Kerala High Court

Mannarkkad Municipality vs Abdul Gafoor on 31 August, 2022

W. A. No. 1306 of 2022
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             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
         THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                   &
             THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
 WEDNESDAY, THE 31ST DAY OF AUGUST 2022 / 9TH BHADRA, 1944
                         WA NO. 1306 OF 2022
 AGAINST THE ORDER WP(C) 15304/2022 OF HIGH COURT OF KERALA


APPELLANT/S:

     1       MANNARKKAD MUNICIPALITY
             MUNICIPAL OFFICE, MANNARKKAD,
             PALAKKAD-678582.
     2       THE SECRETARY,
             MANNARKKAD MUNICIPALITY, MUNICIPAL OFFICE,
             MANNARKKAD, PALAKKAD-678582.
     3       THE MUNICIPAL COUNCIL,
             MANNARKKAD MUNICIPALITY, MUNICIPAL
             OFFICE, MANNARKKAD, PALAKKAD-678582 REPRESENTED
             BY ITS CHAIRMAN.
             BY ADV P.R.VENKATESH(K/289/1990)


RESPONDENT/S:

     1       ABDUL GAFOOR
             AGED 42 YEARS, S/O. HAMZA, NAMBIYATH HOUSE,
             KUNTHIPPUZHA, MANNARKKAD COLLEGE P.O.,
             PALAKKAD-678582.
     2       THE ENVIRONMENT ENGINEER,
             DISTRICT OFFICE, KERALA STATE POLLUTION
             CONTROL BOARD, PALAKKAD-678014.
     3       STATE OF KERALA,
             REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL
             SELF GOVERNMENT DEPARTMENT, SECRETARIAT,
             THIRUVANANTHAPURAM - 695 001.
 W. A. No. 1306 of 2022
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OTHER PRESENT:


              SRI. K. T. THOMAS FOR R1
              SRI. T. NAVEEN, SC FOR R2
              SRI. K. P. HARISH, SR. GP.



       THIS    WRIT      APPEAL   HAVING     COME   UP    FOR    ADMISSION    ON
31.08.2022,      THE      COURT   ON   THE    SAME       DAY    DELIVERED    THE
FOLLOWING:
 W. A. No. 1306 of 2022
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                             JUDGMENT

Shaji P. Chaly, J.

This appeal is filed by the Mannarkkad Municipality, the

Secretary, and the Municipal Council, respondents 1 to 3 in W. P. (C)

No. 15304 of 2022 challenging the interim order passed by the learned

Single Judge dated 08.08.2022. The issues raised in the writ petition is

in respect of a grant made by the Municipal Council for starting a

private market subject to the compliance of the conditions prescribed

therein as per Section 460, and the consequential provisions of the

Kerala Municipality Act 1994, and according to the writ petitioners the

unreasonable conditions incorporated to issue the grant is the outcome

of the uncanalised power conferred on the Council under the Act,

1994, and therefore bad, illegal and unconstitutional. After considering

the rival submissions, the learned Single Judge has passed the

following interim order:

"10. As I mentioned earlier, if there is insufficient parking space and access to the market after starting the same, the Municipality can issue appropriate direction as per Section 463 of the Municipality Act. According to me, the stand taken by the Municipality in Ext.P19 cannot be accepted at all. Moreover, I perused Ext.P22 photographs of another market situated within W. A. No. 1306 of 2022

the jurisdiction of the Municipality in which these conditions are not insisted by the Municipality. I do not want to make any further observation about the reasons for rejecting the application by the Municipality in Ext.P19. According to me, these are not valid reasons. Let the market start and thereafter if there is any violation, the Municipality is free to issue notice in accordance to Section 463 of the Municipality Act. It is the duty of the Panchayat to encourage entrepreneurs instead of discouraging them by rejecting applications on technicalities and flimsy reasons. In the light of this detailed order, this writ petition itself can be disposed of. But a citizen who is fighting with nine rounds of litigation should be able to get the fruits of the litigation. Further delay will loose faith in the system to the citizens. Therefore this Court is issuing directions as an interim order with a posting date for reporting compliance.

