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2020 DIGILAW 1299 (MAD)

Gowshinisha v. Corporation of Chennai

2020-08-18

N.ANAND VENKATESH

body2020
ORDER : N. Anand Venkatesh, J. 1. This writ petition has been filed challenging the proceedings of the 2nd respondent dated 06.12.2019 and for a consequential direction to respondents 1 and 2 to renew the license of the petitioner, who was running a fast food eatery in the subject premises. 2. The petitioner is a tenant under the 3rd respondent. It is seen from records that the petitioner was issued license by the 1st respondent in the year 2016 for running a Fast Food business. This license came to an end on 31.03.2017. There was a Landlord-tenant dispute between the petitioner and the husband of the 3rd respondent. The petitioner filed a suit against the husband of the 3rd respondent seeking for a permanent injunction not to evict her unless and otherwise by due process of law. The suit was dismissed and later, by judgment and decree made in A.S. No. 48 of 2016 dated 24.10.2016, the Appeal was allowed and the suit was decreed as prayed for. 3. The 3rd respondent initiated Rent' Control proceedings against the petitioner and sought for eviction of the petitioner. The proceedings are pending in RCOP No. 1327 of 2016 before the XII Court of Small Causes, Chennai. 4. The license issued to the petitioner had expired and hence, the petitioner made an application to the respondents 1 and 2 to renew the license. The request made by the petitioner was rejected by the 2nd respondent by proceedings dated 07.11.2018. The said rejection order became a subject matter of challenge before this Court in WP No. 30763 of 2018. The said writ petition was disposed of by this Court by an order dated 09.01.2019. The relevant portion in the order is extracted hereunder:- 6. It is an admitted fact that the petitioner is the tenant under the third respondent. Now, an eviction proceedings under the Tamilnadu Lease and Rent Control Act, is pending before the Rent Control Court in R.C.O.P. No. 1327 of 2016. It is also admitted that the said eviction petition has been filed on the ground of demolition and reconstruction. It is an admitted fact that the petitioner is the tenant under the third respondent. Now, an eviction proceedings under the Tamilnadu Lease and Rent Control Act, is pending before the Rent Control Court in R.C.O.P. No. 1327 of 2016. It is also admitted that the said eviction petition has been filed on the ground of demolition and reconstruction. When the eviction petition, filed by the landlord, on the ground that the building is in dilapidated condition and it requires demolition, is pending, now the second respondent cannot come to a conclusion without any material whatsoever that the building is in dilapidated condition and directed the petitioner to vacate the premises, and he has no jurisdiction to pass such order. In such circumstances, the impugned order passed by the second respondent is liable to be set aside. 5. The petitioner, thereafter, again made a representation before the 2nd respondent. The 2nd respondent by letter dated 06.12.2019 rejected the request made by the petitioner on the ground that the landlord has given an objection for renewal of the license. Yet another reason given by the 2nd respondent was that the building is in a dilapidated condition and the landlord has requested for demolition of the building and for putting up a new construction. Aggrieved by the letter of the 2nd respondent, the present writ petition has been filed before this Court. 6. The learned counsel for the petitioner submitted that the eviction petition filed by the 3rd respondent is pending till date. That apart, the 3rd respondent will never issue a No objection certificate, since there is already a dispute between the petitioner and the 3rd respondent. Therefore, the learned counsel submitted that the 2nd respondent ought to have independently considered the application submitted by the petitioner seeking for renewal of the license. The learned counsel in support of his submission relied upon the judgment of the Hon'ble Supreme Court made in Sudhakaran v. Corporation of Trivandrum in Civil Appeal No. 5435 of 2016 dated 05.07.2016. The learned counsel specifically relied upon Paragraph Nos. 8 and 9 of the above judgement and the same are extracted hereunder. 8. After due consideration of the issues involved, we find merit in the submission made on behalf of the appellant. The learned counsel specifically relied upon Paragraph Nos. 8 and 9 of the above judgement and the same are extracted hereunder. 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 and Others (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 mala fide intention withholding consent in spite 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 ready-made 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. 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. 