Jayaram and Bijimol v. Secretary, Aryad Grama Panchayath, Aryad, Komalapuram, Alappuzha District, and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:-** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **MONDAY, THE 19TH DAY OF DECEMBER 2016/28TH AGRAHAYANA, 1938** ## **W.P(C).No.35720 of 2016 (L)** ## **-----------------------------------** ## **PETITIONER(S):** - **-------------** **1. JAYARAM, AGED 45, S/O. K. PALANY, PRASANTHI, PATHIRAPPALLY P.O., ALAPPUZHA-688521.** **2. BIJIMOL, AGED 44, W/O. JAYARAM, PRASANTHI, PATHIRAPPALLY P.O., ALAPPUZHA-688521.** - **BY ADVS.SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P** **RESPONDENT(S):** - **--------------** **1. SECRETARY, ARYAD GRAMA PANCHAYATH, ARYAD, KOMALAPURAM, ALAPPUZHA DISTRICT, PIN -688006.** **2. THE PRESIDENT, ARYAD GRAMA PANCHAYATH, ARYAD, KOMALAPURAM, ALAPPUZHA, PIN -688006.** **3. THE DEPUTY DIRECTOR OF PANCHAYATHS, ALAPPUZHA, PIN -688001.** **4. THE ASSISTANT COMMISSIONER, FOOD SAFETY AND DESIGNATED OFFICER, ALAPPUZHA, PIN-688001.** **5. THE DISTRICT COLLECTOR, ALAPPUZHA, PIN -688001.** **6. THE DISTRICT POLICE CHIEF, ALAPPUZHA, PIN -688001.** **7. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.** **W.P(C).No.35720 of 2016 (L) - 2 -** **8. SRI.N. LALKUMAR, HEALH INSPECTOR, PUBLIC HEALTH CENTRE, ARYAD, ALAPPUZHA DISTRICT, PIN-688006.** **9. SRI.SANTHAN, JUNIOR HEALTH INSPECTOR, PUBLIC HEALTH CENTRE, ARYAD, ALAPPUZHA-688006.** **R1 & R2 BY ADV. SRI.G.PRIYADARSAN THAMPI R3 TO R7 BY SR.GOVT.PLEADER SRI.K.J. MANURAJ. R8 & R9 BY ADVS. SRI.M.D.SASIKUMARAN SRI.K.S.HARIHARAPUTHRAN SRI.GEORGE MATHEW SRI.SUNIL KUMAR A.G SRI.DIPU JAMES.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P(C).No.35720 of 2016 (L)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:-------------------------** **EXT.P1 TRUE COPY OF THE CERTIFICATE ISSUED TO THE IST PETITIONER DATED 21/03/2014. EXT.P2 TRUE COPY OF THE CERTIFICATE ISSUED TO THE 2ND PETITIONER DATED 21/03/2014. EXT.P3 TRUE COPY OF THE LICENCE ISUED BY THE IST RESPONDENT TO THE IST PETITIONER DATED 17/05/2014. EXT.P4 TRUE COPY OF THE LICENCE ISSUED BY THE IST RESPONDENT TO THE 2ND PETITIONER DATED 07/06/2014. EXT.P5 TRUE COPY OF THE LICENCE ISSUED BY THE 4TH RESPONDENT DATED 07/10/2015. EXT.P6 TRUE COPY OF THE RECEIPTS DATED 16/08/2016. EXT.P7 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONERS BEFORE THE 3RD RESPONDENT DATED 22/10/2016. EXT.P8 TRUE COPY OF THE APPLICATION DATED 25.10.2016 SUBMITTED BEFORE THE INFORMATION OFFICER OF THE 1ST RESPONDENT PANCHAYAT. EXT.P9 TRUE COPY OF THE INFORMATION DATED 23.11.2016, FURNISHED BY THE INFORMATION OFFICER OF THE 1ST RESPONDENT PANCHAYATH. EXT.P10 TRUE COPY OF THE LETTER DATED 17.11.2016 ISSUED BY THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTICORRUPTION BUREAU, ALAPPUZHA. EXT.P11 TRUE COPY OF THE COMMUNICATION DATED 14.11.2016 ISSUED BY THE 3RD RESPONDENT TO THE 2ND PETITIONER.** **RESPONDENT(S)' EXHIBITS:-------------------------** **EXT.R1(a) TRUE COPY OF THE NOTICE DATED 12.8.2016 ISSUED BY THE HEALTH INSPECTOR TO THE PETITIONERS. EXT.R1(b) TRUE COPY OF THE APPLICATION FOR LICENSE DATED 16.08.2016 FILED BY THE PETITIONERS BEFORE THE PANCHAYAT. EXT.R1(c) TRUE COPY OF THE MASS COMPLAINT DATED 01.10.2016 RECEIVED BY THE PANCHAYAT.** **- 2 -** **W.P(C).No.35720 of 2016 (L)** **EXT.R8(a) TRUE COPY OF LETTER DATED 08.08.2016. EXT.R8(b) TRUE COPY OF NOTICE DATED 12.08.2016. EXT.R8(c) TRUE COPY OF LETTER DATED 12.08.2016. EXT.R8(d) TRUE COPY OF APPLICATION FOR RENEWAL OF LICENSES DATED 16.08.2016 BY 1ST PETITIONER. EXT.R8(e) TRUE COPY OF APPLICATION FOR RENEWAL OF LICENSES DATED 16.08.2016 BY 1ST PETITIONER. EXT.R8(f) TRUE COPY OF INTIMATION DATED 09.10.2016. EXT.R8(g) TRUE COPY OF INTIMATION DATED 05.10.2016 WITH ENDORSEMENT. EXT.R8(h) TRUE COPY OF EXPLANATION DATED 07.11.2016. vku/[ true copy ]** ## K. Vinod Chandran, J ---------------------------------------- ## W.P.(C) No.35720 of 2016-L ----------------------------------------Dated this the 19[th] day of December, 2016 ## **JUDGMENT** The petitioner is aggrieved with the alleged high handed action of the Health Inspectors in having closed down the bakery and manufacturing unit carried on by the petitioners, who are husband and wife. 2. The petitioners had, admittedly, two licenses; one for sale of bakery items, evidenced by Exhibit P3 [1[st] petitioner] and another for manufacturing of bakery items, evidenced by Exhibit P4 [2[nd] petitioner]. The petitioners submit that they had made some modifications and, hence, did not function the bakery for some time. However, the said contention is belied by the fact that the petitioners were functioning on 12.08.2016 when the Health Inspectors had inspected the property of the petitioners. It is also seen that the petitioners were carrying on the activities in an unhygienic manner. - 2 - WP(C) No.35720 of 2016 3. A notice was issued, produced as Exhibit R8(b) by the Health Inspector. An intimation was also given to the Secretary, which is produced by the Secretary as Exhibit R1(a). Subsequent to that, the petitioners applied for a licence, as is seen from Exhibit R8(d) and R8(e). Admittedly the consideration was not made within the thirty days time as provided for in Section 236(3) of the Kerala Panchayat Raj Act, 1994 [for brevity “KPR Act”]. 