Therefore there will be an interim direction to the 3 rd respondent to issue licence to the petitioner for conducting the market, dehors the reasons mentioned in Ext.P19 if the application is otherwise in order. The above licence should issued to the petitioner within two weeks from the date of receipt of this order."

2. It is thus challenging the legality and correctness of the

interim order the appeal is preferred.

3. Petitioner has filed the writ petition challenging Ext. P19

resolution of the Municipal Council dated 28.02.2022 whereby the writ W. A. No. 1306 of 2022

petitioner / 1st respondent was informed that he has not complied with

the directions for basic infrastructure to open and conduct a private

market; and Ext. P20 notice issued by the Secretary of the

Municipality dated 02.03.2022 rejecting the application for license

stating that the petitioner has not complied with the order passed under

Section 460(3) and 463 of the Kerala Municipality Act, 1994. Ext. P19

resolution of the Municipal Council dated 28.02.2022 is extracted

hereunder:-

"Mannarkkad Municipality

Resolution No. 16 in the ordinary meeting held on 28.02.2022

Sir,

I received the above notice on 10.1.2022. The matters required are only the repetition of what was stated by the Municipality, while rejecting my application. Against that I filed W.P.(C) No. 25817/2020 and as per judgment dated 30.9.2021, it was held that all reasons stated by the Municipality for rejecting my application are improper and a licence should be issued for two months. But without considering my application as directed in the judgment, the Municipality submitted W.A. No. 1555/2021 and the same was dismissed on 24.11.2021. When contempt of court proceedings was initiated before the High Court for non compliance of the judgment dated 30.9.2021, a notice of this nature has been issued. I submit my licence application W. A. No. 1306 of 2022

complying with all the legal formalities and procedures and for the last 3 years all amenities are provided as per the direction of the Pollution Control Board and the same is reported by the officials after the inspection and it is there in the file and the court has accepted that. Suppression of those facts, a fresh notice has been issued in this nature. The municipality has no authority to issue a notice of this nature. However, I gave the following reply to your notice:

Agenda:

16. As per the application submitted for fish market at Kunthipuzha Mannarkkad Municipality by Abdul Gafoor, Nambiath House, on inspection by the Municipality and the technical wing for rectifying the deficiencies notice was issued to him and as per his reply stating that they are rectified and the JHI in charge of the wall reports compliance and being placed before the council for its decision.

Decision:

Application for fish market had been considered in the light of both the judgment of the High Court. On the basis of the application for inspection, the council was authorized, inspection by the council following anomalies were found. Based on that notice dated 6.1.2022 was issued to the applicant through the Secretary. Reply was received on 28.2.2022 was that all the deficiencies have been rectified. Based on that, and also the complaint received from the people on 10.2.2022 and also on account of the fact that many remedial measures directed to be taken had not been taken yet and therefore for the following W. A. No. 1306 of 2022

reason the application can be considered later. Based on notice dated 6.1.2022 and your reply dated 20.1.2022, on reinspection of the proposed fish market site, it was found that you have not completely complied with all the conditions. Based on the complaints submitted by the local residents dated 7.2.2022, subject to the conditions stipulated below, the application for issuance of licence will be considered later. The following matters have not been complied by you:

1. Condition

2. There are no sufficient toilets, as required proportionately is very low. At least 8 toilets should be available properly secured with water facility. This is not in compliance of Sections 460 and

463. As per condition No.3 since the market is proposed to be conducted during night, lights are not sufficient. Since it is a densely populated place, there should be good lighting arrangement to the way to the market, has not been ensured. Sufficient lighting means at least 15 lamps with posts, which is not done.

3. As per condition No. 5 for getting better clarity of the boundaries, a sketch from the Taluk Surveyor has to be produced. Since one of the boundaries is Kunthipusha, this is mandatory. You have so far not produced it.

4. The first condition in the notice, vis. Compound wall provided is not sufficient. Since there are wells in the house nearby there are possibility of seepage of water in the well and during rainy season when there is inundation, the river water will overflow into the market area and will get mixed in the Wells in the houses W. A. No. 1306 of 2022

and also vise verse and contaminate and hence the 12 ft sheet is not sufficient. Pucca concrete wall is required.

