M/S Brandstorm Events Management v. Secretary, Maneed Grama Panchayath

**CR** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 11TH DAY OF OCTOBER 2019 / 19TH ASWINA, 1941** ## **WP(C).No.25327 OF 2019(M)** ## **PETITIONER/S:** **M/S.BRANDSTORM EVENTS MANAGEMENT 3RD FLOOR, NORTH PARK BUILDING, ST.VINCENT ROAD, OPP. BHARATH PETROL PUMP, ERNAKULAM NORTH, KOCHI-682018, REPRESENTED BY ITS MANAGING PARTNER MR.BIJU A.B.** ## **BY ADV. SRI.S.NIKHIL SANKAR** ## **RESPONDENT/S:** **1 THE SECRETARY, MANEED GRAMA PANCHAYATH MANEED P.O., ERNAKULAM-682308. 2 MANEED GRAMA PANCHAYATH, MANEED P.O., ERNAKULAM-682308, REPRESENTED BY ITS SECRETARY. R1-2 BY ADV. SRI.SUNU P.JOHN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 25327/19 2 ## **CR** ## **JUDGMENT** Within the provisions of the Kerala Panchayath Raj (Issue of Licence to Factories, Trades, Entrepreneurship activities and other services) Rules ((herein after referred to as 'FTEOS Rules' for short) (earlier called Kerala Panchayath Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules), resides a particular Rule which enables the village Panchayath to specify the working time of a factory, workshop or a workplace, in which steam power, water power or other mechanical power or electricity is used and the operational contours of this provision has been called into question in this Writ Petition. 2. Even though the afore provisions have not been assailed in this Writ Petition, the petitioner has approached this Court impugning a condition imposed against it, asserting that the WPC 25327/19 3 procedural mandate of the said provisions had not been followed while doing so and therefore, that it be set aside. 3. The petitioner, which is stated to be a registered Firm, engaged in 'Events Management', has approached this Court impugning a condition imposed in Ext.P3 Trade Licence issued to them by the respondent-Maneed Grama Panchayath, as per which, they have been asked to confine the working time of their godown to 6 p.m. everyday. They say that this restriction in Ext.P3 is illogical, unnecessary and legally untenable; and consequentially prays that it be set aside. 4. The petitioner has also impelled an alternative argument that they do not require a Trade Licence to operate the godown under the provisions of the FTEOS Rules, there being no sale or trade activity carried on therein; and that they are only required to intimate the Local Authority that the building is being used WPC 25327/19 4 as a godown and thus that the impugned restriction is incompetent. 5. The learned Standing Counsel for the respondent-Maneed Grama Panchayath submits that a counter affidavit has been filed on record, wherein it has been stated that the petitioner's building is offending the applicable Building Rules and that the impugned condition has been imposed in Ext.P3 Licence only on account of objections from the neighbouring property owners. He says that, as is evidenced from Ext.R1(a) and R1(e), certain persons residing near the petitioner's godown had complained that on account of the continuous activity therein, including welding, cutting of iron sheets etc. and the movement of large lorries, entering and leaving the godown, causes severe noise pollution. He thus asserts that the building in question is being used by the petitioner not merely as a godown and that various other WPC 25327/19 5 activities are also being carried on therein and therefore, that they can operate it only under a valid licence. 6. The learned Standing Counsel adds that, subsequently, at the instance of a few Councillors of the Panchayath, the petitioner and the neighbouring property owners entered into Ext.R1(j) agreement, whereby they expressly agreed that they will only operate their godwon only until 6 p.m. each day. The learned Standing Counsel, therefore, prays that Ext.P3 be left uninterdicted. 7. In response, Sri.Nikhil Sankar, learned counsel for the petitioner, submits that a learned Division Bench of this Court has already considered the question whether the Trade Licence issued to a business can be incorporated with restrictive conditions merely on account of objections from other persons and that it has been declared unequivocally that such WPC 25327/19 6 restrictions are illegal and unlawful. He cites **Anilkumar M.K. and Others v. Aiswarya Rice Mill** **and Others [2015(5) KHC 891]** in substantiation of this; and then adds that Ext.R1(j) was, in fact, procured from his client by duress and force by certain elements with vested interests in the presence of two Councillors of the Panchayath. He thus asserts that Ext.R1(j) could not have been relied upon by the Panchayath to impose the impugned condition in Ext.P3, since it is illegal and therefore, unconstitutional. 