Kerala High Court
Abdul Gafoor vs Mannarkad Municipality on 17 September, 2020
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
THURSDAY, THE 17TH DAY OF SEPTEMBER 2020 / 26TH BHADRA, 1942
WP(C).No.28599 OF 2019(Y)
PETITIONER:
ABDUL GAFOOR,
AGED 40 YEARS
S/O.HAMZA, NAMBIYATH HOUSE, KUNTHIPPUZHA, MANNARKKAD
COLLEGE P.O., PALAKKAD, PIN-678582.
BY ADVS.
SRI.K.T.THOMAS
SRI.NIKHIL BERNY
RESPONDENTS:
1 MANNARKAD MUNICIPALITY,
MUNICIPAL OFFICE, MANNARKAD, PALAKKAD-678582, REP. BY
ITS SECRETARY.
2 THE SECRETARY,
MANNARKAD MUNICIPALITY, MUNICIPAL OFFICE, MANNARKAD,
PALAKKAD-678582.
3 THE MUNICIPAL COUNCIL,
MANNARKAD MUNICIPALITY, MUNICIPAL OFFICE, MANNARKAD,
PALAKKAD-678582, REP. BY ITS CHAIRPERSON.
4 THE ENVIRONMENT ENGINEER,
DISTRICT OFFICE, KERALA STATE POLLUTION CONTROL
BOARD, PALAKKAD-678014.
R1-3 BY ADV. P.R.VENKITESH
ADV. M R DHANIL G P
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
17.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.28599 OF 2019(Y)
2
A.MUHAMED MUSTAQUE, J.
-----------------------------------------
WP(C) No.28599/2019
----------------------------------------
Dated this the 17th day of September, 2020
JUDGMENT
The petitioner obtained consent from the Pollution Control Board to establish a fish market. The petitioner's application for licence under the Kerala Municipality Act, 1994 was rejected. That was challenged before this Court. This Court set aside the decision of the Municipality. Thereupon, the matter was taken before the Division Bench in appeal. The Division Bench was of the view that the Secretary has to ascertain the nature of the activity and decide whether activity of the petitioner would attract the activity of a private market or not. Accordingly, the decision was taken by the Secretary holding that it is a private market. If it is a private market, the decision on the application for licence has to be taken by the Municipal Council. The petitioner's case is that the activity does not fall within the meaning of 'market' and therefore, the Secretary himself has to consider the application.
WP(C).No.28599 OF 2019(Y) 3
2. It is to be noted that the petitioner obtained consent from the Pollution Control Board to establish a fish market. Nature of activity as revealed from the impugned order itself would show that it is in the nature of a fish market. Under Section 2(31) of the Kerala Municipality Act, 1994 the term "Private Market" is defined as follows:-
2(31)"Private Market" means any market other than a public market.
Under Section 2(23) of the Kerala Municipality Act, 1994 the term 'market' is defined as follows:-
2(23) "Market" means any place set apart or oridinarly or periodically used for the assembling of persons for the sale or purchase of grain, fruit, vegetables, meat, fish or other perishable articles of food or for the sale or purchase of live-stock or poultry, or of any agricultural or industrial produce or any raw or manufactured products or any other articles or commodity necessary for the convenience of life, provided that a single shop or group of shops, not being more than six in number, shall not be deemed to be a market;"
3. In such scenario, the Council has to take a decision. The Council shall take a decision on the application filed by the petitioner after adverting to the consent issued by the Pollution Control Board WP(C).No.28599 OF 2019(Y) 4 without any delay at any rate within a period of four weeks. The petitioner shall make application before the Council within a period of one week from the date of receipt of a copy of this judgment.
The writ petition is disposed of as above.
Sd/-
A. MUHAMED MUSTAQUE JUDGE SAS/17/09/2020 WP(C).No.28599 OF 2019(Y) 5 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE CONSENT TO ESTABLISH ISSUED BY 4TH RESPONDENT.
EXHIBIT P2 TRUE COPY OF CONSENT TO OPERATE DATED 25.03.2019 ISSUED BY 4TH RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE APPLICATION FOR LICENSE SUBMITTED BY THE PETITIONER ALONG WITH DOCUMENTS.
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 30.04.2019 ISSUED BY THE SECRETARY OF MUNICIPALITY. EXHIBIT P5 TRUE COPY OF THE DECISION NO.6 DATED 27.04.2019 OF THE MUNICIPAL COUNCIL. EXHIBIT P6 TRUE COPY OF THE RECOMMENDATION DATED 25.04.2019 OF THE SECRETARY.
EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 01.07.2019 IN W.P.(C) NO.13369 OF 2019.
EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 02.08.2019 IN W.A.NO.1666 OF 2019.
EXHIBIT P9 TRUE COPY OF THE ORDER DATED 31.08.2019 PASSED BY THE 2ND RESPONDENT.
EXHIBIT P10 TRUE COPY OF THE ROUGH SKETCH OF THE SITE AND ITS SURROUNDINGS.
RESPONDENTS' EXHIBITS:- NIL
//TRUE COPY//
P.A. TO JUDGE