Laxmi Livestock Feeds Private Limited vs The Commissioner, The Health and Medical Officer, Sanjayanagar Division, The Chairman, The Standing Appeal Committee and Bhor Industries Ltd.

M.K. Patil, J.—The petitioner questioning the legality and the validity of the order dated 5-1-2006 passed by the 3rd respondent in appeal No. 2259/2005 vide Annexure- ''AN'' in subject No. (A.s.c. (H) 11/2005/06) has presented the instant writ Petition.

The grievance made out by the petitioner in the instant writ petition is that, he filed an application for issue of licence before respondents 1 & 2. The said application was filed by the petitioner to renew the licence to run the business in the suit schedule premises and after scrutinizing the application filed by the petitioner the 2nd respondent has issued an Endorsement dated 11-7-2005 vide Annexure-W stating that the petitioner has not produced the ''No Objection Certificate'' from the land owner. Assailing the correctness of the said Endorsement issued by the 2nd respondent the petitioner herein has filed an appeal on the file of the 3rd respondent. The said appeal filed by the petitioner came up for consideration before the 3" respondent in the meeting held on 5-1-2006 in Subject No. (A.S.C. (H) 11/2005-06.

The 3rd respondent after considering the material available on record and after careful perusal of the Endorsement issued by the 2nd respondent has dismissed the appeal holding that the petitioner has failed to produce the ''No Objection Certificate'' from the owner. Questioning the correctness of the impugned order vide Annexure ''AN'' and sacking appropriate directions to consider the application filed by the petitioner without insisting on ''No Objection Certificate'', the petitioner has filed the instant writ petition.

The principal submission canvassed by the learned Counsel for the petitioner is that several requests ware made for issuance of fresh licence by the petitioner-Company being a tenant, in which premises the petitioner is in peaceful possession and enjoyment. It is not in dispute that there is no provision under the Karnataka Municipal Corporation Act to compel the tenant to produce ''NO objection certificate'' for seeking a fresh licence. The reasons assigned by respondents 2 & 3 in rejecting the application filed by the petitioner for issue of licence is not sustainable and contrary to the mandatory provisions of the Karnataka Municipal Corporation Act, To substantiate the submissions he placed reliance on the Judgment of this Court in Writ Appeal to. 1490/2005 disposed of on 2nd March, 2005, wherein this Court has held that so long as the tenant has not been evicted and is in lawful possession of the demised premises, the lease deed itself shall be deemed to be the consent of the -landlord to enable the appellant therein to install a fresh connection for supply of electricity. Therefore, he submitted that the impugned order passed by the 3rd respondent is liable to be set aside.

Per contra, the learned Counsel appearing for the respondents inter alia contended and substantiated the Endorsement issued by the 2nd respondent and ha was quick to point out the relevant provisions of Section 447 of the Karnataka Municipal corporation Act(hereinafter referred to as "the Act'' for short) and further submitted that as per - prescribed application to be filed by the parson who seek for trade licence pre-requisite condition has been stipulated such -as" owner''s consent latter and neighbour''s consent letter as per By-law No. 41 which is mandatory in nature. Therefore, he submitted that the impugned order passed by the competent authority is in strict compliance of the mandatory provisions of the corporation Act read with By-law of 41 of Bangalore Mahanagara Palike. In view of this, he submitted that the writ Petition is liable to be dismissed on this sole ground alone.

I have heard the learned Counsel for the petitioner and the learned Counsel for the respondents.

After considering the rival contentions urged by the learned Counsel appearing for both the parties the only question that arises for consideration is whether the impugned order passed by the 3rd respondent is sustainable in lay or not ?

After careful perusal of the Endorsement issued by the 2nd respondent vide Annexure ''AJ'' the impugned order passed by the 3rd respondent vide Annexures-''AN'' it is manifest from the contents of the Endorsement and the order referred thereto, that it is not in dispute that the petitioner has not produced No Objection Certificate from the owner as envisaged u/s 447 of the Karnataka Municipal Corporation Act read with By-law No. 41 of Mahanagara Palike.

After careful perusal of the provisions of Section 447 and By-law 41 of Mahanagara Palika it has bean specifically prescribed under By-law 41 that the applicants filing an application for fresh licence must file the application along with the necessary documents such as:

1) owner''s consent,

2) Neighbour''s consent latter,

3) Trade Premises lay-out plan,

4) Previous licence book,

5) Tax paid receipt.

As per the said Bye-lay format of ''NO objections''- to be issued by the owner is also prescribed. In the instant case, it is not the case of the petitioner that they have produced No Objection Certificate from the owner, but there is no need to produce NO objection certificate from the owner. As submitted by the learned senior Counsel appearing for the petitioner on the ground that as per the terras and conditions of the lease there is no need to produce *No objection'' from the owner as they are in peaceful possession and enjoyment as per the terms and conditions stipulated by the authorities.

However, the learned Counsel appearing for the 4th respondent has submitted that the recital of the terms and conditions of the lease deed do not stipulate regarding the licence and how it should be obtained and the said lease is not a registered lease deed. Further, the reliance placed by the learned Counsel for the petitioner on the Division Bench Judgment of this Court in writ Appeal No. 1490/2005 disposed of on 2nd March, 2006 wherein the registered lease deed was not considered and the subject matter involved therein was for supplying electricity to the tenant who was in peaceful possession. But in the instant case, what the petitioner has sought is for issue of fresh licence to run the business. As par the objection raised by the competent authority-respondents 2 & 3 the same should be in strict compliance of the mandatory provisions of Section 447 & By-law 41. Therefore, I do not find any error muchless irregularity as such committed by the competent authority for issue of licence in favour of the petitioner, in that view of the matter, interference by this Court is not justifiable.

For another -reason also the petition is liable to be rejected, as rightly pointed out by the learned appearing for the corporation that to substantiate that existing NOC is in accordance with the lay laid down by this Court in the case of R.G. Prasad v. State of Karnataka and Ors. reported in 1997(3) KarLJ 456 wherein this Court has held that the consent of the owner should be obtained as stipulated u/s 447 of the Karnataka Municipal Corporation Act.

After careful perusal of the said Judgment it is a fact that this Court has held that the owner''s consent should be obtained to take a fresh licence. Therefore, having regard to the facts and circumstances of the case and taking into consideration the factual legal aspect of the matter and having regard to the totality of the case on hand, I do not find any ground to interfere with the order passed by the 3rd respondent nor the petitioner has made out any ground to entertain this writ Petition. Accordingly, the writ petition is dismissed as devoid of merits.