumstances, the Corporation rightly issued Ext.P9 notice for close down the business premises of the petitioner.” 3. Though respondents 4 and 5 have not filed any counter affidavit, the learned counsel appearing for the said respondents submitted that the petitioner has been granted lease to run a bakery in the building. Now it is used to run a restaurant. Therefore, the Corporation has rightly decided not to renew the licence. The consent of the landlord is mandatory for renewal of the licence on the facts of this case and in the light of W.P.(C) No.23358/2006 4 the various provisions contained in Section 492, it is submitted. The learned counsel also pointed out that the landlords have moved the Rent Control court and eviction of the petitioners has been ordered on the ground of arrears of rent. The said order of the Rent Control court has been upheld by the appellate authority as well as this Court, it is submitted. The execution proceedings are pending against the petitioners, it is pointed out. The learned counsel for the respondents 4 and 5 also pointed out that what is impugned in this writ petition is only a notice and therefore, it is unnecessary for this Court to interfere with the same. 4. Ext.P4 is a show cause notice. Therefore, the petitioners have to file their objections to it before the Corporation. But, their application for renewal has not been considered as evident from Ext.P3. Therefore, they have made the second prayer which is already quoted above, that is, to issue a writ of mandamus to consider their application for renewal of licence. Ext.P3 would show that their application is not being considered for change of user of the building pointed out by the W.P.(C) No.23358/2006 5 landlord. I think, going by the statutory provisions, an owner of a building is entitled to get licence from the Corporation to do any legally permitted business in it. It a fundamental right guaranteed under article 19(1)(g) of the Constitution of India. A person who is legally in possession of a building on the strength of a lease agreement is also entitled to get licence. The intention of the statutory provision contained in Section 492 concerning the consent is that a stranger who has nothing to do with a building should not be granted licence. Either he should be the owner or a person legally in possession of it. The tenant is entitled to use the building for his business without the permission of the landlord. If the user is contrary to the lease agreement, the same will give a cause of action to the landlord to proceed against the tenant and the Corporation cannot involve itself in that dispute between the landlord and tenant. So, the petitioner as long as he occupies the building as a tenant is entitled to do business and the Corporation is bound to grant him licence if he is otherwise eligible. In other words, the change of user pointed out by the landlord is not a ground to reject the licence applied for by him or a ground for closure of the shop. W.P.(C) No.23358/2006 6 5. In view of the above position, the petitioner may file his objections to Ext.P9 which contains the proposal to close down his business establishment. Since the term of the licence mentioned in Ext.P3 is already over, the petitioner may submit a fresh application for renewal of licence. In that event, the same shall be considered, in accordance with law, taking into account the observations made herein above. It is made clear that the judgment will not in any way affect the right of the landlord to evict the tenant in accordance with the orders under the Kerala Buildings Lease and Rent Control Act. When the application for grant of licence is taken up, pursuant to the direction of this Court, the petitioner and landlord shall be heard. The writ petition is disposed of as above. (K.BALAKRISHNAN NAIR, JUDGE) ps