4. The petitioners allege that on 21.10.2016, two Health Inspectors, along with the Secretary, President and Vice-President of the Panchayath came to the premises of the petitioners and closed down the unit. The Secretary and the Health Inspectors, impleaded as respondents 8 and 9, deny the same by separate counter affidavits. The Health Inspector submits that the locals made a complaint to the Secretary and there was a commotion created in the premises by the locals; on information of which the Health Inspectors along with the President, Vice President and Secretary went to the premises and again warned the petitioners against the business being carried on without - 3 - WP(C) No.35720 of 2016 license and in an unhygienic manner. There was no closure effected, is the contention. 5. The petitioners, however, still submits that the premises were locked down by the President and Secretary who had also taken away the key. In the teeth of the assertion made by the Secretary and the Health Inspector that no locking of the premises were effected by them, this Court cannot direct the Secretary to open the premises. However, the petitioner would be entitled to break open the lock and enter the premises, especially since the Panchayat does not have a case of the premises having been locked down by them. The petitioners' Counsel then submits that there is a claim for damages for the injury caused to the petitioners by reason of the high handed action of the respondents. For that the purpose, the petitioners would have to avail of the appropriate civil remedies; especially since the officials of the Panchayath deny the incident totally and in that context an adjudication on facts is necessitated. 6. The next contention is with respect to the continuance of the business, which, the petitioners contend, can - 4 - WP(C) No.35720 of 2016 be carried on based on the deeming provision under sub-section (3) of section 236 of the KPR Act. Even according to the Panchayat, Exhibits R8(d) and R8(e) applications were filed on 16.08.2016. An inspection is said to have been conducted as per the endorsement in the said application, on 22.09.2016, which clearly proves that there was no consideration made within the thirty days. Hence, the petitioners are entitled to the deeming provision under sub-section (3) of Section 236. 7. The Health Inspector has a contention that since there is a delay in applying for renewal of the permit, there could be no benefit of the deeming provision granted to the petitioner. The said contention is raised, since the license admittedly expired on 31.03.2015 and an application for renewal was made on 16.08.2016. The issue was considered on the basis of the provisions in the Panchayat Raj (issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996 (Kerala) by a learned Single Judge in _**Swapna Jestus K. v. Secretary, Pulpally Grama Panchayat and Another**_ **[2013 (1) KHC 450].** It was held that a conjoint reading of the Rules would show that the - 5 - WP(C) No.35720 of 2016 consequence of a delay in making an application would only be an additional fee. The Panchayat definitely would be entitled to insist for that additional fee or a penalty; but the renewal cannot be rejected nor can a demand be raised of the necessity for a fresh application for license. 8. The learned Government Pleader alertly points out that the petitioners' licence issued by Food Safety and Standards Authority has expired. In such circumstance, necessarily the petitioner has to obtain renewal of the license from the said authority before the business is commenced. This should not detain the Panchayat from issuing the D&O license, in the physical form since the same may be required for renewal of the licence by the Food Safety and Standards Authority. 9. In the circumstances, the Panchayat shall issue the D&O License within a period of two weeks from the date of receipt of a copy of this judgment, on the petitioner paying the additional fee or penalty as per the Rules for the delay occasioned. It is made clear that the petitioner shall not run the unit unless the license at Exhibit P5 is renewed. It is also clarified that if at all - 6 - WP(C) No.35720 of 2016 there is any complaint that the business is being carried on in an unhygienic manner, necessarily the Panchayat would be entitled to inspect the premises and issue necessary orders to avert the same; but, however, with proper notice to the petitioner and after affording a reasonable opportunity for hearing. The writ petition is disposed of with the above directions. No costs. **Sd/-** K.Vinod Chandran Judge vku/- [ true copy ]