Allowed

P.N.Sivadasan v. P.C.Alexander

Kerala HC1 Oct 2014WA/1217/2014

Case brief

AI extract

What is this about?

The bench held that communication of an order to an applicant is not an act required to be done in a court or office; thus the benefit of Section 9 of the Kerala Interpretation of General Clauses Act does not apply to pharmaceutical dealers. Therefore, the tenant was deemed to have obtained the licence.

What did the court decide?

The writ appeal was allowed; the judgment of the learned Single Judge allowing the writ petition was set aside, and the writ petition was dismissed.

P.N.Sivadasan Vs P.C.Alexander — Landlord and Tenant | Kerala HC (2014)

¶1

“C.R”

¶2

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶3

PRESENT:

¶4

THE HONOURABLE THE AG.CHIEF JUSTICE MR.ASHOK BHUSHAN &

¶5

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

¶6

WEDNESDAY, THE 1ST DAY OF OCTOBER 2014/9TH ASWINA, 1936

¶7

WA.NO. 1217 OF 2014 () IN WP(C).31325/2011

¶8

JUDGMENT IN WP(C) 31325 OF 2011 OF HIGH COURT OF KERALA DATED 20-06-2014

¶9

APPELLANT(S)/3RD RESPONDENT :

¶10

P.N.SIVADASAN

¶11

S/O. NANU, DIVYADAS BHAVAN, ARUNOOTTIMANGALAM MURI THAZHAKKARA VILLAGE, MAVELIKKARA-690 102.

¶12

BY SENIOR ADVOCATE SHRI N.N.SUGUNAPALAN (SR.) BY ADVOCATE SHRI S.SUJIN

¶13

RESPONDENTS(S)/PETITIONER/RESPONDENTS/RESPONDENTS 1 & 2:

¶14

1. P.C.ALEXANDER

¶15

S/O. CHANDRA PILLAI, PALAMOOTTIL KOLLASSERIL HOUSE NADAKKAVU, MAVELIKKARA-690 101.

¶16

2. THE MAVELIKKARA MUNICIPALITY REPRESENTED BY ITS SECRETARY, MAVELIKKARA-690 101.

¶17

3. MAVELIKKARA MUNICIPAL COUNCIL REPRESENTED BY ITS CHAIRMAN, MAVELIKKARA-690 101.

¶18

BY ADVOCATE SHRI P.B.SAHASRANAMAN R1 BY ADVOCATE SHRI RASHEED.C, SC, MAVELIKKARA MUNICIPALITY

¶19

THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01.10.2014 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶20

'C.R'

¶21

ASHOK BHUSHAN, Ag. C.J. and

¶22

A.M. SHAFFIQUE, J.

¶23

==================================== W.A. No.1217 of 2014

¶24

==================================== Dated this the 1^st day of October, 2014

¶25

J U D G M E N T

¶26

Ashok Bhushan, Ag. C.J.

¶27

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.

¶28

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

¶29

W.A. No.1217 of 2014

¶30

-: 2 :-

¶31

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 fastfood 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,

¶32

W.A. No.1217 of 2014

¶33

-: 3 :-

¶34

“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,

¶35

W.A. No.1217 of 2014

¶36

-: 4 :-

¶37

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.

¶38

We have heard Shri N.N.Sugunapalan, learned

¶39

Senior Advocate for the appellant and Shri P.B.Sahasranaman for respondent No.1. Learned counsel Shri Rasheed has appeared for the Municipality.

¶40

Learned counsel for the tenant in support of the appeal raised the following submissions: (i) The tenant having submitted application for grant of licence on 13.01.2011 to the Municipality and the Municipality having not communicated its decision within 30 days, the tenant shall be deemed to have granted licence within the meaning of Section 447(6) of Act, 1994 and the tenant could not have been obstructed running of fast-food business in the shop room. (ii) Learned Single Judge has erred in holding that the Municipality is entitled to rely on Section 9 of the Kerala Interpretation

¶41

W.A. No.1217 of 2014

¶42

-: 5 :-

¶43

of General Clauses Act, 1125 (for short, “Act, 1125) since in the present case, the Municipality cannot taken benefit of Sec.9 of Act, 1125 which was not applicable to the facts of the case

¶44

since the act or proceeding was not required to be taken in the office of the Municipality. (iii) The tenant was not required to have submitted a fresh consent of the landlord as the tenant was not seeking licence for the first time. The tenant had already been granted licence for conducting business in the shop room and there was no requirement of giving a fresh consent by the landlord. Provisions of Sec.492(3) of the Municipality Act are applicable only when the licence is applied from the Municipality for the first time.

¶45

Learned counsel for the landlord submitted

¶46

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 30^th day being Sunday, as per Sec.9 of Act, 1125, the said

¶47

W.A. No.1217 of 2014

¶48

-: 6 :-

¶49

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.

