SIVADASAN Vs. ALEXANDER

JUDGEMENT

(1.) THIS Writ Appeal has been filed by the appellant who was respondent No. 3 in the Writ Petition challenging the judgment dated 20.06.2014 passed by the learned Single Judge in W.P.(C) No. 31325 of 2011 by which judgment the learned Single Judge allowed the Writ Petition and quashed the order passed by the Tribunal for Local Self Government Institutions. Brief facts giving rise to the Writ Appeal are: The appellant who shall hereinafter be referred to as the tenant had obtained tenancy of a shop room which was owned by respondent No. 1, P.C. Alexander, who shall hereinafter be referred to as the landlord for conducting fruit/vegetable business. Tenant had also obtained licence from the Municipality as per the Kerala Municipalities Act, 1994 (for short, "Act, 1994"). The tenant on account of loss in the business of fruit/vegetable decided to conduct the business of fast -food restaurant in the said shop room. An application was submitted by the tenant before the Municipality on 13.01.2011 for the grant of licence for running a restaurant. The Municipality issued a notice dated 08.02.2011 directing the tenant to comply with certain requirements. The notice however, mentioned that the application be considered only upon compliance of the three conditions mentioned in the notice. The notice dated 08.02.2011 was received by the tenant on 14.02.2014. The tenant on 16.02.2011 filed an appeal before the Municipal Council which was dismissed by the Municipal Council. The tenant challenging the order of the Municipal Council filed a revision before the Tribunal for Local Self Government Institutions (for short, "the Tribunal"). The Tribunal set aside the notice dated 08.02.2011 as well as the order of the Municipal Council dismissing the appeal. The Tribunal directed the Secretary to consider the application for licence dated 13.01.2011. Landlord filed O.P.(C) No. 2573 of 2011 whereas O.P.(C) No. 3047 of 2011 was filed by the Municipality against the order passed by the Tribunal. This Court vide its judgment dated 28.09.2011 set aside the order of the Tribunal and directed the Tribunal to take a fresh decision in the light of the observations made in the judgment. After the order of this Court, the Tribunal has taken a decision dated 10.11.2011 by which the revision filed by the tenant has been allowed and the order of the Municipal Council as well as the notice issued by the Municipality dated 08.02.2011 have been set aside. The Tribunal held that the tenant has obtained a deemed licence for conducting fast -food restaurant and the Secretary was directed to issue proper licence. Aggrieved by the order of the Tribunal, W.P.(C) No. 31325 of 2011 has been filed by the landlord which was allowed by the learned Single Judge vide his judgment dated 20.06.2014 against which judgment this Writ Appeal has been filed.

(2.) WE have heard Shri N.N. Sugunapalan, learned Senior Advocate for the appellant and Shri P.B. Sahasranaman for respondent No. 1. Learned counsel Shri C. Rasheed has appeared for the Municipality.

(3.) LEARNED counsel for the landlord submitted that the learned Single Judge has rightly held that the Municipality had communicated the reply dated 08.02.2011 within 30 days since 13.02.2011 the 30th day being Sunday, as per S. 9 of Act, 1125, the said day had to be excluded and service on next working day, i.e., 14.2.2011 was within time. It is contended that the Tribunal committed an error in holding that the tenant was to be deemed to have obtained a deemed licence under Section 447(6) of Act, 1994. It is submitted that the principle laid down in Section 10 of the General Clauses Act, 1897 (for short, "Act, 1897") are fully attracted. It is further submitted that under Section 492(3) of Act, 1994 the tenant was obliged to obtain consent from the landlord since he had applied for a licence for running fast -food restaurant which was a different business from which he was permitted to carry on earlier, i.e., fruit/veg business. Under Section 492(3) of Act, 1994, consent of the landlord is required whenever there is change of business by an existing tenant. Learned counsel for the parties have also referred to various judgments of this Court and the Apex Court which shall be referred to while considering the submissions in detail.