8. When I consider the afore submissions, it is without doubt that, as rightly pointed out by Sri.Nikhil Sankar, in **Anilkumar** (supra), a learned Division Bench of this Court has emphatically declared as under: Merely for the reason that certain persons in the locality had objected to the functioning of the unit, by itself, should not be a reason for the Panchayath to restrict the unit from functioning day and night. They have to WPC 25327/19 7 verify and get necessary report from the Pollution Control Board as to whether the unit causes any sound pollution during night hours so that appropriate measures could be taken to abate the nuisance. 9. In the case at hand, it is evident that certain persons in the locality appear to have raised concerns or complaints against the functioning of the petitioner's godown, especially during nights and that they have alleged that the petitioner engages in cutting of iron sheets, welding etc. therein which cause loud sound; and that the movement of heavy vehicles in the night disturbs their sleep and causes unbearable nuisance. 10. It is thus without doubt, that when the Panchayat received such complaints, it was certainly incumbent upon them to verify whether the allegations made carried credibility and whether any specific action was required. However, instead of doing so, it is admitted WPC 25327/19 8 that certain members of the Panchayat, along with the persons who made the complaints, approached the petitioner and entered into an agreement, which the petitioner says was forced upon them. This course adopted by the Panchayat does not augur to the statutory systems; and if complaints of citizens are dealt with in this manner, then there would be no requirement for elaborate provisions in the Kerala Panchayat Raj Act, with respect to these matters in the first place. 11. It is thus indubitable that this is a case where the authorities of the Panchayat clearly abdicated their duties and adopted an extra-statutory mechanism and then tried to legitimise such by imposing conditions in the Trade Licence, which are not authorised by the FTEOS license Rules. 12. The pleadings on record in the counter affidavit filed by the Panchayat clearly WPC 25327/19 9 indicate that two Panchayat members resorted to 'mediation' and that solely based on the alleged agreement between the parties, the impugned conditions were incorporated in the Trade Licence; however, without asserting if such conditions were warranted or permissible as per law. All that the Secretary of the Panchayat has averred in the counter affidavit, filed on behalf of the respondents, is that under Rule 13 of the FTEOS Licence Rules, 'the Panchayat can issue necessary directions to control disturbance due to sound and vibration in a godown and manufacturing unit' ( _sic_ ). Even if this is accepted, there is no doubt that, going by the Rule referred above, the Panchayat can restrict the time of operation of a factory, workshop or workplace between 9.30 in the night and 5.30 in the morning and to only if the person conducting such activity refuses and wilfully defaults in complying with the earlier WPC 25327/19 10 directions issued by it for abatement of any nuisance that had been found to have been caused. 13. Irrefutably, even going by the afore provisions, a factory, workshop or workplace can be restricted, under the FTEOS Rules, from working only between 9.30 in the night to 5.30 in the morning and not from 6 p.m. to 6 a.m., as has been done in this case. Even for doing so, the Panchayat must first convince themselves that there is a nuisance on account of noise or vibration created any such factory, workshop or workplace and must have already issued necessary directions for abatement of such nuisance. It is only thereafter, if the concerned person refuses to comply with these directions, can they then restrict the operation time from 9.30 p.m. and 5.30 a.m. 14. However, what is exhibited in this case is not merely that such procedure had not been WPC 25327/19 11 followed, but that a collateral mechanism was adopted, where some members of the Panchayat allegedly mediated and obtained an agreement between the parties, the terms of which were then incorporated in to the Trade Licence. This procedure falls foul even the Rules relied upon by the Panchayat; and am, therefore, of the view that Condition No.20 in Exhibit P3, which is impugned herein, cannot find favour of this Court. 