5. As per the complaint of the residents in the locality for more than 10 mtrs there will be bad odors of fish resulting in the health hazards. Hence the distance stipulated by the Pollution Control of 10 mtrs is not sufficient. Hence to prevent emanation of odors from the place reaching the houses vending of fish has to be done and for that purpose the entire area has to be put up by a roof in concrete and a modern waste management measures are required. Hence as per Section 463 the open vending of fish cannot be permitted.

6. No space is earmarked for parking vehicles bringing fish. Since it is a wholesale selling market as more vehicles have to come, parking facility has to be provided. Only earth laden road is provided. Hence the vehicles carrying fish through this way of 80 mtrs and 16 ft have to be provided in concrete. This has not been done.

These are the things mentioned in Section 460, 461 and 463. Hence the application for licence can be considered after complying with the aforesaid conditions.

Chairman"

4. According to the appellants, Exts. P19 and P20 impugned in

the writ petition are appealable orders before the tribunal for Local

Self Government Institutions. That apart it is submitted that the learned W. A. No. 1306 of 2022

Single Judge did not consider the issue raised by the appellants that the

decision was taken by the Municipal Council taking into account all

attendant facts and circumstances in order to protect a source of

drinking water. It is also submitted that the learned Single Judge has

granted an interim order which ought not have been granted, since the

primary relief sought for by the petitioner is a challenge to the alleged

uncanalised power conferred on the Municipal Council under Sections

460 and 463 of the Kerala Municipality Act, 1994 to impose

conditions. That apart it is submitted that the decision was taken by the

Municipal Council after an elaborate discussion of the consequences

that can arise if a license for private market is granted without

imposing strict and effective conditions, for which power is conferred

under Section 460 (3) of Act 1994.

5. On the other hand, learned counsel appearing for the writ

petitioner submitted that the interim order was passed by the learned

Single Judge taking into account the unreasonable nature of the

impugned decision taken by the Municipal Council in Ext. P19 order,

and taking stock of the gamut of the issues, including the aspect of

several rounds of litigations fought by the writ petitioner; and therefore

no interference is required to the interim order. W. A. No. 1306 of 2022

6. It is also submitted that the Municipality has not introduced

any by-law or the State Government has not framed any rules to

implement the provisions of Section 460 and other consequential

provisions of the Act 1994. Arguments were also advanced relying

upon Section 567 of the Act 1994 dealing with the power of the

Council to make Bye-Laws and Regulations; and further that since

there is no regulation or bye- law the provisions of the Act

empowering the council to impose conditions at their whims and

fancies cannot be implemented.

7. We have heard learned counsel for the appellants Sri. P. R.

Venkatesh, learned Senior Government Pleader Sri. K. P. Harish for the

State, Sri. K. T. Thomas for the writ petitioner / 1 st respondent and Sri.

T. Naveen for the Environment Engineer, Kerala State Pollution

Control Board, Palakkad, the 2nd respondent, and perused the pleadings

and material on record.

8. The sole question emerges for consideration is whether any

interference is required to the impugned interim order passed by the

learned Single Judge. In order to properly appreciate and understand

the implications pointed out by the rival parties in the appeal, reliefs W. A. No. 1306 of 2022

sought for in the writ petitioner are extracted hereunder:-

"i. To issue appropriate writ, order or direction declaring that the power under section 460 and 463 of the Kerala Municipality Act, 1994 vested upon the Municipal Council is uncanalised and arbitrary and hence violative of Article 14 and 19 of the Constitution of India.

ii. To issue a writ of certiorari or other appropriate writ, order or direction quashing Ext-P19 decision of the Municipal Council and consequential Ext-P20 notice of the 2nd respondent.

iii. To issue a writ of mandamus or other appropriate writ, order or direction, directing respondents 2 and 3 to issue trade license to the petitioner for running fish market in building bearing Door No.3/1 (Old No.2/1215) in Sy.No.70/1, 70/2 and 94/4 of Mannarkkad-1 Village, Mannarkad Taluk, Palakkad."

