Kerala High Court
K.U.Haneefa vs Mananthavady Municipality on 10 February, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 10TH DAY OF FEBRUARY 2023 / 21ST MAGHA, 1944
WP(C) NO. 9962 OF 2021
PETITIONER:
K.U.HANEEFA
AGED 39 YEARS
S/O. UMMER, KANDANGIL HOUSE,
ERUMATHERU POST, MANANTHAVADY 670 645,
WAYANAD DISTRICT.
BY ADVS.
KRISHNA PRASAD. S
SMT.SINDHU S KAMATH
SMT.ROHINI NAIR
RESPONDENTS:
1 MANANTHAVADY MUNICIPALITY
REPRESENTED BY ITS SECRETARY, MANANTHAVADY,
WAYANAD DISTRICT 670 645
2 THE SECRETARY,
MANANTHAVADY MUNICIPALITY, MANANTHAVADY,
WAYANAD DISTRICT 670 645
3 THE ASSISTANT ENGINEER,
MANANTHAVADY MUNICIPALITY, MANANTHAVADY,
WAYANAD DISTRICT 670 645
4 STATE OF KERALA
REPRESENTED BY PRINCIPAL SECRETARY,
DEPARTMENT OF LOCAL SELF GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM 695 001
BY ADV SRI.SANTHARAM.P
SMT. DEEPA NARAYANAN, SR. GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 10.02.2023, ALONG WITH WP(C).34563/2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.9962/2021 & 34563/2022
:2:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 10TH DAY OF FEBRUARY 2023 / 21ST MAGHA, 1944
WP(C) NO. 34563 OF 2022
PETITIONER:
RASHEED KOROKKARAN,
AGED 44 YEARS
S/O. LATE AHAMMED, KOROKKARAN HOUSE,
MYSORE ROAD, MANANTHAVADY,
WAYANAD DISTRICT, PIN-670 645.
BY ADVS.
SHIJU VARGHESE
T.M.MANU
SACHU THOMAS
RESPONDENTS:
1 THE MANANTHAVADY MUNICIPALITY,
MANANTHAVADY, WAYANAD DISTRICT,
PIN-670 645, REPRESENTED BY ITS SECRETARY.
2 THE MUNICIPAL COUNCIL,
MANANTHAVADY MUNICIPALITY,
MANANTHAVADY, WAYANAD DISTRICT,
PIN-670 645, REPRESENTED BY ITS CHAIRMAN.
3 THE SECRETARY, MANANTHAVADY MUNICIPALITY,
MANANTHAVADY, WAYANAD DISTRICT,
PIN-670 645.
BY ADV S.M.PRASANTH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 10.02.2023, ALONG WITH WP(C).9962/2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.9962/2021 & 34563/2022
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N. NAGA/RESH, J.
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W.P.(C) No.9962 of 2021 and 34563 of 2022
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Dated this the 10th day of February, 2023
JUDGMENT
~~~~~~~~~
Both these writ petitions relate to denial of licence
to the petitioners to conduct fish stalls. The petitioner in
W.P.(C) No.9962/2021 states that he is a fish vendor and a
member of Kerala Fishermen's Welfare Fund Board. The
petitioner's father owned a small shop room near the
Erumatheru Market. The petitioner submitted application for
issuance of a licence for starting a fish stall in the shop room.
The Municipal authorities rejected the application stating that
licence cannot be granted since there is a market belonging
to the Municipality. The petitioner preferred an appeal
against the said Ext.P1 decision.
W.P.(C) No.9962/2021 & 34563/2022
2. In the meanwhile, the 2nd respondent-Secretary
issued a notice alleging that he is carrying on unauthorised
construction of a building and the petitioner's mother was
required to demolish the alleged illegal construction. In W.P.
(C) No.37055/2019, this Court directed the respondents to
complete the issuance of licence and consider the
application for regularisation of the construction. The
Municipal Council took a stand that it cannot grant licence for
Fish Stalls anywhere else than in the Municipal Market.
3. The petitioner would urge that the petitioner has
submitted all necessary documents including Consent from
the Pollution Control Board while applying for Trade Licence.
The respondents have not communicated their decision on
the application of the petitioner within 30 days. Therefore,
the petitioner has a deemed licence. Ext.P3 order rejecting
the petitioner's application for licence has no legal sanctity.
The respondents 1 to 3 are estopped from imposing a ban of
sale against the petitioner since the Municipality has agreed
before this Court that the restriction will not be applicable to
W.P.(C) No.9962/2021 & 34563/2022
the petitioner. The petitioner therefore seeks to declare that
he can continue his business on the basis of Deemed
Licence.
