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2024 Supreme(Online)(KER) 35811
HIGH COURT OF KERALA
MOHAMMED NIAS C.P., J
MAHEEN R. – Appellant
Versus
ADOOR MUNICIPALITY – Respondent
WP(C) 8991/2024
S.SREEKUMAR, D.KISHORE, MEERA GOPINATH, R.MURALEEKRISHNAN
A tenant's right to a trade licence is contingent upon the payment of rent; failure to pay rent negates the entitlement to business privileges.
Headnote:(A) Kerala Municipality Act, 1994 - Section 492(3) - Writ petition for issuance of trade licence - Tenant's right to run a lawful business cannot be denied solely due to landlord's withholding of consent, provided rent is duly paid - Tenant's failure to pay rent invalidates claim for trade licence. (Paras 2, 4, 8, 9)
(B) Tenancy Law - Valid tenancy implies landlord's authority for tenant's legitimate use of premises - Tenant's non-payment of rent negates entitlement to business privileges. (Paras 6, 8)
Facts of the case:
The petitioner, a tenant, filed a writ petition seeking a trade licence after the landlord objected due to unpaid rent. The petitioner had only made a partial payment of rent since the lease commencement.
Findings of Court:
The court found that the tenant's failure to pay rent invalidated the claim for a trade licence, emphasizing the necessity of rent payment for maintaining tenancy status.
Issues: The main issues were whether the tenant could obtain a trade licence without landlord consent and the implications of non-payment of rent on tenancy rights.
Ratio Decidendi: The court ruled that a tenant's right to a trade licence is contingent upon fulfilling rental obligations, and the landlord's refusal to consent was justified due to non-payment of rent.
Result: The writ petition fails and is dismissed.
| Table of Content |
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| 1. the learned counsel for the petitioner relies (Para 2) |
| 2. the municipality has filed a counter (Para 3) |
| 3. the 2 nd respondent landlord filed a counter (Para 4) |
| 4. after hearing both sides (Para 5) |
| 5. it is not in dispute that (Para 6) |
| 6. the learned counsel also relies (Para 7) |
| 7. it is true that the supreme court held (Para 8) |
| 8. it is trite that a writ of mandamus (Para 9) |
JUDGMENT
Petitioner is a building tenant under the 2 nd respondent as per Ext.P1 rent deed dated 01.07.2023 executed for 11 months. An amount of Rs.2,00,000/- was given as advance and the monthly rent payable was Rs.35,000/-. It is stated that the possession of the room was handed over to the petitioner on 01.07.2023 and a rent of 15 days from 01.07.2023 was exempted for enabling the petitioner to do the interior works. The petitioner had transferred an amount of Rs.17,500/- to the bank account of the wife of the second respondent on 07.08.2023. The petitioner submits that consent was given on 01.09.2023 by the landlord, Ext.P2. Ext.P3 is the application dated 13.09.2023 submitted by the petitioner before the 1 st respondent Municipality for a trade licence. The petitioner had submitted a representation annexing the consent of the landlord and sought for the issuance of the licence through Ext.P5. Through Ext.P6 the 1st respondent Municipality issued a letter dated 22.02.2024 to the petitioner stating that the landlord is objecting to the issue of licence, and the 1 st respondent has decided to take legal opinion. The writ petition is filed for a direction to the 1 st respondent Municipality to issue a trade licence to the petitioner pursuant to Ext.P3 licence application.
2. The learned counsel for the petitioner relies on the judgment of Sudhakaran v. Corporation of Trivandrum [2016 (3) KHC 803] for the proposition that the tenant cannot be deprived of running a lawful business merely because the landlord has withheld the consent.
3. The Municipality has filed a counter stating that the application for the licence was submitted without the consent of the owner of the building and the same was intimated to the petitioner vide Ext.P4, that the application can be considered only if the same is produced. It is also pointed out that the petitioner has filed O.S.No.319/2023 against the 2 nd respondent landlord against forceful eviction and an interim order was obtained. The Municipality had conducted a hearing wherein the landlord stated that the petitioner had not paid the rent and requested that the licence be granted only if the petitioner paid the arrears of rent.
4. The 2 nd respondent landlord filed a counter stating that the petitioner paid only an amount of Rs.17,500/- since the date of commencement of the lease. As on the date of filing the counter Rs.2,80,000/- was due as rent. It is submitted that the petitioner had also filed O.S.319/2023 before the Munsiff Court, Adoor seeking an injunction against forceful dispossession.
Another suit O.S. 9/2024 was filed before the Sub Court, Pathanamthitta for realising damages of Rs.16 lakhs along with an application for attachment before judgment. As the petitioner has not complied with the mandatory requirement under Section 492 (3) of the Kerala Municipality Act , 1994, the petitioner is not entitled to any relief. It is also stated that the judgment cited on behalf of the petitioner is not applicable as the petitioner is not legitimately using the tenanted premises as he has not paid any amount towards the rent due to the landlord.
5. After hearing both sides, this Court directed the petitioner to pay at least a portion of the rent arrears. But the same was not paid. There was a change of vakalath for the petitioner, and thereafter, the writ petition was dismissed for default. Later, the restoration application was allowed on 29.07.2024.
6. It is not in dispute that the petitioner is a building tenant. It is not in dispute that except for making a payment of RS.17,500/- on 07.08.2023, no amounts wer
