Sharookali. K.P. v. Ottapalam Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 07TH DAY OF JULY 2020 / 16TH ASHADHA, 1942** ## **WP(C).No.13369 OF 2020(U)** ## **PETITIONER/S:** **SHAROOKALI. K.P., S/O. UNNIYANKUTTY, KOLOTHUPARAMBIL VARODE, OTTAPALAM, TALUK, PALAKKAD DISTRICT.** **BY ADV. SRI.P.JAYARAM** ## **RESPONDENT/S:** |**1**|**OTTAPPALAM MUNICIPALITY**| |---|---| ||**REPRESENTED BY ITS SECRETARY, P.O. THOTTAKARA 679**| ||**102.**| |**2**|**THE SECRETARY,**| ||**OTTAPALAM MUNICIPALITY, P.O. THOTTAKARA, 679 102.**| |**3**|**MURUKESAN,**| ||**S/O. ARUNACHALAM MUTHALIYAR, ALIKKAPARAMBIL P.O.**| ||**SOUTH PANAMANNA, OTTAPALAM, TALUK 679 501.**| ## **OTHER PRESENT:** ## **SRI.P.P.THAJUDEEN,SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ================== W.P.(C).No. 13369 of 2020 ================== Dated this the 7[th] day of July, 2020 **J U D G M E N T** The case set up in the aforecaptioned Writ Petition (Civil) is as follows: _That the petitioner herein had applied for a licence to run a chicken stall at South Panamanna within the limits of Ottapalam Municipality, for which the petitioner had taken on licence a building No. 32/30(1) of Ottapalam Municipality. The building was taken on licence on 30/5/2019 paying a licence fee of Rs.3,500/- per month and on further payment of security deposit, Rs.30,000/-. The said licence has subsequently been renewed and is existing now. Knowing about petitioner's application for licence, some people around keeping an axe to grind against the petitioner, have sinisterly brought up an issue of religious belief to counter petitioner's efforts to search for a livelihood. They raised an issue that the chicken stall shall not be permitted for its proximity with a temple in the locality. The claim of the very existence of the temple itself is slimy and slithery. There is no temple as such and the alleged worship is surrounding a bare stone fixed on the ground. They say it is a Bhadrakalikkavu. It is a private enterprise aimed to tap the potential of religious faith. There is no public temple. The Pollution Control Board has given the petitioner the necessary permission to operate. The petitioner has also undertaken to properly manage the waste that might be generated. Necessary soaks were already put in place. Whereas, the Municipality has rejected the licence to the petitioner solely in view of the alleged public protest. Public protest is, by no means, is a legal ground to reject the petitioner's application. There was no protest actually involving_ W.P.(C).13369/20 - : 3 :- _the public. Though Municipality had heard the petitioner as also the protesters, there was no application of mind by the local authority in rejecting the licence. There is no finding that running of the chicken stall would adversely affect the smooth functioning of the so called temple. The orderjust says that the licence is refused in view of the public protest. This is not legally permissible. An authority cannot pursue such mode or method in meddling with the legal rights of individuals. The petitioner is legally entitled to obtain the licence. There are no devotees as general public and the whole exercise of following the ardent faith is stage managed by an identifiable group of private individuals. A local authority cannot join in issue in settling scores among people