Rema Prakasan v. Mala Block Panchayat, Aloor Grama Panchayat and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **TUESDAY, THE 14TH DAY OF JULY 2020 / 23RD ASHADHA, 1942** ## **WP(C).No.11313 OF 2020(L)** ## **PETITIONER/S:** **REMA PRAKASAN AGED 51 YEARS THOOYATHA HOUSE, W/O.PRAKASAN, VALLAKUNNU, KALLETTUMKKARA, CHALAKUDY, THRISSUR-680683.** **BY ADV. SMT.JAYASREE K.P.** ## **RESPONDENT/S:** - **1 MALA BLOCK PANCHAYAT MALA BLOCK PANCHAYAT OFFICE, MALA, KURUVILASSERY-680732, REPRESENTED BY ITS SECRETARY.** - **2 SECRETARY, MALA BLOCK PANCHAYAT, MALA BLOCK PANCHAYAT OFFICE, MALA, KURUVILASSERY-680732,** - **3 ALOOR GRAMA PANCHAYAT, KALLETTUMKKARA, THRISSUR-680683, REPRESENTED BY ITS SECRETARY.** - **4 SECRETARY, ALOOR GRAMA PANCHAYAT, KALLETTUMKKARA, THRISSUR-680683.** - **5 THE ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE. THRISSUR IS IMPLEADED AS ADDITIONAL R5 AS PER ORDER DATED 14-072020 IN W.P.(C) 11313/2020** **R1-2 BY ADV. SRI.K.S.BHARATHAN R1-2 BY ADV. SRI.ABEL ANTONY** **R1-2 BY ADV. SRI.CHRISTINE MATHEW** - **R3-4 BY SRI.PHILIP T.VARGHESE, SC, ALOOR GRAMA PANCHAYAT** ## **OTHER PRESENT:** ## **SRI.T.NAVEEN,SC R5** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ::2:: **WP(C).No.11313 OF 2020(L)** ## **ALEXANDER THOMAS, J** . ----------------------------- W.P(C).No.11313 Of 2020 --------------------------------Dated this the 14[th] day of July, 2020. ## **J U D G M E N T** The prayers in the above Writ Petition (Civil) are as follows: - “ _(i). issue a writ in the nature of certiorari or any other appropriate writ, direction or order for quashing Exhibit P8 notice issued by respondent no. 1;_ - _(ii). issue a writ in the nature of mandamus or any other appropriate writ, direction or order directing respondent no. 1 and 2 to renew Exhibit P6 agreement in a time bound manner;_ - _(iii). declare that petitioner has obtained deemed license from 3rd respondent or in the alternative to issue a writ in the nature of mandamus or any other appropriate writ, direction or order directing the respondent no. 3 and 4 to consider Exhibit P2 application of the petitioner for renewal of licence in a time bound manner and grant the same;_ - _(iv). issue such other writ, direction or order as deemed fit.”_ 2. Heard Smt.K.P.Jayasree, learned counsel appearing for the petitioner, Sri.K.S.Bharathan, learned counsel appearing for respondents 1 & 2 (Mala Block Panchayath), Sri.Philip T.Varghese, learned counsel appearing for respondents 3 & 4 (Aloor Grama Panchayath), and Sri.T.Naveen, learned Standing Counsel appearing for the additional 5[th] respondent. 3. The case of the petitioner is that she is a lady, who belongs to scheduled caste and she has been allotted a shop room ::3:: **WP(C).No.11313 OF 2020(L)** owned by the 1[st] respondent-Mala Block Panchayath to run business of Fabrication Unit for making gates and grills. Further that the petitioner has obtained Ext.P-11 statutory consent for operating the said unit issued by the Environmental Engineer of the Kerala State Pollution Control Board on 29.11.2018 which is valid up to 31.10.2033. The petitioner had also earlier secured trade/D&O licence issued by the Aloor Grama Panchayath to conduct the said trade in the shop room owned by the 1[st] respondent and the petitioner has been running the said trade since the year 2018. Ext.P-3 is the original agreement dated 1.3.2018 entered into between the petitioner and Mala Block Panchayat for occupation of the said shop room and Exts.P-5 & P-6 are the documents in relation to renewal of the said agreement to occupy the said shop room. Ext.P-1 is the last of the trade/D & O licence issued by the 3[rd] respondent-Aloor Grama Panchayat on 31.5.2019 to conduct the said trade in the shop building. Ext.P-9 is stated to be consent certificate issued by the said Sub District Industrial Officer, Mukundapuram on 24.10.2018. Ext.P-10 is the sanitary