( 1 ) THIS is a writ petition by A. Prabhakar under Art. 226 of the Constn, calling in question the memo dt. 8-12-1975 of the Respt-1, the Corporation of the City of Bangalore, directing the petitioner to get the consent of the landlord and memo dt. 4-2-76 of the said Corporation dismissing the application of the petitioner for a licence for running a hotel called by the name "new Mysore Cafe" at Kempegowda Road, Bangalore. The case of the petitioner is, that his father was the partner in the business with one late k. Gurursjachar, owner of building No. 9/12, Kempegowda Road, and the partnership agreement was entered into on 1-4-1961. Even prior to 1961, the hotel was being run in the premises. As per terms of the partnership, the licence for running the hotel was obtained in the name of late Gururaiachur, and the same continued even after the partnership. The owner of the building K. Gururajachar died on 9-2-1969 leaving behind, his two widows (1) Smt. Bhoomiamma and (2) Smt. Sundaramma. According to the petitioner, the partnership was not wound up and no accounts were taken, and the petitioner continued to do the hotel business. Subsequently, the two widows of the late K. Gururajachar, however, executed a lease deed in favour of the father of the petitioner on 7-5-1969. The petitioner's father died on 2-2-1973 and a further lease deed in favour of the petitioner was executed by the two widows on 3-9-1973. As per terms under the lease deed, the licence was being granted in the name of Smt. Bhoomiamma and the last licence expired en 31-3-1976. It is alleged that the two widows of late Gururajachar sold the premises to the Respondent-3 who made an application to the Corporation that the licence should not be Issued in the name of the petitioner. Acting on that representation, the memo dt. 4-2-1976 was as issued against the petitioner to stop running the hotel, as according to Respondent-1, the Corporation, it was being run 'unauthorisedly on sublet basis' and moreover, there was a representation from Smt. Bhoomiamma that the renewal should not be granted. In fact, on 8-12-1975, the corporation issued a memo to the petitioner that the consent of the owner of the building was required to be obtained. In fact, on 8-12-1975, the corporation issued a memo to the petitioner that the consent of the owner of the building was required to be obtained. According to the petitioner, there is no provision in the City of Bangalore Corporation Act, 1949 and its bye-laws, for getting the consent of the owner before a licence could be issued. The petitioner contends that he is in lawful possession of the building and the very act of the Corporation is without jurisdiction. According to the petitioner, the partnership even now continues and as such, it was only a private arrangement that the licence was taken in the name of Smt. Bhoomiamma. On these grounds, the petitioner seeks for the quashing of the two memos dt. 8-12-75 and 4-2-76 (Exts. F and D) issued by the respondents. The petitioner prays for a writ of Certiorari as well as a writ of mandamus directing the first respondent to consider the application of the petitioner for grant of a licence. ( 2 ) THE case set up by the two respondents, who are the Corporation of the City of Bangalore, and the Health Officer of that Corporation, is, that the petitioner was running a hotel contrary to bye-law 35 (3) (b) and a partnership of the petitioner with Srnt. Bhoomiamma is denied. In fact, the petitioner is estopped from claiming that partnership. Under bye-law 36 (2) (1) (a), the Commissioner had prescribed a form for licence and the petitioner applied in that very form which enjoined him to submit the landlord's consent, which he could not do. As such, under bye-law 36 (3), (1) (b) the petitioner was not considered a suitable person to be in-charge of the building as well as of the business. On that ground, the Corporation had the jurisdiction to reject the application of the petitioner for grant of a licence. In fact, the petitioner is not in lawful posssession, and the necessary and mandatory provision of bye-law has not been observed. The respondents further contend that the petitioner has not even challenged the bye-laws 35 and 36. It is further contended by the Corporation that either the petitioner is a tenant by holding over or a statutory tenant and as such cannot be considered to be in lawful possession. The respondents further contend that the petitioner has not even challenged the bye-laws 35 and 36. It is further contended by the Corporation that either the petitioner is a tenant by holding over or a statutory tenant and as such cannot be considered to be in lawful possession. As to the dispute regarding partnership, the respondents contend that it would be a disputed question of fact which cannot be decided in a writ petition. The corporation could not encourage illegal and forcible occupation by trespassers and from that point of view as well, the petitioners could not be stated to be in lawful possession of the building. It is further contended that the two widows were necessary parties