4. The petitioner in W.P.(C) No.34563/2022
submitted Ext.P3 application for licence to conduct trade in
fish and chicken and other meats. By Ext.P5, the 1 st
respondent-Municipality permitted the petitioner to conduct
sale of chicken but refused permission for trade in other
items. The petitioner approached this Court filing W.P.(C)
No.10924/2021. This Court directed the 2 nd respondent-
Secretary to consider the petitioner's Ext.P7 representation.
The 2nd respondent, however, refused Trade Licence to the
petitioner holding that the building is situated within a radius
of 3 Km. from the public market. The petitioner states that
the reasoning extended in Ext.P11 communication is illegal
and the law declared by this Court.
5. The petitioner would argue that as per Section 233
of the Kerala Panchayat Raj Act and rule 12 of the Kerala
Panchayat Raj (Issue of Licence to Factories, Trades,
W.P.(C) No.9962/2021 & 34563/2022
Entrepreneurship Activities and other Services) Rules 1996,
the respondents have no authority to deny licence to the
petitioner. The Government of Kerala has issued a GO
dated 29.07.2021 directing that if an application for licence is
filed along with prescribed documents, the Panchayat shall
issue licence after verifying the documents related to
Occupancy of the building. According to the petitioner,
rejection of the petitioner's application for licence is intended
to satisfy some other persons having vested interest in the
matter. Ext.P11 order is therefore liable to be set aside and
the respondents are compellable to reconsider Ext.P3
application for licence submitted by the petitioner.
6. Respondents 1 and 2 filed counter affidavit in
W.P.(C) No.9962/2021. The respondents submitted that on
the basis of certain complaints, the Health Inspector found
that the petitioner is having the fish stall in an unhygienic
manner. Therefore, a notice was issued on the petitioner.
To Ext.P7 application of the petitioner, Ext.P9 show-cause
was issued. Therefore, there is no question of any deemed
W.P.(C) No.9962/2021 & 34563/2022
licence accruing on the petitioner.
7. The respondents submitted that in exercise of
powers under Section 567 of the Kerala Municipality Act, the
Municipality has power to frame bye-laws. As per Ext.R1(c)
bye-laws framed by the Municipality, no fish trading is
permissible within a radius of 2 Km. of the Municipal Market.
The petitioner has not challenged the said bye-law. In the
circumstances, the respondents are compellable to issue
licence in favour of the petitioner.
8. The respondents filed a counter affidavit in W.P.
(C) No.34563/2022 also. The respondents contended that in
view of the bye-laws framed by the Municipality, no licence
can be granted to private persons for running fish stall within
3 Km. radius of the public market run by the Municipality.
9. I have heard the learned counsel for the petitioner
and the learned Standing Counsel representing the
respondents in both the writ petitions.
10. As regards W.P.(C) No.9962/2021, the proposed
fish stall of the petitioner is within close proximity of the
W.P.(C) No.9962/2021 & 34563/2022
Municipal Market. Aggrieved by the denial of Trade Licence,
the petitioner had approached this Court earlier filing
Contempt of Court Case (C) No.1413/2020. In Ext.P3 order
in Contempt of Court Case (C) No.1413/2020, this Court
recorded that the issue regarding the distance from the
municipal Market has been agreed by the respondents not to
be pressed against the petitioner. Ext.P3 order has become
final. The respondents therefore cannot deny Trade Licence
to the petitioner for running fish stall as the respondents have
clearly agreed not to press the distance rule as against the
petitioner. Ext.P3 order would be an estoppel as against the
respondents from insisting on distant rule.
11. The petitioner in W.P.(C) No.34563/2022 has
been denied Trade Licence on the ground that the proposed
Fish Stall falls within 3 Km. of the Municipal area and in view
of the bye-laws framed by the Municipality, a licence cannot
be granted to the petitioner. Ext.R1(c) (in W.P.(C)
No.9962/2021) is the bye-laws framed by the Municipality.
Clause 82 of Ext.R1(c) states that since a fish market is
W.P.(C) No.9962/2021 & 34563/2022
functioning under the Municipality, no wholesale or retail
business in fish can be permitted within 3 Km. from the
Municipal limits. Clause 83 speaks of 3 Km. from the
Municipal limits. The 1 st respondent-Municipality will not be
justified in regulating fish sale beyond its territorial limits.
Rejection of the petitioner's application for running a Fish
Stall based on the bye-laws dated 15.04.2021 therefore
cannot stand the scrutiny of law.
12. The orders impugned in W.P.(C) No.9962/2021
and W.P.(C) No.34563/2022 are set aside. The Secretary to
the Municipality is directed to reconsider the application for
Trade Licence made by the petitioners and pass appropriate
orders thereon within a period of four weeks and to grant
licences to the petitioners if they are otherwise found eligible.
Writ petitions are disposed of as above.
