Kerala High Court
Farooq V vs Pandikkad Grama Panchayath on 18 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942
WP(C).No.21151 OF 2020(T)
PETITIONER:
FAROOQ V.,
S/O.MUHAMMED V, VALAKKADAN HOUSE,
THACHINGANADAM P.O.,
MALAPPURAM DISTRICT
BY ADV. SRI.U.K.DEVIDAS
RESPONDENTS:
1 PANDIKKAD GRAMA PANCHAYATH
PANDIKKAD P.O., MALAPPURAM DISTRICT-676 521,
REPRESENTED BY ITS SECRETARY
2 THE SECRETARY,
PANDIKKAD GRAMA PANCHAYATH,
PANDIKKAD P-O.
MALAPPURAM DISTRICT-676 521.
3 THE HEALTH INSPECTOR ,
FAMILY HEALTH CENTRE, PANDIKKAD,
MALAPPURAM DISTRICT-676 521.
4 THE DISTRICT MEDICAL OFFICER, (HEALTH)
CIVIL STATION, B BLOCK,
MALAPPURAM-676 505
5 THE ENVIRONMENTAL ENGINEER,
KERALA STATE POLLUTION CONTROL BOARD,
REGIONAL OFFICE,
MALAPPURAM-676 505.
6 THE CONVENER,
VALIYATHRAPADI JANAKIYA ACTION COMMITTEE,
VALIYATHRAPADI, PANDIKKAD,
MALAPPURAM DISTRICT-676 521.
7 THE SUPERVISOR,
ICDS, PANDIKKAD,
MALAPPURAM DISTRICT-676 521.
*ADDL R8 P.NEELAKANTAN NAMBEESAN
WP(C).No.21151 OF 2020(T)
2
S/O.NEELAKANTAN NAMBEESAN,
AGED 92 YEARS,
RESIDING AT 'KRISHNA NIVAS',
VALLUVANGAD SOUTH P.O,
PANDIKKAD, MALAPPURAM DISTRICT
PIN - 676 521
ADDL.R8 IS IMPLEADED AS PER ORDER DT.25/1/2021 IN
I.A.NO.1/21 IN W.P.(C) NO.21151/20
BY ADVS.
SRI.K.M.SATHYANATHA MENON
SMT.KAVERY S THAMPI
SRI.T.A.SHAJI (SR.)
SRI.S.ABHILASH VISHNU
SRI.ATHUL SHAJI
SRI.P.J.MATHEW
SRI.EBIN MATHEW
SMT.AKHILA SHOJI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
18.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.21151 OF 2020(T)
3
W.P.(C) No.21151 of 2020
-----------------------------------------------
JUDGMENT
Petitioner intends to start wholesale fish business within
the limits of the first respondent Grama Panchayat. For the said
purpose, he preferred an application for licence before the Panchayat
under the Kerala Panchayat Raj (Issue of Licence to Factories, Trades,
Entrepreneurship activities and other services) Rules, 1996 (the
Rules). The application has been rejected by the Committee of the
Panchayat as per Ext.P9 resolution. The petitioner had in fact started
the business without obtaining licence of the Panchayat, and the
Panchayat, in the circumstances, interdicted the business of the
petitioner as per Ext.P8 stop memo. The writ petition was one
instituted at that point of time challenging Ext.P8 stop memo. Later,
when Ext.P9 decision was taken by the Panchayat, the writ petition
was amended incorporating a challenge against Ext.P9 as well.
2. Heard the learned counsel for the petitioner, the
learned Standing Counsel for the Panchayat, the learned Senior
Counsel for the sixth respondent as also the learned counsel for the
additional eighth respondent.
WP(C).No.21151 OF 2020(T)
3. I am not examining the correctness of Ext.P9
decision of the Panchayat, for the main contention of the contesting
respondents namely respondents 6 and 8 is that the petitioner is
proposing to establish a fish market and therefore, what is required
by him is a licence under the Kerala Panchayat Raj (Issuance of
Licence And Control of Public and Private Markets) Rules, 1996 (the
Market Rules) and that the petitioner has not even applied for the
same. According to the learned counsel for the petitioner, the
activity proposed by the petitioner is one that would fall within Entry
45 of schedule 1 to the Rules and therefore it is unnecessary for the
petitioner to obtain licence under the Market Rules.
4. Entry 45 of Schedule 1 to the Rules reads thus:
"45. Fish - Storing, packing, cleansing, preparing, making other
products or selling by means of using any process. "
If the petitioner is undertaking an activity that falls within the scope
of the said Entry, the petitioner is right in contending that he does
not require a licence under the Market Rules. But, if the activity of the
petitioner does not fall within the scope of the said Entry, having
regard to the definition of 'market' contained in the Kerala Panchayat
Raj Act, the petitioner has to obtain licence under the Market Rules.
As noted, the said question has not been addressed by the
WP(C).No.21151 OF 2020(T)
Panchayat.
5. That apart, it is seen that if the activity of the
petitioner is one that falls within the scope of the Rules, the
competent authority under the Rules to consider the application for
licence is the Secretary of the Panchayat and not the Committee of
the Panchayat. Ext.P9 decision of the Panchayat, in the
circumstances, is liable to be interfered with, at any rate, on that
sole ground.