to the petition. ( 3 ) IN his rejoinder affidavit, the petitioner contended that he is running the hotel business from 16 years and that only bye-law 35 was relevant and no complience could be asked for under bye-law 36. In fact, the corporation could not investigate that the petitioner was in lawful possession as his status as a tenant can only be adjudicated upon by a Civil court. Besides, the petitioner, upon the own plea of the Corporation being a tenant by holding over cannot be stated to be in unlawful possession ( 4 ) DURING the pendency of the writ petition at the initial stage, an interim order was made by this Court, that licence be issued in the name of the petitioner for the period upto 31-3-76. Thereafter, for the subsequent period, it is stated that the petitioner has filed another writ petition. An argument is founded on this that the present writ petition has become infructuous as the period for which it related is already expired. At first, the Respondent-3 was arrayed as a party, because the premises were sold in his favour, but as a result of the appeal filed against the order making them a party, a stay order was issued, staying the operation of that order by the Court making Respondent-3 a party to the petition. This has given rise to the controversy, as to whether Sri G. B. Raikar, the learned counsel for Respondent-3 could at all argue the petition. It is abundantly clear that in view of the stay order granted by the Appellate Court, the Respondent-3 could not be heard as a party to the petition. Thereafter, mr. This has given rise to the controversy, as to whether Sri G. B. Raikar, the learned counsel for Respondent-3 could at all argue the petition. It is abundantly clear that in view of the stay order granted by the Appellate Court, the Respondent-3 could not be heard as a party to the petition. Thereafter, mr. Raikar the learned Counsel submitted that he could be treated as an intervener to assist the Court in arriving at a correct decision. Accordingly, permission was granted to Sri Raikar and he placed the view point of the respondents before the Court. ( 5 ) IT is uncontroverted in the present petition that the licence was formerly granted by the Corporation in favour of K. Gururajachar, the previous owner of the building. Thereafter, a similar license was granted in favour of Smt. Bhoomiamma, the widow of K. Gururajachar. It is no doubt correct that formerly a partnership agreement was executed in 1961 between the petitioner's father and K. Gururajachar. Thereafter, lease deeds were executed either in favour of the petitioner's father or in favour of the petitioner by the two widows of K. Gururajachar. In Cl (9) of the lease deed which existed in favour of the petitioner, it was specifically mentioned that the business licence was to continue in the name of the lessors. It is also undisputed that the father of the petitioner and after the death of his father, the petitioner himself, have carried on the business of hotel in these premises from the last over Hi years. After the death of K. Gururajachar, his two widows have admittedly sold the premises to a third party. The memo, Ext. F, dt. 8-12-75 was issued by the Corporation and the licence was refused, as the petitioner failed to get the landlord's consent for the licence. The second memo dated 4-2-76 Ext. D, is the order of the Corporation not to grant the licence as the petitioner was stated to be running the hotel 'unauthorisedly on sub-let basis' contrary to the bye-laws, and further Smt. Bhoomiamma had given a representation not to renew the licence in his name. The petitioner had sent a detailed reply on 11-2-76 to the decision of the Corporation dated 4-2-76. and thereafter it seems he filed the present petition. The petitioner had sent a detailed reply on 11-2-76 to the decision of the Corporation dated 4-2-76. and thereafter it seems he filed the present petition. ( 6 ) THE foremost contention of the petitioner has been that the City of bangalore Municipal Corporation Act, 1949 and its bye-laws never provided for a condition precedent, for issuing a licence, that, a landlord's consent has to be obtained. In that connection, he further contends that Rule 35 and not Rule 38 will be applicable. According to the petitioner, bye-law 35 prescribed a form for getting a licence issued and in that form there was no column for submitting the landlord's consent. Under S. 286 of the City of Bangalore Municipal Corporation Act, 1949, a lodging house or eating house, the present premises are admittedly used for both purposes, cannot be kept otherwise than in conformity with the terms of the licence granted by the Commr. If the Corpn finds that the lodging house or eating house is being kept otherwise than in conformity with the terms of a licence, it has decidedly the power to close that lodging house or eating house. That aspect necessarily follows from sub-sec (1) of S. 286. Sub-S. (2) of that section may not be applicable because it applies to cancellation or suspension of a licence for the premises which are not in conformity with the conditions of such