¶50

W.A. No.1217 of 2014

¶51

-: 7 :-

¶52

Issue Nos.1 and 2 being interconnected are

¶53

taken together. The Tribunal held that since the decision of the Municipality has not been communicated within 30 days from the date of application, the tenant shall be deemed to have obtained a deemed licence under Sec.447(6) of Act, 1994. Learned Single Judge while reversing the above view has held that the communication by the Municipality to the tenant shall be deemed to have taken place within 30 days since 30^th day was Sunday, the benefit of Sec.9 of Act 1125 shall be applicable.

¶54

There is no dispute between the parties that the application was submitted by the tenant for grant of licence on 13.01.2011. Notice was issued by the Municipality on 08.02.2011 which was received by the tenant on 14.02.2011.

¶55

Provisions of Section 447 (3), (3A) and (6) of Act, 1994 are relevant which are quoted as below:

¶56

W.A. No.1217 of 2014

¶57

-: 8 :-

¶58

“447(3) The Council shall, within thirty days from the date of receipt of the application by order and subject to such terms and conditions as it deems fit, either grant a licence for the use of a placfe for conducting a dangerous or offensive trade or in the interest of the public refuse to grant such licence.

¶59

(3A) The Secretary shall, within fifteen days from the date of receipt of the application, by order and subject to such terms and condition as he deems fit, either grant licence for using a place to conduct a common trade or in the interest of the public refuses to grant such licence.

¶60

(6) If the order or on an application for any licence or permission are not communicated to the applicant within thirty days after the receipt of the application by the Secretary or within such longer period, as may be prescribed in any class of cases the application shall be deemed to have been allowed for the period required in the application, subject to the Act, rules and byelaws and all conditions which would have been ordinary imposed.”

¶61

W.A. No.1217 of 2014

¶62

-: 9 :-

¶63

9. Learned Single Judge has given the following

¶64

reasons in paragraphs 13 and 14 for taking the decision that communication by the Municipality was within 30 days.

¶65

“13. The definite stand taken by the 3^rd respondent is that the order on the application for renewal was not communicated to him within thirty days. Admittedly, the application was received by the Secretary of the 1^st respondent on 13.1.2011. It is further admitted by both sides that the order of the Secretary of the 1^st respondent dated 8.2.2011 was communicated to the petitioner only on 14.2.2011.

¶66

14. We have verified the calender of the year 2011 to ascertain whether the reply reached the 3^rd respondent within a period 30 days as envisaged by Sec.447 stated above. The total number of days from 14^th January to 14^th February, 2011 is 31. However, the 30^th day falls on 13.1.2011 which is Sunday. Here I would like to refer to

¶67

W.A. No.1217 of 2014

¶68

-: 10 :-

¶69

Sections 8 and 9 of the Kerala Interpretation and General Clauses Act, 1125 which reads as follows:

¶70

8. Commencement and

¶71

termination of time.In any act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the work “from” and for the purpose of including the last in a series of days or any other period of time to use the work “to”.

¶72

9. Computation of time. Where by any Act, any act or proceeding is directed to or allowed to be done or taken in any Court or office on a certain day of within a prescribed time, then if the Court or office is closed on that day of the last day of prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day

¶73

W.A. No.1217 of 2014

¶74

-: 11 :-

¶75

afterwards on which the Court or office is open.”

¶76

Section 9 of Act, 1125 is akin to Sec.10 of the

¶77

General Clauses Act (Act 10 of 1897). Section 10 of Act, 1897 is as follows:

¶78

“10. Computation of time .

¶79

Where by any Act, any act or Regulation made after the commencement of this Act, any act or proceeding is directed to or allowed to be done or taken in any Court or office on a certain day of within a prescribed time, then if the Court or office is closed on that day of the last day of prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open.”

¶80

Section 10 of Act, 1897 contains a provision

¶81

for computation of time. The provision provides that if any act or proceeding is directed or allowed to be done or taken in any court or office on a certain day within a prescribed period, then if the court or office is closed on

¶82

W.A. No.1217 of 2014

¶83

-: 12 :-

¶84

that day or the last day of prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the court or office is open. The provision has been engrafted in the statute with regard to an act or proceeding which is allowed to be done or taken in any court or office. The Section uses two words, “court” or “office”. The Municipality can be held to be covered by the word 'office'. A plain meaning of Sec.10 indicates that direction effected is extended by the Section only to “act or proceeding directed or allowed to be done”. Thus the first requirement for extending the benefit of this Section is that the act should be one which is to be allowed to be done or taken in any court or office. Provision has been enacted for the benefit of those who are required to do any act or proceeding in a court or office and in event court or office is closed on a particular day, i.e., the last day, they may not suffer for a thing on which they have no control. The Apex Court

