Kerala High Court
Mannarkad Municipality vs Abdul Gafoor on 5 February, 2021
Author: Shaji P. Chaly
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 05TH DAY OF FEBRUARY 2021 / 16TH MAGHA,1942
WA.No.156 OF 2021
AGAINST THE INTERIM ORDER IN WP(C) 25817/2020(B) OF HIGH COURT OF
KERALA
APPELLANTS/RESPONDENTS 1,2 & 3:
1 MANNARKAD MUNICIPALITY
MUNICIPAL OFFICE, MANNARKAD, PALAKKAD - 678 582,
REPRESENTED BY ITS SECRETARY.
2 THE SECRETARY
MANNARKAD MUNICIPALITY, MUNICIPAL OFFICE, MANNARKAD,
PALAKKAD - 678 582.
3 THE MUNICIPAL COUNCIL
MANNARKAD MUNICIPALITY, MUNICIPAL OFFICE, MANNARKAD,
PALAKKAD - 678 582.
BY ADVS.
SRI.P.R.VENKATESH
SRI.G.KEERTHIVAS
RESPONDENTS/PETITIONER & 4TH RESPONDENT:
1 ABDUL GAFOOR
AGED 40 YEARS
S/O. HAMZA, NAMBIYATH HOUSE, KUNTHIPPUZHA, MANNARKAD
COLLEGE P.O., PALAKKAD - 678582.
2 THE ENVIRONMENT ENGINEER
DISTRICT OFFICE, KERALA STATE POLLUTION CONTROL
BOARD, PALAKKAD - 678 014.
SRI.K.T.THOMAS FOR R1,
SRI T.NAVEEN STANDING COUNSEL FOR R2
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01-02-2021, THE
COURT ON 05-02-2021 DELIVERED THE FOLLOWING:
WA.No.156 OF 2021 2
CR
JUDGMENT
SHAJI P. CHALY, J.
Respondents 1 to 3, i.e., the Mannarkkad Municipality, the Secretary and the Municipal Council in W.P.(C) No.25817/2020, are the appellants, challenging the legality and correctness of the following interim order passed by the learned Single Judge dated 17.12.2020:
" ORDER Admit. Respective Standing Counsel takes notice for the respondents. In the light of Ext.P1 consent to establish and Ext.P2 consent to operate the fish market, Ext.P8 decision of the Municipality in rejecting the application for licence submitted by the petitioner is prima facie unsustainable, especially in the light of the decision of the Full Bench of this Court in Tomy Thomas v. State of Kerala, 2019(3) KLT 987.
In the circumstances, there will be an interim order, as prayed for."
2. Subject issue relates to trade licence application submitted by the writ petitioner/1st respondent in the appeal to conduct a private market, on the basis that the Secretary of the Municipality is duty bound to issue licence since the writ petitioner has secured consent to establish and consent to operate from the Kerala State Pollution Control Board, evident from Exhibits P1 and P2. The Municipality, on the basis of Exhibit P7 application submitted by the writ petitioner, has passed Exhibit P8 order stating that since the fish market is to WA.No.156 OF 2021 3 be conducted on the side of Kunthipuzha river, there is a chance of river being polluted, which will affect the drinking water source of the people in the locality and it would have serious health problems to the people. It is also stated therein that the place was not inspected by the Pollution Control Board in the presence of Municipal Council and therefore, it was decided not to grant licence, and further that action will be taken to consider the application after conducting a joint inspection by the Pollution Control Board and the Municipal Council.
3. The paramount contention advanced in the writ petition was that the application of the writ petitioner was not considered in accordance with the statutory provisions and the Municipal Council has neither shown any advertence to the consent nor considered the same before deciding to reject the application. It was also pointed out that the Pollution Control Board has issued consent to operate to the writ petitioner after verifying the activity to be carried on by the petitioner and taking note of the existence of nearby wells, water sources and river and that the consent was issued after considering the objections of all affected parties also. It was also submitted that there is no provision for any joint inspection of the Municipal Council and the Pollution Control Board in order to issue a trade licence as per the provisions of the Kerala Municipality (Issue of Licenses to Dangerous and Offensive Trades and Other Trades and Factories) Rules, 2011 or under the provisions of the Kerala Municipality Act 1994. That apart it was contended that rule 6 of the Rules, WA.No.156 OF 2021 4 2011 mandates consideration of the report of the Secretary before a decision is taken by the Council and that the issue is guided by the proposition of law laid down by a Full Bench of this Court in Tomy Thomas v. State of Kerala [ 2019(3) KLT 987(F.B.)].