licence. Therefore, under S. 236 the terms mentioned in the licence will be pertinent and the petitioner has to satisfy those terms. Under S. 367, the Corporation has the power to make bye-laws not inconsistent with the Act and under that power, bye-laws 35 and 36 were made. These bye-laws in fact, lay down the terms of the licence and even prescribe for the application to be submitted for a licence. Therefore, compliance has to be made by the petitioner both under S. 286 and under the bye-laws made under S. 367. The argument that bye-law 35 alone shall be pertinent appears to be devoid of any merit. The present premises are meant both for consumption of food or drink as well as for 'repose' and on that ground both bye-laws 35 and 36 will be applicable. The argument that bye-law 35 alone shall be pertinent appears to be devoid of any merit. The present premises are meant both for consumption of food or drink as well as for 'repose' and on that ground both bye-laws 35 and 36 will be applicable. To say that the form prescribed under bye-law 35 is in any manner conflicting with the form prescribed by the Commissioner under bye-law 36 (2) (1) (a) will not be correct. There is no inconsistency between the form in Schedule of bye-law 35 and the form prescribed by the Commissioner under bye-law 36 (2) (1) and it can only be stated that the latter is more elaborate than the former. Therefore, when both bye-laws 35 and 36 are applicable, a harmonious construction has got to be given for the requirements to be observed under the forms prescribed for a licence. In bye-law 36, the Commissioner prescribed the form and there is a column indicating the documents which are required to be submitted and the landlord's consent is one of such documents for initial grant of a licence. However, for renewal of a licence this requirement is not there. The petitioner himself applied under this very form and it is too late in the day to argue that he applied on an incomplete form or that he could not have complied with the terms laid down there. Under bye-law 36 (3) (1) (b) the Commissioner could refuse the grant of the licence if in his opinion, the applicant was not a suitable person. Mr. Raikar, the learned Counsel who previously represented Respondent-3, rightly contended, that the stage for exercise of that power under Rule 3 of bye-law had not reached and the Corporation proceeded to reject the grant merely because the consent of the landlord was not filed along with the form of application. It is one thing to say that the form of application prescribed for a specific document, namely, the consent of the landlord, but it is quite another thing to contend that the Corporation could reject the grant of a licence, as it could even then grant it, without such consent of the landlord. At any rate, the discretion is left with the Commissioner and if in his opinion, in a particular case even without landlord's consent the licence can be granted, he is at liberty to do so. At any rate, the discretion is left with the Commissioner and if in his opinion, in a particular case even without landlord's consent the licence can be granted, he is at liberty to do so. It is nowhere indicated in bye-law 36 (3) (1) (b) as to what should prevail with the Commissioner for considering an applicant suitable or unsuitable for a licence. The learned Counsel for the Corporation as well as Mr. Raikar, contended, that there may be a case, where the applicant is a trespasser and perhaps in that contingency the Commissioner would be within his legal rights to refuse the licence. Because, in that case, the Commissioner would be encouraging illegal squatters on the premises leading to embarrasing situations with occasional bickerings between the landlord and the tenant to the discomfort of the lodgers. One of the essential duties of the Corporation is, to keep up the public interest and perhaps in such a case of extreme nature, the Corporation may be justified to refuse the licence. But there may be a case where a bonafide dispute exists between the landlord and the tenant and if the Corporation refuses the licence in such a case an impression may be created that the Corporation is siding with the landlord, then in that case perhaps the Commissioner may prefer not to refuse the licence as he would then be blamed for prefering one party over the other. Between these two extreme types of cases, there are a variety of other cases in which the Commissioner has to exercise his judicial discretion. Sri raikar rightly argued that the Commissioner is yet to consider the facts and circumstances arising in the present dispute and he should be left to decide in his own discretion. ( 7 ) AS regards the lawful possession, the very contention of the Corporation has been that the petitioner would even be a tenant by holding over. If that is so, he could not be considered to be in unlawful possession. Moreover, it would perhaps be open to. a Civil Court to decide as to what are the legal rights of the petitioner in the premises. It is immaterial that the petitioner has not challenged any of the