15. That said, there can be no doubt that if a particular activity causes nuisance or pollution, the competent Authority of the Panchayat can interfere appropriately, as per law. This does not, however, mean that such action can be taken without following due procedure and without explaining why it is warranted. The incorporation of a condition in the Trade Licence solely on account of unsubstantiated and unproven allegations cannot WPC 25327/19 12 obtain the imprimatur of this Court. Resultantly, I order this writ petition and vacate condition No.20 in Ext.P3 licence, which restricts the petitioner from operating its godown only until 6 p.m. everyday; and consequently, the petitioner will be entitled to operate the same on the strength of such licence _de hors_ this condition. I, however, also deem it appropriate to clarify that I have chosen not to answer the contention of the petitioner, that they do not require any Trade Licence to operate the godown, since they themselves admit that they have applied for and obtained Ext.P3 licence; and also because the pleadings on record indicate, though not having been proved conclusively, that the petitioner is engaged in certain activities in the building in question which have the potential of sound and air pollution. This is more so because, the petitioner does not WPC 25327/19 13 challenge the licence, but only a condition imposed therein. After I dictated this judgment, the learned Standing Counsel for the respondent-Maneed Grama Panchayath submits that, as has been stated in their counter pleadings, there are also allegations that the building in question has been constructed unauthorisedly and, therefore, prays that liberty may be reserved to his client to initiate appropriate action in terms of law. Though this is not an issue before me in this Writ Petition, I am certain that the Panchayath is free to initiate appropriate proceedings for such purpose, if so warranted, but after implicitly following the applicable provisions of law and after notifying the petitioner appropriately. ## **Sd/-** ## **DEVAN RAMACHANDRAN** RR ## **JUDGE** WPC 25327/19 14 ## APPENDIX ## PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE BROCHURE OF THE PETITIONER. - EXHIBIT P2 TRUE COPY OF THE CERTIFICATE ISSUED BY THE MEDICAL OFFICER DATED 14.03.2019. - EXHIBIT P3 TRUE COPY OF LICENSE DATED 25.03.2019 ISSUED BY 2ND RESPONDENT. - EXHIBIT P3 A TRUE COPY OF THE CONDITION STIPULATED IN EXHIBIT P4 LICENSE AS SL NO.20 RESTRICTING THE OPERATION OF PETITIONER'S GODOWN FROM 6.00 AM TO 6.00 PM. - EXHIBIT P4 TRUE COPY OF THE OWNERSHIP CERTIFICATE DATED 09.01.2017 ISSUED BY 2ND RESPONDENT TO THE PETITIONER. - EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 29.08.2019 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. - EXHIBIT P6 TRUE COPY OF THE ACKNOWLEDGEMENT RECEIPT DATED 29.08.2019 ISSUED BY 2ND RESPONDENT TO PETITIONER. - RESPONDENT'S/S EXHIBITS: EXHIBIT R1A TRUE COPY OF THE COMPLAINT DATED 08.04.2019 EXT.R1 B TRUE COPY OF LETTER DATED 10.04.2019 ISSUED TO THE ASST.ENGINEER BY R1 EXT.R1 C TRUE COPY OF REPORT DATED 12.06.2019 SUBMITTED BY ASST ENGINEER LSGD MANEED EXT.R1 D TRUE COPY OF THE LETTER DATED 10.04.2019 ISSUED BY THE R1 TO THE PETITINER WPC 25327/19 15 |EXT.R1 E|TRUE COPY OF THE COMPLAINT DATED| |---|---| ||11.09.2018 SUBMITTED BY 16 PERSONS| |EXT.R1 F|TRUE COPY OF THE OCMPLAINT DATED| ||25.09.2018| |EXT.R 1 G|TRUE COPY OF COMPLAINT SUBMIITEED BY| ||APPUKUTTAN DATED 16.06.2018| |EXT. R1 H|TRUE COPY OF THE INTIMATION LETTER| ||BEARING NO. A3 1726/19 ISSUED BY R1| ||TO SHO PIRAVOM POLICE STATION| |EXT. R1 I|TRUE COPY OF THE REPRESENTAION GIVEN| ||BY THE PETITIONER DATED 30.07.2019 TO| ||R1| |EXT. R1 J|TRUE COPY OF THE AGREEMENT DATED| ||16.06.2019| |EXT. R1 K|TRUE COPY OF THE LETTER DATED| ||16.09.2019 ISSUED BY R1 TO THE| ||PETITIONER| |EXT. R 1 L|TRUE COPY OF COMPLAINT DATED| ||18.09.2019|