4. In the appeal, the contention raised by the appellants is that, the proposition of law laid down in Tomy Thomas (supra) would not at all attract in the case on hand since the issue herein is in respect of the conduct of a fish market and the Municipal Council is vested with powers to verify in order to identify as to whether the conduct of the fish market would pollute the drinking water source namely the Kunthipuzha river. It was also pointed out that the interim relief sought for by the writ petitioner was a direction to the 2nd appellant herein i.e., the Secretary of the Municipality, to provisionally issue trade licence for conduct of fish market in the building bearing No.3/1 situated in Sy.Nos.70/1, 70/2 and 94/4 of Mannarkkad Village which is not maintainable under law basically for the reason that the Municipality alone is vested with powers to grant licence .
5. In fact the writ petitioner had earlier approached this Court by filing W.P.(C) No.28599/2019 and secured Exhibit P6 judgment dated 17.9.2020, whereby the Municipal Council was directed to take a decision on the application filed by the writ petitioner after adverting to the consent issued by the Pollution Control Board and also taking into account the provisions of the Kerala Municipality Act, 1994, within a period of four weeks. Therefore, WA.No.156 OF 2021 5 according to the appellants, the direction issued by the learned Single Judge in the interim order to the Secretary of the Municipality to issue a provisional licence cannot be sustained under law since it is violative of the requirements of section 460 and the consequential provisions thereto of Act, 1994. It was also pointed out that the question with respect to a private market is singularly guided by section 460 of Act, 1994, and therefore section 447 of Act, 1994 has no bearing to the issue.
6. We have heard learned counsel for appellants Sri.P.R.Venkatesh and Sri.K.T.Thomas appearing for the writ petitioner/1st respondent and perused the pleadings and materials on record.
7. The basic issue raised by the appellants in the writ appeal is that the direction issued to the Secretary of the Municipality to issue licence provisionally is against the clear statutory mandate contained under section 460 of Act, 1994, and therefore section 447 of Act, 1994 cannot be brought into play at all for the purpose of consideration of an application to run a private market. It is only apposite to state that there is no dispute by and between the parties that the writ petitioner sought for a licence to conduct a private fish market, which is also quite clear and evident from the application submitted as well as from Exhibit P6 judgment secured by the writ petitioner in W.P.(C) No.28599/2019 dated 17.9.2020. The learned Single Judge has granted the interim order sought for by the writ petitioner basically on the premise of the Full Bench judgment in Tomy Thomas supra.
WA.No.156 OF 2021 6
8. In fact the question considered by the Full Bench in Tomy Thomas was in respect of the primacy of the Grama Panchayat to consider the licence application de hors the consent/licenses granted by other authorities, and it was held in the judgment that the Panchayat is vested with powers to take its own decision irrespective of the consent/licenses granted by other statutory authorities. However, it was taken note of the fact that, consequent to the amendment made to section 233 of the Kerala Panchayat Raj Act dealing with the issue of licences to Industries, Factories, Trades, Entrepreneurship Activities and other services, (a provision similar to section 447 of the Kerala Municipality Act, 1994 and the Rules thereto), a Village Panchayat is duty bound to issue a trade licence in accordance with the provisions of section 232 and further that, even if the Panchayat is of the opinion that the construction or establishment of the factory, workshop or workplace is objectionable by reasons of high density of population in the neighbourhood and is likely to cause nuisance, then also the Panchayat can only obtain expert opinion from the department concerned and it is obliged to issue permission for such construction or establishment subject to such conditions as may be required for abatement of nuisance, if any, as may be recommended in the expert opinion of the concerned department. Therefore, it was held that the legal position has been changed by virtue of the amendments and the village panchayats do not enjoy any primacy of their power to refuse the applications seeking permission for construction or establishment of any factory, workshop WA.No.156 OF 2021 7 or workplace, under section 233 of the Kerala Panchayat Raj Act, on and from the date of enforcement of the amendments.
9. As we have pointed out earlier, section 447 of the Kerala Municipality Act, 1994 is a typical provision to section 233 of the Kerala Panchayat Raj Act, 1994 and the typical amendments are carried out to section 447 as per Act 14 of 2018, which has come into force immediately. Section 447 comes under Chapter XX of Kerala Municipality Act, 1994 dealing with Licenses and Fees and General Provisions as to licenses. The provisions of Chapter XX takes care of grant of various licensing activities,and the conditions precedent to grant or renewal of licence starting from keeping of animals, industries, factories, trades and other services, slaughter houses, milk trade, markets, butchers, fishmongers and hawkers, cart stands etc.