certificate dated 10.5.2019 issued by the State Health Department in respect of Industrial Unit set up by the petitioner. ::4:: ## **WP(C).No.11313 OF 2020(L)** The petitioner has submitted Ext.P-2 application dated 25.4.2020 before the 4[th] respondent-Secretary of the Aloor Grama Panchayath for renewal of the trade/D & O licence for the year 2020-21. The complaint of the petitioner is that now the 1[st] respondent-Mala Block Panchayath has issued Ext.P-8 notice dated 14.5.2020 intimating the petitioner that the agreement to occupy the said shop room will stand terminated as the petitioner has not so far secured renewal of the trade licence from the 4[th] respondent-Secretary of the Aloor Grama Panchayat and further that complaints have been received that the petitioner is now using higher powered motor having Horse Power 25 Hp instead of 5 Hp motor. 4. The learned counsel for the petitioner would point out that no restrictions regarding the use of the Hp motor has been placed by the State Pollution control Board in Ext.P-11 consent. Further that in case the use of such higher powered motor requires any formal permission of the 4[th] respondent-Aloor Grama Panchayath, then the petitioner is also prepared to file any such application, if so required. The fact of the matter is that even now Ext.P-2 application dated submitted by the petitioner to the ::5:: **WP(C).No.11313 OF 2020(L)** 4[th] respondent-Aloor Grama Panchayath for renewal of Ext.P-1 trade licence has not been considered till date. Sri.Philip T.Varghese, learned counsel for respondents 3 & 4 would submit on the basis of instructions that immediately on receiving Ext.P-2 application dated 25.4.2020 for renewal of the trade licence, the 4[th] respondent-Secretary of the Grama Panchayath has sent a letter to the petitioner instructing him to produce necessary certificate of the State Pollution Control Board to show that the petitioner is permitted to use the motor having power up to 25 Hp and also to produce copy of the lease deed. Thereafter the petitioner has produced certificate from the State Pollution Control Board wherein it is only shown that the petitioner is permitted to use motor having only 5 Hp. The learned counsel for the petitioner submits that she has no factual instructions on those aspects and that these aspects have been canvassed by respondents 3 & 4 without even filing a statement/affidavit in the matter. Further that in case variation of the consent of the State Pollution control Board is required for using a higher powered motor of 25 Hp then the petitioner would certainly get the said permission from the State Pollution Control Board. ::6:: **WP(C).No.11313 OF 2020(L)** 5. However, having regard to the facts and circumstances of this case, this Court is of the considered view that the stand of the 1[st] respondent-Mala Block Panchayath to issue an order in the nature of Ext.P-8 on the ground that the petitioner has not secured renewal of the existing trade licence from the 4[th] respondentGrama Panchayat cannot be said to be legal and proper and therefore the same would warrant interdiction. It is also by now well settled that the consent of the landlord is required only at the time of initial grant of trade licence by the Panchayath authorities and for subsequent renewal of trade/D & O licence consent of the land lord is not required [see _**Sudhakaran v. Corporation of Trivandrum & anr.**_ (2016) 14 SCC 263), _**Marimuthu v. Director General of Police**_ , (1999) 3 KLT 662 para 17, etc.]