bye-laws. In fact, he very much adheres to them and both bye-laws 35 and 36 are relevant to the matter in issue. Moreover, it would perhaps be open to. a Civil Court to decide as to what are the legal rights of the petitioner in the premises. It is immaterial that the petitioner has not challenged any of the bye-laws. In fact, he very much adheres to them and both bye-laws 35 and 36 are relevant to the matter in issue. As to the partnership created by the petitioner, there is a serious dispute between the parties. It would be entirely a disputed question of fact which cannot be decided in a writ petition. If the petitioner is a tenant and he could claim a bonafide tenancy right, he could make out case before the Commissioner and it is for him to decide as to whether he would be a proper person to grant the licence. The Corporation has rejected the application of the petitioner simply on the ground that the landlord's consent was not available. It is manifest the decision of the corporation is not a speaking order and the suitability of the petitioner is not yet decided by the Commissioner. The learned counsel for the Corporation relied on M. C. Chockalingam v. Manickavasagam, AIR. 1964 SC. 104. That was a case under the Madras Cinema (Regulation) Rules (1957) and under its rule 13 it was provided that the person should be in "lawful possession". In that context, the learned Judges held that litigious possession will not be lawful and that the relationship of landlord and the tenant has got to be based on some positive and lawful title recognised under a statute. With respect to their Lordships, the ratio of that case will not be applicable. In the present case, the expression 'lawful possession' or any other similar expression is not used in bye-law 36 (2) and the discretion is left with the commissioner keeping regard to public interest, to allow or not to allow the licence even where a dispute exists between the landlord and the tenant and confilicting rights are claimed. The learned Counsel submitted that there is an estoppel against the petitioner for claiming partnership rights. I do not think any such controversy can at all be availed of in the present petition. The two widows may not be held to be necessary or proper parties as the dispute exists between the petitioner and the Corporation. The learned Counsel submitted that there is an estoppel against the petitioner for claiming partnership rights. I do not think any such controversy can at all be availed of in the present petition. The two widows may not be held to be necessary or proper parties as the dispute exists between the petitioner and the Corporation. ( 8 ) SRI Raikar, the learned Counsel intervening in the argument contended that unless a proper petition was presented and the Corporation refused to consider it, the case for mandamus. is not made out. It is a firm and established rule of law, and the learned counsel is correct when he submitted, that in order to obtain a writ of mandamus, it is necessary for the petitioner first to establish that a legal duty is cast upon the respondents to do or forbear from doing a particular thing in the discharge of a public duty and secondly, to say that in spite of a request made in that behalf, the respondents are not discharging or refraining from discharging the statutory duty cast upon them. In the Instant case, the petitioner made an application and requested the Corporation to grant the licence. Instead of holding an enquiry as to whether the petitioner was a suitable person, the Corporation adopted a short circuit method of refusing the grant merely because the document showing the consent of the landlord was not produced. Therefore, the application of the petitioner was not properly considered. In the writ petition, a specific relief is claimed for consideration by the Corporation of the application submitted by the petitioner. In my opinion, to that extent, the relief can be granted. It is then contended that the period had already expired by 31-3-76 and as such, the present petition became infructuous. For this again reference has to be made to relief No. (ii) inasmuch as the petitioner wants his application to be considered in accordance with law. The two memos dated 8-12-75 (Ext. F) and memo dated 4-2-76 (Ext. D) are decidedly incorrect and have got to be quashed. ( 9 ) THE petition is therefore allowed and the memo dated 8-12-75 (Ext. F) and memo dated 4-2-76 (Ext. The two memos dated 8-12-75 (Ext. F) and memo dated 4-2-76 (Ext. D) are decidedly incorrect and have got to be quashed. ( 9 ) THE petition is therefore allowed and the memo dated 8-12-75 (Ext. F) and memo dated 4-2-76 (Ext. D) are quashed, and the Respondent No. 1 is directed to consider the application already submitted by the petitioner in accordance with law and the bye-laws of the Corporation which are applicable on the subject. The petitioner will be at liberty to submit fresh particulars to the respondent and similarly, the latter will also call for further particulars from him. In the special, circumstances, no order is made as to costs. --- *** --- .