9. Looking at the primary relief sought for by the writ petitioner,

it is clear that petitioner is seeking a declaration that the power

conferred under Sections 460(3) and 463 of the Kerala Municipality

Act, 1994 in the Municipal Council is uncanalised and arbitrary and

hence violative of Articles 14 and 19 of the Constitution of India. In

fact the 2nd relief is a consequential relief to the primary relief sought

for, to quash Ext. P19 decision of the Council and consequentially

Ext. P20 notice of the Secretary of the Municipality. W. A. No. 1306 of 2022

10. In our considered opinion, without first sorting out the issue

raised by the writ petitioner that the power conferred on the Municipal

Council is uncanalised and arbitrary to impose unreasonable

conditions, grant of a consequential relief by way of an interim order

may not be the correct approach to the issues raised by the rival

parties. This we say because, in order to issue any direction to grant

any license, first of all, the basic relief Nos. 1 and 2 sought for in the

writ petition ought to have been adjudicated. Moreover, the interim

relief granted directing to issue the license to the writ petitioner is as

good as a final relief, which, going by the settled position of law may

not have been granted as an interim relief.

11. In U.P. Junior Doctors' Action Committee v. B. Sheetal

Nandwani (Dr) [1992 Supp. (1) SCC 680] it was held that "it is a

well known rule of practice and procedure that at interlocutory stage a

relief which is asked for and is available at the disposal of the matter is

not granted".

12. In Shiv Shankar v. Board of Directors, U.P.SRTC [1995

Supp. (2) SCC 726] it was held as follows:-

"......... This anomalous situation was brought into W. A. No. 1306 of 2022

effect as a result of the interim order granted by the High Court. An interim order is granted by the court to protect the right or interest of a party approaching the court till the claim is adjudicated finally. It is temporary in nature and is made in the meantime. But the order of the High Court directing the respondents to absorb the appellants could not be termed as interim order. Such order could be granted only by way of final adjudication as a result of decision on merits."

13. In State of U.P. v. Ram Sukhi Devi [(2005) 9 SCC 733] it

was held by the Hon'ble Apex Court at paragraph No. 8 as follows:-

"8. To say the least, approach of the learned Single Judge and the Division Bench is judicially unsustainable and indefensible. The final relief sought for in the writ petition has been granted as an interim measure. There was no reason indicated by learned Single Judge as to why the government order dated 26-10-1998 was to be ignored. Whether the writ petitioner was entitled to any relief in the writ petition has to be adjudicated at the time of final disposal of the writ petition. This Court has on numerous occasions observed that the final relief sought for should not be granted at an interim stage. The position is worsened if the interim direction has been passed with stipulation that the applicable government order has to be ignored. Time and again this Court has deprecated the practice of granting interim orders which practically give the principal relief sought in the petition for no better reason than that of a prima facie case having been made out, without being concerned about W. A. No. 1306 of 2022

the balance of convenience, the public interest and a host of other considerations. No basis has been indicated as to why learned Single Judge thought the course as directed was necessary to be adopted. Even it was not indicated that a prima facie case was made out though as noted above, that itself is not sufficient. We, therefore, set aside the order passed by learned Single Judge as affirmed by the Division Bench and without expressing any opinion on the merits of the case we have interfered primarily on the ground that the final relief has been granted at an interim stage without justifiable reasons. Since the controversy lies within a very narrow compass, we request the High Court to dispose of the matter as early as practicable, preferably within six months from the date of receipt of this judgment."

14. In Raja Khan v. U. P. Sunni Central Waqf Board [(2011)

2 SCC 741] it was held that "it is well settled that by an interim order

the final relief should not be granted".

15. Matters, being so, we are of the opinion that the direction

issued by the learned Single Judge to the Municipal Council to issue a

license to the petitioner for conducting a market dehors the reasons

assigned, and the conditions incorporated in Ext. P19 is not a correct

approach in law, in the light of the issues raised by the rival parties,

which requires adjudication, and in the nature of relief sought for by

the writ petitioner, especially due to the fact that in the counter W. A. No. 1306 of 2022

affidavit filed by the appellants in the writ petition, stiff resistance is

made to the contentions advanced by the writ petitioner.