10. Here in this case, we are considered only with section 447 dealing with industries, factories and other trades and section 460 dealing with licence for private markets. Section 447 specifies that no place within the Municipal area shall be used generally for industries, factories, trades, workplaces and other services, which directly or indirectly adversely affect public interests such as environment, public safety and public health or cause nuisance. Other conditions are prescribed in order to grant licence to such industries or factories.
11. It is true that by virtue of the Rules, 2011 prescribed in order to implement the provisions of sections 447 and 448 and the amendments WA.No.156 OF 2021 8 thereto on the basis of the report submitted by the Secretary to the Municipality, Municipal council has to issue a license to the establishment for which licence is applied under section 447 of Act, 1994 after following certain mandatory parameters. However, according to us, section 460 of the Municipality Act, 1994 specifically deals with licence for private markets and sub-section (1) thereto clearly specifies that no person shall open a new private market or continue to keep open a private market except on a licence from the Municipality. Section 460 to 466 deals with the manner in which the application for licence is to be considered by the Municipality, and therefore for convenience and fruitful appreciation of the legal circumstances, they are extracted hereunder:
"460.Licence for private markets.--(1)No person shall open a new private market or continue to keep open a private market except on a licence from the Municipality.
(2) Application for a licence under sub-section (1) shall be made by the owner of the place in respect of which the licence is sought to be renewed, not less than six weeks before the expiry of the period for which the licence has been granted and in the case of a new market, six weeks before the date on which the market is proposed to be opened.
(3) The Municipality shall, as regards private markets already established and may, at its direction as regards new private markets grant the licence applied for subject to such regulations as to supervision and inspection and to such conditions as to sanitation, and rents and fees to be charged in such market as it may think proper or it may, for reasons to be recorded in writing, refuse to grant any such licence for any new private market. The Municipality may, however at any time, modify the conditions of a licence to take effect from any specified date or suspend or cancel any WA.No.156 OF 2021 9 licence for breach of any conditions thereof.
(4) Where a licence is granted, refused, modified, suspended or cancelled under this section, the Municipality shall cause a notice of such grant, refusal, modification, suspension or cancellation in English and the language of the locality to be pasted in some conspicuous place at or near the entrance to the place in respect of which the licence was sought or had been obtained.
(5) Every licence granted under this section shall expire at the end of the year in which it is granted, [Explanation.-- For the purpose of this section private market includes also a shopping complex having more than six shop rooms.)
461. Fees for licence.- Where a licence granted under section 460 permits the levy of any fees of the nature specified in sub-section (2) of section 458, a fee not exceeding 33 1/3 per cent of the gross income of the owner from the market in the preceding year shall be charged by a Municipality for such licence;
Provided that
(i) in the case of a market which was in existence only for a portion of the preceding year, the gross income of the owner from the market for the preceding years shall be deemed to be an amount which bears to the income of the portion of the year the same proportion as the whole year bears to the portion of the preceding year during which the market was in existence.
(ii) in the case of a new market, the licence fees fixed by a Municipality shall not be less than
(a) fifty rupees where the area of the market is not more than ten ares;
(b) hundred rupees where the area of the market is above ten ares, but not more than twenty ares;
(c) one hundred and fifty rupees where the area of the market is above twenty ares.WA.No.156 OF 2021 10
462. Sale in unlicensed private markets.- No person shall sell or expose for sale any animal or article in any unlicensed private market.
463. Power of Municipality in respect of private market.-- A Municipality may, by notice, require the owner, occupier or farmer of any private market to-
(a) construct approaches, entrances, passages gates, drains and cess pits for such market and provide it with latrines of such description and in such position and number as the Municipality may think fit.
(b) roof and pave the whole or any portion of it or pave any portion of the floor with such materials as will in the opinion of the Municipality secure imperviousness and ready cleansing;
(c) ventilate it properly and provide it with supply of water.
(d) provide passages of sufficient width between the stalls and make such alterations in the stalls, passages, shops, doors or other parts of the markets as the Municipality may direct; and
(e) keep it in a cleanly and proper state and remove all filth and refuse therefrom.
464. Suspension or refusal of licence in default.- (1) Where any person after notice given to him in that behalf by the Municipality fails within the period and in the manner specified in the said notice to carry out any of the works specified in section 463, the Municipality may suspend the licence of the said person or may refuse to grant to him a licence, until such works have been completed.