7. Per contra, Mrs. Karthiga Ashok, learned Standing Counsel appearing on behalf of the respondents 1 and 2 submitted that the building is in a dilapidated condition and the landlord has already applied for demolition and reconstruction of the building. The learned counsel further submitted that without a No objection certificate given by the landlord, the Corporation cannot renew the license and this is a precondition as provided in the regulations governing the issuance of license. 8. The 3rd respondent has filed a counter affidavit in this writ petition. The specific stand taken by the 3rd respondent is that the petitioner originally took the property for lease to run a cycle spare-parts repair shop and without the consent of the 3rd respondent, she changed the business to fast food. Therefore, the 3rd respondent can never given a consent for running a fast food business in the property. The 3rd respondent has therefore sought for dismissal of the writ petition. 9. This Court has carefully considered the submissions made on either side and the materials available on record. 10. There is no dispute with regard to the fact that the petitioner and the 3rd respondent shared the relationship of a tenant and landlord. The 3rd respondent has therefore sought for dismissal of the writ petition. 9. This Court has carefully considered the submissions made on either side and the materials available on record. 10. There is no dispute with regard to the fact that the petitioner and the 3rd respondent shared the relationship of a tenant and landlord. It is also not in dispute that the eviction petition filed by the 3rd respondent against the petitioner is pending before the Rent Control Court. It is further not in dispute that the 2nd respondent initially granted a license to the petitioner to run Fast food business in the subject premises and it was in force till 31.03.2017. It is brought to the notice of this Court that the premises has now been sealed, since the petitioner, was running the business without license. 11. The 2nd respondent has assigned two reasons for rejecting the request made by the petitioner. The 1st reason is that the landlord has given an objection for the renewal of license. The 2nd reason is that the premises is in a dilapidated condition and the landlord has already submitted an application for demolition and reconstruction of the property. 12. Insofar as the 1st reason assigned by the 2nd respondent is concerned, once there is a strain in the relationship between the landlord and tenant, no landlord is going to give a consent for renewal of license. In such circumstances, the Corporation should not insist upon production of written consent from the landlord for the purpose of renewal of license to conduct the business. Such a condition will become impossible of performance and in a way, it will also indirectly result in the tenant vacating the property. Therefore, in the considered view of this Court, the 2nd respondent ought to have enquired, and after satisfying himself that there is a landlord-tenant dispute, should have proceeded further to renew the license, if the petitioner has satisfied all the other requirements. 13. Insofar as the 2nd reason assigned by the 2nd respondent is concerned, the same cannot be a ground to reject the application submitted by the petitioner. The eviction proceedings itself has been filed on the ground of demolition and reconstruction and the Rent Controller is yet to determine the ground raised by the 3rd respondent. 13. Insofar as the 2nd reason assigned by the 2nd respondent is concerned, the same cannot be a ground to reject the application submitted by the petitioner. The eviction proceedings itself has been filed on the ground of demolition and reconstruction and the Rent Controller is yet to determine the ground raised by the 3rd respondent. The prerequisite for filing such a petition is that, the landlord should have applied for an approval and he has to establish before the Court that they are prepared to demolish and reconstruct the property immediately after the orders are passed by the Court. Therefore, mere application seeking for approval cannot be a ground to reject the application submitted by the petitioner seeking for renewal of license. 14. In view of the above discussion, this Court has no hesitation to interfere with the impugned proceedings of the 2nd respondent dated 06.12.2019 and accordingly, the same is quashed. The petitioner ought not to have earned on with the business without a license and therefore, no fault can be found in the action taken by the 2nd respondent in sealing the premises. 15. The petitioner is directed to submit a fresh application to the 2nd respondent. The 2nd respondent shall consider the same without insisting for the No objection certificate from the 3rd respondent and if the petitioner satisfies all the other requirements, appropriate orders shall be passed by the 2nd respondent renewing the license. This process shall be completed within a period of four weeks from the date of receipt of the application from the petitioner. This writ petition is allowed accordingly. Consequently, the connected miscellaneous petitions are closed. The observations made in this order will not have any bearing in the pending RCOP proceedings.