In the aforesaid facts and circumstances, the writ petition
is disposed of quashing Ext.P9 resolution of the Panchayat and
directing the Secretary of the Panchayat to consider the question as
to whether the activity of the petitioner would fall within the scope of
Entry 45 of schedule 1 to the Rules. It is also directed that if it is
found that the activity of the petitioner is one that would fall within
the scope of Entry 45 of Schedule 1 to the Rules, appropriate orders
shall be passed on the application for licence under the Rules by the
Secretary in accordance with law. If it is found that the activity is one
that does not fall within the scope of Entry 45 of Schedule 1 to the
Rules, the petitioner would be free to apply for licence under the
Market Rules and in that event, the competent authority of the
Panchayat shall consider the same in accordance with law. The
directions aforesaid shall be complied with, after affording the
WP(C).No.21151 OF 2020(T)
petitioner as also respondents 6 and 8 an opportunity of hearing,
within 4 weeks from the date of receipt of a copy of the judgment.
Needless to say that the petitioner will be entitled to run his
business only after obtaining licence either under the Rules or under
the Market Rules. The challenge against Ext.P7 communication of the
third respondent is left open.
Sd/-
P.B.SURESH KUMAR, JUDGE.
PV
WP(C).No.21151 OF 2020(T)
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE CONSENT LETTER DATED
4.10.2019 ISSUED BY THE FIRTH
RESPONDENT ALONG WITH SITE LOCATION
PLAN
EXHIBIT P2 TRUE COPY OF THE SITE APPROVED BY THE
FIFTH RESPONDENT
EXHIBIT P3 TRUE COPY OF THE LETTER DATED 25.9.2019
ISSUED BY THE FOURTH RESPONDENT TO THE
SECOND RESPONDENT
EXHIBIT P4 TRUE COPY OF THE LETTER DATED 4.6.2020
FROM THE POLLUTION CONTROL BOARD
EXHIBIT P5 TRUE COPY OF THE APPLICATION DATED
8.6.20
EXHIBIT P5 (A) TRUE COPY OF THE CHELAN DATED 4.6.2020
EXHIBIT P6 TRUE COPY OF THE APPLICATION DATED
30.6.2020
EXHIBIT P7 TRUE COPY OF THE LETTER DATED 27.7.2020
EXHIBIT P8 TRUE COPY OF THE STOP MEMO DATED
9.9.2020
EXHIBIT P9 TRUE COPY OF THE ORDER DATED 13.10.2020
PASSED BY THE FIRST RESPONDENT.
RESPONDENT'S EXHIBITS:
EXHIBIT R2(A) TRUE COPY OF THE TAX RECEIPT DATED
3.4.2019 ISSUED BY VETTIKKATTIRI
VILLAGE TO HAMSA.
EXHIBIT R2(B) TRUE COPY OF THE TAX RECEIPT DATED
3.4.2019 ISSUED BY VETTIKKATTIRI
VILLAGE TO AMINA.
WP(C).No.21151 OF 2020(T)
EXHIBIT R2(C) TRUE COPY OF THE TAX RECEIPT DATED
3.4.2019 ISSUED BY VETTIKKATTIRI
VILLAGE TO RUKHIYA.
EXHIBIT R2(D) TRUE COPY OF THE POSSESSION CERTIFICATE
DATED 13.2.2019 ISSUED BY VETTIKKATTIRI
VILLAGE OFFICE TO HAMZA.
EXHIBIT R2(E) TRUE COPY OF THE POSSESSION CERTIFICATE
DATED 13.2.2019 ISSUED BY VETTIKKATTIRI
VILLAGE OFFICE TO RUKHIYA.
EXHIBIT R2(F) TRUE COPY OF THE POSSESSION CERTIFICATE
DATED 8.2.2019 ISSUED BY VETTIKKATTIRI
VILLAGE OFFICE TO RUKHIYA AND OTHERS.
EXHIBIT R2(G) TRUE COPY OF THE BUILDING PERMIT N.A1-
BA (101721)/2019 DATED 22.7.2019 ISSUED
BY THE SECOND RESPONDENT.
EXHIBIT R2(H) TRUE COPY OF THE DECISION NO.4(1) DATED
13.10.2020 OF THE PANDIKKAD GRAMA
PANCHAYAT.
EXHIBIT R6(a): TRUE COPY OF MASS REPRESENTATION DATED
26/07/2019 ADDRESSED TO THE CHIEF
MINISTER, KERALA, DISTRICT COLLECTOR,
DISTRICT MEDICAL OFFICER, ENVIRONMENTAL
ENGINEER OF THE POLLUTION CONTROL
BOARD, PANCHAYATH AND HUMAN RIGHTS
COMMISSION.
EXHIBIT R6(b): COPY OF THE PHOTOGRAPHS OF THE PROTEST
MARCH ORGANIZED BY THE ACTION
COMMITTEE.
EXHIBIT R8(a): TRUE COPY OF THE REPRESENTATION DATED
7/01/2021