(2) No person shall open or keep open any such market after suspension or refusal of the licence.
465. Prohibition of nuisance in private market.- No owner, occupier agent or manager in charge of any private market or of any shop, stall, shed or other place therein shall keep the same so as to cause a nuisance or shall fail to cause anything that is a nuisance to be at once removed to a place to WA.No.156 OF 2021 11 be specified by the Municipality,
466. Power to close private market.-- The Secretary or any officer duly authorised by him in that behalf may close any private market in respect of which no licence has been applied for or the licence for which has been refused, withheld or suspended or which is held or kept open contrary to the provision of this Act."
12. On a reading of sub-section (1) of section 460 of Act, 1994, it is clear that it is the Municipality that is to grant the establishment licence to the owner of a private market. Subsection (3) thereto makes it clear that the Municipality alone is vested with powers to issue a trade license subject to such regulations as to supervision and inspection and to such conditions as to sanitation, drainage, water supply, width of paths and ways etc. A reading of other provisions extracted above would make it clear that the Municipality is the authority vested with powers to regulate and control activities of a private market. However, the Secretary is vested with powers to close the private market in respect of which no licence has been applied for or licence for which has been refused, withheld or suspended or which is held or kept open contrary to the provisions of Act, 1994.
13. The significance of consideration of the said provisions is for the reason that, when the powers are conferred on the Municipality to grant the licenses, it alone is to consider the application for licenses of a private market. However, the learned Single Judge by granting the interim relief as sought for by the writ petitioner, has in effect directed the Secretary to issue the WA.No.156 OF 2021 12 provisional licence. In that regard, learned counsel for the writ petitioner submitted that even though applications for licenses are to be considered by the Municipality, the Secretary is the authority to issue licence. However, on a plain reading of section 460(1) and (3), there can be no doubt that there is a clear prohibition in regard to the opening of a private market and conducting trade except upon a licence from the Municipality. The conditions prescribed thereto also makes it clear that an application is to be submitted to the Municipality and not to the Secretary of the Municipality, whereas for the purpose of other licenses like slaughterhouse, milk trade etc., the Secretary of the Municipality alone is vested with powers to consider the application for licenses.
14. Even Though learned counsel for the writ petitioner submitted that even if the decision is to be taken by the Municipality, the Secretary is to issue the licence in accordance with the form prescribed as per the rules made under sections 447 and 448 of the Kerala Municipality Act, 1994, we disagree, firstly for the reason, nowhere in section 460 of Act, 1994, it is stated that the application for licence is to be submitted in accordance with the form prescribed as per the rules under section 447 of Act, 1994. Secondly, when the power is conferred on the Municipality to issue the licence on the basis of the application submitted to it, the mere prescription in a form empowering the secretary to issue the license cannot take away the statutory power conferred on the Municipality grant and issue the license. Even though a contention is WA.No.156 OF 2021 13 advanced by learned counsel for the writ petitioner that the expression 'Municipality' used in section 460 is different from the 'Council' defined under the Kerala Municipality Act, 1994 we are not inclined to accept the same. Municipality is not defined under Act, 1994. However, Council is defined as per section 2(9) to mean the Council of a Town Panchayat, a Municipal Council or a Municipal Corporation. Therefore, we do not find any force in the said contention as the council is unable to be detached from the Municipality and vice versa.
15. The next question raised is that the Secretary is to issue the licence on the basis of a decision taken by the Municipality/ Municipal Council and viewed in that manner the direction issued by the learned Single Judge to the Secretary of the Municipality to provisionally issue the licence cannot be said to be bad or illegal. In that regard, we are inclined to verify the power conferred on the Secretary as per Act, 1994. Section 48 of Act, 1994 deals with the Secretary of Municipality, which specifies that the Secretary shall not without the sanction of the Municipality or the Government, undertake any work unconnected with the office. Sub-section (5) thereto stipulates that the Secretary shall be the custodian of all Municipal properties and records including all papers and documents connected with the proceedings of the Council and the Standing Committee and other Committees, and shall arrange for the performance of such functions, as may be entrusted to him by the said bodies.
WA.No.156 OF 2021 14
16. Section 49 of Act, 1994 deals with functions of the Secretary, which specifies that;
(a) record his opinion in writing on all matters with which he is concerned and which require the decision of the Chairperson, the Council or the Standing Committees and
(b) implement the resolutions of the Council and the Standing Committee. However, by virtue of the provisos contained thereunder, if the Secretary is in disagreement with the decision taken by the Municipality, he can seek for a review of the decision and still if the Municipality affirms its decision, the powers vested with the Secretary is to refer the matter to the Government for appropriate action and decision.