. However it goes without saying that the petitioner will have to pay the requisite rent/licence fee to the 1[st] respondent-Mala Block Panchayath and she will have also to comply with all the other requirements and the terms and conditions of the allotment of said shop room. Accordingly, the following orders and directions are issued: ::7:: ## **WP(C).No.11313 OF 2020(L)** - _(i) Ext.P-8 order dated 14.5.2020 issued by the 1[st] respondent-Mala Block Panchayath will stand set aside and quashed._ - _(ii) In case the petitioner requires variation of Ext.P-11 consent issued by the Environmental Engineer of the Kerala State Pollution Control Board for using a higher powered motor of 25 Hp, then it is for the petitioner to immediately approach the said Pollution Control Board authorities to get variation of the consent of Ext.P-11 and on making such a request, the Environmental Engineer of the Kerala State Pollution Control Board may conduct inspection and may take necessary decision thereon after hearing the petitioner. Thereafter the petitioner will produce a copy of the proceedings so issued by the State Pollution Control Board. However, in case the variation of Ext.P-11 consent for using high powered motor of 25 Hp is not required, then the Environmental Engineer of the State Pollution Control Board may give a certificate to that effect to the petitioner. This process should be duly completed within one month from the date of production of a certified copy of this judgment._ - _(iii) Thereafter the petitioner will produce the said proceedings/certificate of the Environmental Engineer of the State Pollution Control Board before the 4[th] respondent-Secretary of the Aloor Grama Panchayat, who will thereupon take up for consideration the matters in relation to Ext.P-2 application dated 25.4.2020 for renewal of the trade/D & O licence for the year 2020-21 and after affording reasonable opportunity of being heard to the petitioner, should pass orders thereon within 3 weeks thereafter and in the light of the dictum laid down by this Court in_ _**Tomy Thomas v. State of Kerala** [2019 (3) KLT 987 (FB) paras 22 & 23]._ - _(iv) The 4[th] respondent-Secretary of the Grama Panchayath will ensure that a copy of the proceedings so issued should be furnished to the petitioner and to the 2[nd] respondent-Secretary of Mala Block Panchayath for necessary information._ ::8:: **WP(C).No.11313 OF 2020(L)** _The petitioner should ensure that all the rental dues payable to the 1[st] respondent-Mala Block Panchayat should be cleared within next two months._ The petitioner will produce certified copies of this judgment along with copy of the memorandum with all exhibits before the respondents 2 & 4 and also before the Environmental Engineer of the State Pollution Control Board who has issued Ext.P-11 for necessary information and further action. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. **Sd/ALEXANDER THOMAS, Judge.** bkn/- ::9:: **WP(C).No.11313 OF 2020(L)** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LATEST LICENCE CERTIFICATE DATED 31.05.2019 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** **EXHIBIT P2 TRUE COPY OF THE APPLICATION FOR RENEWAL OF LICENCE DATED 25.04.2020 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE AGREEMENT DATED 01.03.2018 ENTERED INTO BETWEEN THE PETITIONER AND THE 1ST RESPONDENT.** **EXHIBIT P4 TRUE SECURITY DEPOSIT RECEIPT DATED 02.03.2018.** **EXHIBIT P5 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 07.05.2019.** **EXHIBIT P6 TRUE COPY OF THE AGREEMENT DATED 08.05.2019 ENTERED INTO BETWEEN THE PETITIONER AND THE 1ST RESPONDENT. EXHIBIT P7 TRUE COPY OF THE REMINDER LETTER DATED 08.05.2020 SENT BY THE PETITIONER TO THE 1ST RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF NOTICE DATED 14.05.2020 SENT BY THE 1ST RESPONDENT TO THE PETITIONER.** **EXHIBIT P9 TRUE COPY OF THE CONSENT CERTIFICATE DATED 24.10.2018 ISSUED BY THE SUBDISTRICT INDUSTRIAL OFFICER, MUKUNDAPURAM TO THE PETITIONER.** - **EXHIBIT P10 TRUE COPY OF THE SANITARY CERTIFICATE DATED 10.05.2019 ISSUED BY THE STATE HEALTH DEPARTMENT TO THE INDUSTRIAL UNIT SET UP BY THE PETITIONER.** **EXHIBIT P11 TRUE COPY OF THE CERTIFICATE DATED 29.11.2018 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD.**