Point of law: Municipalities – Licence - Corporation that petitioner has to produce consent letters of remaining co-owners of premises for purpose of considering application for licence is unsustainable in law

JUDGMENT :

The father of the petitioner owned a building consisting of a few shop rooms within the limits of the first respondent Corporation (the Corporation). On the death of the father, the said building devolved on the mother of the petitioner, the petitioner, two sisters of the petitioner and the third respondent, the brother of the petitioner. While so, the mother of the petitioner executed Ext.P3 licence agreement in favour of the petitioner in respect of one of the shop rooms in the building bearing door No.39/1579B. Ext.P3 licence agreement has been executed by the mother of the petitioner styling herself as the owner of the building. On the strength of Ext.P3, the petitioner is engaged in the trade of manufactured fireworks, Chinese crackers, sparklers etc., in the shop room covered by Ext.P3 licence agreement since 09.04.2013, after obtaining licence from the competent authority under the Explosives Rules, 2008. The mother of the petitioner died on 01.09.2013. The petitioner, however, has not obtained licence as provided for under Section 447 of the Kerala Municipality Act, 1994 (the Act). Later, on 23.07.2020, the competent authority of the Corporation called upon the petitioner to obtain licence as provided for under Section 447 of the Act for the trade undertaken by him in the shop room covered by Ext.P3. Ext.P6 is the notice issued by the Corporation to the petitioner in this regard. It is stated by the petitioner that though he approached the Corporation for licence on receipt of Ext.P6 notice, the application preferred by the petitioner in this regard viz, Ext.P9 has been returned by the Corporation, taking the stand that the same can be entertained only if it is accompanied by the consent letters of all the siblings of the petitioner who own the building along with the petitioner. It is stated that the petitioner had in fact produced along with Ext.P9 application, the consent letters of his sisters, and he could not produce the consent letter of his brother, the third respondent, who refused to give the consent letter sought by the Corporation. The case of the petitioner is that in terms of the provisions of the Act and the Rules made thereunder, consent letter could be insisted by the Corporation for licence only where the applicant is a person other than the owner of the premises. According to the petitioner, as he is one of the co-owners of the premises, he has to be treated as the owner of the premises and that the Corporation is, therefore, not justified in insisting production of the consent letters of other co-owners of the premises for the purpose of considering the application for licence preferred by the petitioner. The petitioner, therefore, seeks directions to the second respondent to accept Ext.P9 application and issue the licence sought for by him, without insisting production of consent letters of other co-owners including the third respondent.

2. Though notice was issued to the third respondent by special messenger, he has not chosen to appear in the matter.

3. Heard the learned counsel for the petitioner as also the learned Standing Counsel for the Corporation.

4. The learned counsel for the petitioner asserted the case set out in the writ petition. The learned Standing Counsel for the Corporation, however, pointed out that consent letters of the owners of the premises are mandatory for the purpose of considering the application for licence for the first time, and the same cannot be dispensed with.

5. The provision relied on by the learned Standing Counsel for the Corporation to justify the aforesaid stand is sub-section (3) of Section 492 of the Act. Sub-section (3) of Section 492 of the Act reads thus:

“(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 shal