¶85

W.A. No.1217 of 2014

¶86

-: 13 :-

¶87

had occasion to consider the scope and ambit of Sec.10 of Act, 1897 in Harinder Singh v. Karnail Singh (AIR 1957 SC 271). The following was laid down by the Apex Court in paragraph 5:

¶88

“5. This argument proceeds on an interpretation of S. 10 of the General Clauses Act which, in our opinion, is erroneous. Broadly stated, the object of the section is, to enable a person to do what he could have done on a holiday, on the next working day. Where, therefore, a period is prescribed for the performance of an act in a Court or office, and that period expires on a holiday then according to the section the act should be considered to have been done within that period, if it is done on the next day on which the Court or office is open. For that section to apply, therefore, all that is requisite is that there should be a period prescribed, and that period should expire on a holiday. Now, it cannot be denied that the period of fourteen days provided in R. 119 (a) for presentation of an election petition is a period prescribed,

¶89

W.A. No.1217 of 2014

¶90

-: 14 :-

¶91

and that is its true character, whether the words used are "within fourteen days" or "not later than fourteen days". That the appellant between these two expressions is without substance will be clear beyond all doubt, when regard is had to S. 81 of the Act. Section 81 (1) enacts that the election petition may be presented "within such time as may be prescribed", and it is under this section that R. 119 has been framed. It is obvious that the rule- making authority could not have intended to go further than what the section itself had enacted, and if the language of the Rule is construed in conjunction with and under the coverage of the section under which it is framed, the words "not later than fourteen days" must be held to mean the same thing as "within a period of fourteen days". Reference in this connection should be made to the heading of R. 119 which is, "Time within which an election petition shall be presented". We entertain no doubt that the Legislature has used both the expressions as meaning the same thing, and there are accordingly no grounds for holding that S. 10

¶92

W.A. No.1217 of 2014

¶93

-: 15 :-

¶94

is not applicable to petitions falling within R.119.”

¶95

Now we have to look into the provision of

¶96

Sec.447 of Act, 1994 to find out as to what act or proceeding is required to be done in the office of the Municipality, to which benefit under Sec.10 of Act, 1897 can be extended. The provision which needs to be interpreted is sub-sec.(6) of Sec.447 of Act, 1994. The

¶97

key words in sub-sec.(6) are “if the order on an application for any licence or permission is not communicated to the applicant within 30 days after the receipt of the application by the Secretary...” Subsec.(6) contains a deeming clause on happening of a particular circumstance. The licence is deemed to have been allowed when the order on an application for licence or permission are not communicated to the applicant. Thus the deeming clause comes into play when order or permission is not communicated to the applicant. Communication to the applicant of an order

¶98

W.A. No.1217 of 2014

¶99

-: 16 :-

¶100

or permission of the Municipality is not an act or proceeding which are to be done in an office or court. The above clearly indicates that the present is not a case for application of Sec.9 of Act, 1125 or Sec.10 of Act 1897.

¶101

From the above analysis, it is clear that subsec.(6) of Sec.447 of Act, 1994 does not contemplate application of Sec.9 of Act, 1125 and the Municipality cannot take benefit of the said Section by excluding 13.02.2011 which was Sunday since communication was to be made to the applicant which act was to be done within 30 days. The act of communication was not required to be done in a court or office hence there is no applicability of Sec.9 of Act, 1125. We are thus of the view that the Tribunal has rightly held that the tenant has been granted licence. Learned Single Judge has erred in applying the provisions of Sec.9 of Act, 1125. We thus conclude that due to non-communication of the order by the Municipality within 30 days from the date of

¶102

W.A. No.1217 of 2014

¶103

-: 17 :-

¶104

application, the tenant shall be deemed to have allowed the licence. When the deemed licence is allowed to the tenant no obstruction could have been caused for running the business of fast-food by the tenant.

¶105

The third submission of the learned counsel for the tenant is that he was not required to obtain or to submit a fresh consent from the landlord while submitting application for licence for fast-food within the meaning of sub-sec.(3) of Sec.492 of Act, 1994. His submission is that the tenant was not applying for licence for the first time. In view of our observations and findings on the facts of the case that the tenant shall be deemed to have been granted licence it is unnecessary for us to consider the said submission or to express any opinion. We leave the said question open without expressing any opinion.

¶106

In view of the forgoing discussion, we allow this Writ Appeal setting aside the judgment of the learned Single Judge in W.P(C) No.31325 of 2011 dated

¶107

W.A. No.1217 of 2014

¶108

-: 18 :-

¶109

20.06.2014. The Writ Petition stands dismissed. Parties

¶110

shall suffer their costs.

¶111

ASHOK BHUSHAN, Ag. C.J.