17. Section 50 of Act, 1994 deals with rights and duties of Secretary and sub-section (1) thereto specifies that the Secretary shall attend the meetings of the Council and the meetings of the Standing Committee or any other Committee of a Municipality and may take part in the discussions thereat; as an adviser, but shall not have the right to move any resolution or to vote. Section 229B of Act, 1994 deals with exercise of statutory functions of the officials, which clearly specifies that where any officer of the Municipality is vested with any statutory powers or functions to be independently and solely exercised by such officer, the Council, the Chairperson, the Chairman of standing committee or any Councilor, shall not interfere with or influence in the exercise of such powers or functions by such officer.
18. Considering the aforesaid provisions together, we are of the opinion WA.No.156 OF 2021 15 that, wherever there is a power conferred on the Secretary of the Municipality under the provisions of Act, 1994 and the rules, if any, thereto, the Municipal Council, the Chairperson or the Chairman of Standing Committee or any Councillor has power to interfere with the exercise of such powers by the Secretary. In all other respects the Secretary is a subordinate authority to the Municipal Council and is duty bound to implement the decisions of the council subject to the powers conferred under the provisos to section 49 of Act 1994 . That apart section 492 deals with general provisions regarding licenses and permissions and sub-section (1) thereto clearly specifies that every licence and permission granted under Act, 1994 or any rule or by-law made thereunder shall specify the period, if any, for which, and the restrictions, limitations and conditions subject to which, the same is granted and shall be signed by the Secretary. Section 492(1) makes it clear that licence and permission are to be granted in accordance with the provisions of Act or any rule or bye-law. Which thus means when the Municipality is vested with powers to entertain an application for opening a private market and grant trade license, it has to issue the licence, which has to be signed by the Secretary, exercising the powers conferred under section 492 of Act, 1994. sub-section (9) & (10) of section 492 are relevant in this context and they are extracted hereunder:
"(9) Subject to the provisions in this Chapter regarding buildings and private markets and subject to such sanction as may be required for the refusal of a licence or permission, any licence or permission granted under this Act or any rule or bye-law made thereunder, may, at any time, be suspended or revoked by the Secretary if any of its restrictions, limitations or conditions is evaded or WA.No.156 OF 2021 16 infringed by the grantee, or if the grantee is convicted of a breach of any of the provisions of this Act or of any rule, bye-law or regulation made thereunder in any matter to which such licence or permission relates, or if the grantee has obtained the same by misrepresentation or fraud.
(10) It shall be the duty of the Secretary to inspect places in respect of which a licence or permission is required by or under this Act, and he may enter any such place between sunrise and sunset and also between sunset and sunrise if it is open to the public or any industry is being carried on in it at the time and if he has reason to believe that anything is being done in any place without a licence or permission where the same is required by or under this Act, or otherwise than in conformity with the same, he may, at any time, by day or night, without notice, enter such place for the purpose of satisfying himself whether any provision of law, rule, bye-law, regulations, any condition of a licence or permission or any lawful directions, regulations, or prohibition is being contravened, and no claim shall lie against any person for any damage or inconvenience caused by the exercise of powers under this sub-section by the Secretary or any person to whom he has lawfully delegated his power or by any force necessary for effecting an entrance under this sub-section."
19. Thus, we are persuaded to come to the final conclusion that since the Act provides specific provisions for licensing of private markets and prescribes the procedure thereto, the general provisions contained under sections 447 and 448 of Act, 1994 and the rules thereto will not come into play at all and even if the application seeking licenses for opening of private markets are submitted in the forms prescribed as per Rules, 2011 specified above, it can only be submitted to the municipality and the municipality is to issue the licenses and the Secretary can only affix the signature on the grant WA.No.156 OF 2021 17 of license by the the municipality.
20. Taking into account the above legal aspects, and the gamut of the issues we are of the clear opinion that the direction issued by the learned Single Judge to the Secretary of the Municipality to issue a provisional licence to the writ petitioner, cannot be legally sustained. Therefore, the interim order passed by the learned Single Judge specified above is set aside and the writ appeal is allowed accordingly. However, we make it clear that this will not disable the writ petitioner to seek any interim relief before the learned Single Judge in accordance with law.
Sd/-
S. MANIKUMAR, CHIEF JUSTICE.
Sd/-
SHAJI P. CHALY, JUDGE.
smv