David Chacko v. Piravom Municipality and The Municipal Council

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** # **WEDNESDAY, THE 1ST DAY OF FEBRUARY 2017/12TH MAGHA, 1938** ## **WP(C).No. 551 of 2017 (T)** **---------------------------------------** **PETITIONER(S) : -------------------------** **DAVID CHACKO, AGED 50 YEARS, S/O.CHAKKOCHAN, CHEMBAKAPARAMBIL HOUSE, KARIKKOD P.O, PERUVA.** **BY ADV. SRI.ALIAS M.CHERIAN** **RESPONDENT(S) : ----------------------------** |**1.**|**PIRAVOM MUNICIPALITY,**| |---|---| ||**PIRAVOM P.O, ERNAKULAM DISTRICT,**| ||**PIN.686 664, REPRESENTED BY ITS SECRETARY.**| |**2.**|**THE MUNICIPAL COUNCIL**| ||**PIRAVOM MUNICIPALITY, PIRAVOM P.O.,**| ||**ERNAKULAM DISTRICT, PIN. 686 664,**| ||**REPRESENTED BY ITS CHAIRMAN.**| **BY ADV. SRI.GEORGE SEBASTIAN, S.C** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01-02-2017, ALONG WITH W.P(C).NO. 552 OF 2017 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **WP(C).No. 551 of 2017 (T)** ## **--------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** - **P1 TRUE COPY OF LICENSE NO.182/03-04 DATED 29.11.2003.** - **P2 TRUE COPY OF LICENSE NO.A5-300/15 DATED 11.09.2015.** - **P3 TRUE COPY OF DEALER'S LICENSE NO.08/15-16-DLD/BC 3560/15 DATED 07.09.2015.** - **P4 TRUE COPY OF CONSENT NO.PCB/EKM/DO2/ICO-R1/227/2015 DATED 15.06.2015.** - **P5 TRUE COPY OF REPORT DATED 05.01.2012.** - **P6 TRUE COPY OF REPORT DATED 01.02.2012.** - **P7 TRUE COPY OF REPORT DATED 03.02.2012.** - **P8 TRUE COPY OF ORDER NO.L5-61965/2008 DATED 25.03.2013.** - **P9 TRUE COPY OF MINUTES OF THE MEETING DATED 30.08.2013.** - **P10 TRUE COPY OF MINUTES OF THE MEETING DATED 06.05.2014.** - **P11 TRUE COPY OF MINUTES OF THE MEETING DATED 23.07.2015.** - **P12 TRUE COPY OF ORDER NO.A5-8883/15 DATED 01.04.2016.** - **P13 TRUE COPY OF OBJECTION DATED 16.04.2016.** - **P14 TRUE COPY OF ORDER NO.A5-8883/2015 DATED 25.08.2016.** - **P15 TRUE COPY OF MEMORANDUM OF APPEAL NO. 815 OF 2016.** - **P16 TRUE COPY OF WRITTEN STATEMENT IN APPEAL NO.815/2016.** - **P17 TRUE COPY OF COMMON ORDER DATED 20.12.2016 IN APPEAL NO.815 OF 2016.** - **P18 TRUE COPY OF SUB COMMITTEE REPORT DATED NIL.** ## **RESPONDENT(S)' EXHIBITS :** ## **NIL** ## **//TRUE COPY//** Msd. **P.A.TO JUDGE.** ## **A.K.JAYASANKARAN NAMBIAR, J.** **................................................................................. W.P.(C).No.551 of 2017, W.P.(C).No.552 of 2017, W.P.(C).No.560 of 2017, W.P.(C).No.595 of 2017, W.P.(C).No.606 of 2017, W.P.(C).No.630 of 2017, W.P.(C).No.631 of 2017, W.P.(C).No.632 of 2017, W.P.(C).No.695 of 2017 & W.P.(C).No.697 of 2017** **.................................................................................. Dated this the 1[st] day of February, 2017** ## **J U D G M E N T** As all these writ petitions involve a common issue, they are taken up together for consideration and disposed by this common judgment. For the sake of convenience, the reference to facts and exhibits is from W.P.(C).No.551 of 2017. 2. The petitioners in all these writ petitions are persons, who were running brick manufacturing units within the limits of the Piravom Municipality. It is not in dispute that they had obtained the necessary licenses for running the brick manufacturing units and that the said licenses were valid till 31.03.2016. Prior to the expiry of the licenses for the year 2015-2016, the petitioners preferred applications seeking renewal of their licenses for the ensuing year namely, 2016-2017. The said applications preferred by the petitioners were rejected by a common order dated -2- W.P.(C).No.551 of 2017 and con.cases 01.04.2016 (produced as Ext.P12 in W.P.(C).No.551 of 2007), stating that the Municipal Council had already taken a decision not to renew the licenses of the brick manufacturing units. The said order also directed the petitioners not to continue with the activity of brick manufacturing in their respective premises. The petitioners were also asked to submit their objections in the matter within 15 days from the date of receipt of the order. It might immediately be noticed that, if Ext.P12 order was to operate as a final order, then there was no requirement for the respondent Municipality to have indicated in the said order that the petitioners could approach the Municipality within 15 days from the date of receipt of the order with their objections, if any, to the contents of the said order. Coupled with the fact that the Municipal Council decision, that is referred to in Ext.P12 order, was one that was taken without any intimation to the petitioners and without hearing them prior to the said decision, the latter portion of Ext.P12 order, which required the petitioners to submit their objections, if any, to the contents of Ext.P12 order, can only be seen as one that was intended to grant a post decisional hearing to the petitioners, in respect of the decision of the Municipal Council -3- W.P.