IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 8TH JULY 2011 / 17TH ASHADHA 1933 WA.No. 321 of 2007() -------------------- AGAINST THE JUDGEMENT IN OP.10066/2002 Dated 05/01/2007 ................... APPELLANT: -------------- P.M. JACOB, S/O. SRI. P.I. MARCOSE, PERUMACHERIL VEEDU, CHINGAVANAM, KOTTAYAM. BY ADV. MR. BECHU KURIAN THOMAS RESPONDENTS: --------------- 1. CAPT.J.G. JOSEPH, T.C.27/807, RAMAKRISHNA REDDIAR ROAD, (NEAR NEW THEATRE), THAMPANOOR, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. CORPORATION OF THIRUVANANTHAPURAM REPRESENTED BY SECRETARY, CORPORATION OF THIRUVANANTHAPURAKM, THIRUVANANTHAPURAM-695 033. R1 BY ADV. MR. B.RAGUNATHAN MR. V.V.MATHEW FOR R1 R2 GOVERNMENT PLEADER MR. BENNY GERVASIS R3 ADV. MR. N.NANDAKUMARA MENON,SC,TVM CORPN. FOR THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A. NO. 321 OF 2007 APPENDIX APPELLANT'S ANNEXURES : ANNEXURE A1 : TRUE COPY OF THE RECEIPT FOR PAYMENT OF ARREARS OF RENT DATED 13.07.2006 ANNEXURE A2 : TRUE COPY OF THE RECEIPTFOR PAYMENT OF ARREARS OF RENT DATED 26.07.2006. ANNEXURE A3 : TRUE COPY OF THE RECEIPT FOR PAYMENT OF ARREARS OF RENT DATED 16.01.2007. ANNEXURE A4 : TRUE COPY OF THE LICENCE ISSUE TO THE APPELLANT DATED 20.06.2006 FOR THE YEAR 2006 - 2007. ANNEXURE A5 : TRUE COPY OF THE PROFESSION TAX RECEIPT ISSUED BY THE CORPORATION DATED 01.09.2006 FIRST RESPONDENT'S ANNEXURES : ANNEXURE R1 (a) : TRUE COPY OF THE ORDER DATED 17.02.2004 IN C.R.P. NO. 1955 OF 1997 ANNEXURE R1 (b) : TRUE COPY OF THE ORDER DATED 01.05.2006 PASSED BY THE HON'BLE SUPREME COURT. ANNEXURE R1 (c) : TRUE COPY OF THE ORDER DATED 12.07.2010 PASSED BY THE HON'BLE SUPREME COURT IN SLPs (C) No. 12328 - 12329 OF 2004. ANNEXURE R1 (d) : TRUE COPY OF THE ORDER DATED 12.01.2011 PASSED BY THE HON'BLE SUPRME COURT IN R.P.s(C) NO. 2194 - 2195 / 2010. ANNEXURE R1 (e) : TRUE COPY OF THE OBJECTION DATED 14.03.2011 FILED BY THE APPELLANT. /TRUE COPY/ P.A. TO JUDGE J. CHELAMESWAR, C.J. & P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.A. No. 321 OF 2007 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 8th day of July, 2011 JUDGMENT Ramachandra Menon J. This appeal arises from the judgment dated 05.07.2007 in O.P. 10066 of 2002, whereby the prayer of the writ petitioner to have the unauthorised business run by the appellant (3rd respondent in the original petition) closed down by the local authorities has been granted. 2. The appellant is stated as a tenant of the building bearing No. 25/2525 of Vanchiyoor Village and in occupation for more than three decades. The landlord of the building (original petitioner) demanded the rent at the enhanced rent, which however was not acceded to by the tenant, under which circumstance, no consent was given by the landlord to have the licence renewed. As such, no licence was renewed by the Local Authority; despite which the appellant was running his business, which hence was stated as unauthorized and illegal in all respects. It was in the said circumstances, that the land lord approached this Court by filing O.P. with the following prayers. i, issue a writ of mandamus or other appropriate writ, direction or order to the respondents to close down the W.A No. 321 of 2007 2 business conducted in building No.25/2525 of the Corporation of Thiruvanathapuram belonging to the petitioner with immediate effect; ii. issue a writ of mandamus or other appropriate writ, direction or order to the 2nd respondent to realize the tax on building No. 25/2525 at the rate which prevailed before 1993; iii. grant such other orders which this Hon'ble Court may deem fit and proper in the circumstances of the case; and iv. award the costs of this petition to the petitioner. 3. The matter was pending before the learned Single for nearly 5 years. Still, no counter affidavit was filed by the appellant / tenant. Finally, after hearing both the sides, the original petition was allowed, granting the 1st prayer as sought for, with liberty to approach the appropriate authorities in respect of the 2nd relief, which forms the subject matter of challenge in this Appeal. 4. The learned counsel for the appellant submits that the necessity to have the consent by the landlord for the purpose of issuance of licence for running of the business had already come up for consideration of this Court in Marimuthu Vs. Director General of Police (1999 (3) KLT 662 ) and it has been held that no such consent is necessary. The learned counsel appearing for the first respondent submits, with reference to the W.A No. 321 of 2007 3 specific pleading raised in the Original Petition as to the nature of occupation of the petitioner, that the petitioner was running the business without any valid licence issued by the local authority. There is no case for the appellant that he was having the requisite licence to run the business at least as on the date of the judgment. As mentioned hereinbefore, it has been clearly pleaded in paragraph 8 and elsewhere in the Original Petition that the arrears of rent to be cleared by the appellant was nearly Rupees 12 lakhs and that the appellant was continuing to occupy the premises even without clearing the rent arrears. 5. The question whether the consent of the landlord is necessary or not, for having issued licence by the local authority stands answered by the Division Bench of this Court as per the decision cited supra. But, here the question is something different. Even though, the appellant may be justified in approaching the appropriate authority for renewal of the licence even without the consent of the landlord, the law declared by this Court as above is not a green card for the appellant to run the business without any licence. This is obvious from the observations made by the Division Bench of this Court in paragraph 14 and 17 of the said verdict, which categorically says that, a person in occupation can be allowed to carry on a trade or business, which requires a license, only after obtaining licence. W.A No. 321 of 2007 4 There is no case for the appellant, that in view of the law declared, he had approached the concerned local authority for renewing the licence, even without the consent of the landlord nor has he approached this Court by filing any writ petition for issuance of a writ of mandamus directing the local authorities to issue licence in this regard, before the proceedings were finalized by the learned Single Judge. The matter was pending before this Court for nearly '5 years', without filing any counter affidavit and without filing any such proceedings and it was accordingly, that the learned Judge passed the final verdict based on available materials on record. This Court does not find any ground to call for interference holding that the learned Judge has gone wrong anywhere. In the said circumstances, the Writ Appeal fails and it is dismissed accordingly. J. CHELAMESWAR, CHIEF JUSTICE P. R. RAMACHANDRA MENON, JUDGE kmd