Kerala High Court

Mannarkad Municipality vs Mannarkad Municipality on 5 February, 2021

             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

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,

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,

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.

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

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

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

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;

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;

(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

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

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

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.

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

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

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

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