(C).No.551 of 2017 and con.cases not to renew the license of the petitioners for conducting the brick manufacturing units. The facts in the writ petition would indicate that, immediately on receipt of Ext.P12 order, the petitioners preferred their objections before the respondent Municipality. In W.P(C).No.551 of 2017 and W.P(C).No.595 of 2017, the replies preferred by the petitioners therein clearly refer to the common order dated 01.04.2016 that was passed by the Municipality, and seek a renewal of the license that was earlier issued to the petitioners therein. In the other writ petitions, the replies submitted by the petitioners therein to the common order dated 01.04.2016 indicate that a request was made therein for the issuance of No Objection Certificates (NOC) by the respondent Municipality, that would have enabled the petitioners therein to continue with their brick manufacturing activities. While the reference in the latter replies is to an NOC, viewed in the statutory scheme of things, this can only be taken as a request for renewal of the licenses that had already been issued to the petitioners in the earlier year. At any rate, by separate orders dated 25.08.2016 and 27.07.2016 respectively, the respondent Municipality rejected the request of the petitioners for renewal of license/issuance of -4- W.P.(C).No.551 of 2017 and con.cases NOC. Immediately on receipt of the said orders from the respondent Municipality, the petitioners approached the Tribunal for Local Self Government Institutions through appeals preferred in terms of the Municipalities Act and Rules. The said appeals were heard together, and by a common order dated 20.12.2016 (produced as Ext.P17 in W.P(C).No.551 of 2017), the Tribunal dismissed the appeals preferred by the petitioners herein as belated. In all these writ petitions, the common order of the Tribunal referred above is impugned, inter alia, on the contention that the Tribunal ought not to have seen the appeals preferred by the petitioners as belated since they were bona fide pursuing the matter before the respondent Municipality in the belief that the order dated 01.4.2016 was only a provisional one that would be finalised only after considering their objections. 3. I have heard the learned counsel appearing for the petitioners in all these writ petitions, the learned Standing counsel for the respondent Municipality and the learned counsel for the additional contesting respondents in W.P.(C).No.631 of 2017 and W.P.(C).No.606 of 2017. -5- W.P.(C).No.551 of 2017 and con.cases 4. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that, in the instant case, the common order dated 01.04.2016 of the respondent Municipality, while rejecting the request of the petitioners for renewal of their license, indicated therein that the licenses could not be renewed since the Municipal Council had already taken a decision not to renew the existing licenses of brick manufacturing units. It is significant to note that the said decision of the Municipal Council was not preceded by any notice issued to existing license holders, and further, was taken without hearing the said license holders. Be that as it may, the common order passed by the Secretary of the respondent Municipality also required the petitioners to file their objections, if any, to the contents of the said order, within 15 days from the date of receipt of the same. In my view, the said direction issued in the common order to the petitioners, to file their objections within a specified time frame, clearly indicated that it was the decision of the respondent Municipality to consider the objections of the petitioners, to the proposal that was confirmed by the Municipal -6- W.P.