Sd/-
N. NAGARESH, JUDGE
aks/25.01.2023
W.P.(C) No.9962/2021 & 34563/2022
APPENDIX OF WP(C) 9962/2021
PETITIONER'S EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE COMMUNICATION SENT
BY THE MUNICIPALITY DATED 31-05-2019
EXHIBIT P2 A TRUE COPY OF THE MEMORANDUM OF
CONT.CASE(C) NO. 1413 OF 2020 DATED
22-09-2020
EXHIBIT P3 A TRUE PHOTOCOPY OF THE INTERIM ORDER
DATED 15-10-2020
EXHIBIT P4 A TRUE PHOTOCOPY OF THE OCCUPANCY
CERTFICATE ISSUED BY THE MANANTHAVADY
MUNICIPALITY DATED 30-11-2020
EXHIBIT P5 A TRUE COPY OF THE JUDGEMENT IN
CONT.CASE (C) NO. 1413 OF 2020 DATED
02-12-2020
EXHIBIT P6 A TRUE COPY OF THE LICENCE ISSUED TO
THE PETITIONER DATED 03-12-2020
EXHIBIT P7 A TRUE COPY OF THE APPLICATIONS DATED
03-03-2021 FILED FOR RENEWAL OF
LICENSE ALONG WITH ITS RECEIPT.
EXHIBIT P8 A TRUE COPY OF THE LETTER ISSUED BY
THE 2ND RESPONDENT DATED 17-3-2021
EXHIBIT P9 A TRUE COPY OF THE NOTICE ISSUED BY
THE 2ND RESPONDENT DATED 18-3-2021
EXHIBIT P10 A TRUE COPY OF THE REPLY NOTICE
SUBMITTED BY THE PETITIONER DATED 23-
03-2021
EXHIBIT P11 A TRUE COPY OF THE NOTICE ISSUED TO
THE PETITIONER DATED 26-3-2021
EXHIBIT P12 A TRUE COPY OF THE WRITTEN SUBMISSION
DATED 30-03-2021
EXHIBIT P13 A TRUE COPY OF THE ORDER REJECTING THE
APPLICATION FOR RENEWAL OF LICENCE
DATED 08-04-2021
RESPONDENT'S EXHIBITS
R1(a) COPY OF REPORT SUBMITTED BY THE HEALTH
INSPECTOR OF THE MUNICIPALITY DTD 20.2.2021.
W.P.(C) No.9962/2021 & 34563/2022
R1(b) COPY OF NOTE SHEET OF 1ST RESPONDENT DATED
30.03.2021.
R1(c) COPY OF BYE LAW ON TENDER/AUCTION/FISH VENDING
PASSED BY THE 1ST RESPONDENT.
R1(d) COPY OF COMPLAINT FILED BY SOME OF THE VENDORS
IN THE MUNICIPAL MARKET BEFORE 1ST RESPONDENT DATED
9.3.2021.
W.P.(C) No.9962/2021 & 34563/2022
APPENDIX OF WP(C) 34563/2022
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE TECHNICAL REPORT
SUBMITTED BY THE PETITIONER BEFORE THE
KERALA STATE POLLUTION CONTROL BOARD.
Exhibit P2 TRUE COPY OF THE CONSENT TO OPERATE
ISSUED BY THE KERALA STATE POLLUTION
CONTROL BOARD DATED 17.11.2020.
Exhibit P3 TRUE COPY OF THE APPLICATION DATED
1.3.2021 SUBMITTED BY THE PETITIONER
BEFORE THE RESPONDENTS.
Exhibit P4 TRUE COPY OF THE INFORMATION ISSUED
UNDER THE RTI ACT BY THE 3RD
RESPONDENT DATED 9.2.2021.
Exhibit P5 TRUE COPY OF THE INTIMATION ISSUED BY
THE 3RD 24 RESPONDENT TO THE
PETITIONER DATED 9.3.2021.
Exhibit P6 TRUE COPY OF THE JUDGMENT DATED
16.11.2019 IN W.P.(C) NO.30755/2019.
Exhibit P7 TRUE COPY OF THE REPRESENTATION
SUBMITTED BEFORE THE 2ND RESPONDENT BY
THE PETITIONER DATED 7.3.2021.
Exhibit P8 : TRUE COPY OF THE WRIT PETITION
(CIVIL) NO. 10924/2021 DATED WITHOUT
EXHIBITS.
Exhibit P9 TRUE COPY OF THE JUDGMENT IN W.P.(C)
NO.10924/2021 DATED 4.5.2021.
Exhibit P10 TRUE COPY OF THE COVERING LETTER DATED
9.6.2021.
Exhibit P11 TRUE COPY OF THE COMMUNICATION BEARING
NO.H14241/2021 DATED 4.10.2021 ISSUED
BY THE CHAIR PERSON OF THE 1ST
RESPONDENT TO THE PETITIONER.
Exhibit P12 PHOTOGRAPH SHOWING THE FUNCTIONING OF
THE SHOP ROOM NEAR THE MUNICIPAL
MARKET.