(C).No.551 of 2017 and con.cases Council, not to renew the license of the petitioners for future periods. It is not in dispute that, pursuant to the common order dated 01.04.2016, the petitioners approached the respondent Municipality through separate replies, which are dated 12.04.2016 and 16.04.2016 respectively. The said replies were thereafter considered by the Secretary of the respondent Municipality and were rejected by separate orders dated 27.07.2016 and 25.08.2016 respectively. As already noticed, the petitioners had preferred the appeals to the Tribunals against the last mentioned orders dated 27.07.2016 and 25.08.2016. 5. On a consideration of the sequence of events in the instant cases, I am of the view that, the period between 12.04.2016/ 16.04.2016, when the petitioners herein had preferred a reply to the common order dated 01.04.2016, to the Secretary of the respondent Municipality, and 27.07.2016/25.08.2016, the dates on which the orders rejecting the representations of the petitioners were passed by the Secretary of the respondent Municipality, can be viewed as the period spent by the petitioners in bona fide pursuit of the matter before the respondent Municipality. If that -7- W.P.(C).No.551 of 2017 and con.cases be the case, in view of the decision of the Supreme Court in **M.P.steel Corporation v. Commissioner of Central Excise (2015 (7) SCC 58),** that recognises that the principles of Section 14 of the Limitation Act can also be applied to adjudication before quasi-judicial authorities and Tribunals, the aforesaid period, when the petitioners were before the Secretary of the respondent Municipality awaiting an adjudication on the representation filed by them against the common order dated 01.04.2016, ought to be excluded while computing the period of limitation for the purposes of the appeals preferred by the petitioners before the Tribunal for Local Self Government Institutions. If the said period is excluded, then I find that, the appeals preferred before the Tribunal for Local Self Government Institutions, by the petitioners herein, were within time and the Tribunal ought to have considered the case of the petitioners on merits. In this connection, it might also be relevant to note that the Tribunal has already entertained revision petitions filed by other licensees, similarly placed as the petitioners herein, whose licenses were also not renewed by the respondent Municipality. The only -8- W.P.(C).No.551 of 2017 and con.cases difference in those cases was that those licensees had approached the Municipal Council, against the common order dated 01.04.2016 of the Secretary of the respondent Municipality, and in their case, the Municipal Council dismissed the appeals, and it was against the said orders of the Municipal Council that they were before the Tribunal through the revision petitions preferred by them. It is understood that the said revision petitions have been disposed by the Tribunal by remanding the matter to the Secretary of the respondent Municipality. Under the circumstances, I am of the view that no prejudice will be caused to the respondents, if the petitioners in the present writ petitions are also permitted to advance their contentions with regard to the merits of the order dated 01.04.2016 of the respondent Municipality, before the very Tribunal, that has already considered and disposed revision petitions filed by other applicants, similarly placed as the petitioners herein. I, therefore, quash the common order dated 20.12.2016 passed by the Tribunal for Local Self Government Institutions, Trivandrum, in all these writ petitions, and direct the Tribunal to restore the appeals on file, and thereafter, consider and dispose the appeals on merits after hearing the petitioners and -9- W.P.(C).No.551 of 2017 and con.cases respondents before it. The Tribunal shall pass fresh orders as directed within a period of one month from the date of receipt of a copy of this judgment. I make it clear that, I have not expressed any view on the merits of the case of the petitioners with regard to the legality of the decisions of the respondent Municipality and the parties are free to raise all contentions in relation to the said issue before the Tribunal. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/1.02.17