around in propagation of their vested interests based on their individual hostilities. The protest was aimed to cripple the livelihood of the petitioner. The rejection of licence is an absolute illegality. The impugned order of the local authority is violative of the petitioner's legal, fundamental and Constitutional Rights, it is urged._ 2. It is in the above contentions and averments, that the petitioner has filed the instant Writ Petition (Civil) with the following prayers; - _"i) issue a writ of certiorari or other appropriate writ, direction or order quashing Exhibit P1 order refusing licence to the petitioner._ - _ii) issue a writ of certiorari or other appropriate writ, direction or order quashing Exhibit P2 decision of the Municipal Council, Ottapalam Municipality refusing licence to the petitioner._ - _iii) issue a writ of mandamus or other appropriate writ, direction or order directing the 1[st] and 2[nd] respondents to grant licence to the petitioner for starting a chicken stall in Building No. 32/30(1) of Ottapalam Municipality._ - _iv) grant such other reliefs found just and proper in the facts and circumstances of the case."_ W.P.(C).13369/20 - : 4 :- 3. Heard Sri.P.Jayaram, learned counsel appearing for the petitioner and Sri.P.P.Thajudeen, learned Standing Counsel for the Ottapalam Municipality appearing for R-1 & R-2. In the nature of the order that is proposed to be passed in this petition, notice to the R-3 will stand dispensed with. 4. The proceedings under challenge are those in terms of Ext.P-1 letter dated 29.2.2020 issued by the 2[nd] respondent Secretary of the Ottapalam Municipality as well as Ext.P-2 resolution dated 6.2.2020 issued by the Municipal Council of the 1[st] respondent Ottapalam Municipality, whereby the application of the petitioner for the grant of trade/D&O licence for running his chicken centre has been rejected on the ground that the same is opposed by public protest. 5. Ext.P-1 letter dated 29.2.2020 issued by the 2[nd] respondent Secretary of the Municipality reads as follows: **==> picture [403 x 105] intentionally omitted <==** ഫപപഷകൻ സസപകടറ� ഒറപ�ലല നഗരസഭ W.P.(C).13369/20 - : 5 :- സസ�കർത�വ ഷ�ററഖ അല� ഫക�ഫല�തത പറമ�ൽ വഫര�ട .പ�.ഒ. വ�ഷയല : - - ഒറപ�ലല നഗരസഭ ആഫര�ഗ2 വ�ഭ�ഗല ച�കൻസ�ൾ - സ�പ�ക�നത�ന അന�മത� നൽക�നത സലബന�ചത സറചന : 1)ത�ങൾ സമർപ�ച അഫപക. 2)ബഹ�.ക@ൺസ�ല�നസറ06/ 02/ 2020 സല 25 - ആലനമർ ത�ര�മ�നല. സറചന (1 ) പപക�രല ത�ങൾ സമർപ�ച അഫപക ക@ൺസ�ല�നസറ പര�ഗണനകത സമർപ�ചത�ൽ സറചന (2) പപക�രല സമ�പത�ള ഫകപതകമ�റ� ഭ�രവ�ഹ�കളDസEയ�ല സപ�ത�ജനങളDസEയ�ല പര�ത�കൾ പര�ഗണ�ചത�നസറ അE�സ�നത�ൽ ലലസൻസ നൽഫകണത�ലJ�സയനത ത�ര�മ�നമ�യ�ടDളത�ണ എന വ�വരല . ത�ങസള അറ�യ�ക�ന� സസപകടറ� ഒറപ�ലല നഗരസഭ" 6. Ext.P-2 resolution dated 6.2.2020 issued by the Municipal Council of the 1[st] respondent Municipality reads as follows: “06.02.2020 ത�യത�യ�സല ഒറപ�ലല നഗരസഭ ക@ൺസ�ൽ ത�ര�മ�നത�നസറ ശര�പകർപത അജണ 25 1 -120/19 എചത പശ� .ഷ�ററഖ അല�. ഫക�ഫല�തത പറമ�ൽ വഫര�ട (പ�.ഒ) എനവർ 32/ 30 (1) സകട�Eമ�റ�യ�ൽ ച�കൻ സ�ള�ന ലലസൻസ അന�വദ�ക�നത�ന അഫപക സമർപ�ച�ടDണത. ആയത�സനത�സര പശ�.ഭപദക�ള�ക�വ ഫകപത കമ�റ�യ�സEയ�ല E�.മ�ര�ഫകശൻ മ�തൽഫപർ . E� പര�ത�ക�സര ഫനര�ൽ ഒപDസവച പര�ത� ലഭ2മ�ക�യ�ടDണത ഫകടത�നസറ സമ�ഴ�യ�ല, അഫപകകസന ഫനര�ൽ ഫകടത�നസറ സമ�ഴ�യ�ല . വ�ഷയല .ക@ൺസ�ല�ൻസPറ ഫരഖസപE�ത�യ�ടDണത ബഹ� പര�ഗണനക�യ� - ക�റ�പത 1 പശ� .ഷ�ററഖ അല� അഫപകഫയ�സE�പല ഖരപദവ മ�ല�ന2ങൾE�യ�നസറ പറർണ ഉതരവ�ദ�തസത�ല�ല ശ�സപത�യമ�യ� ക�ഴ�സയE�തത . സലസകര�ക�നത�സണനത സത2വ�ങമറലല സമർപ�ച�ടDണത KSPCB നസറ 30/ 06/ 2024 വസരയ�ള അന�മത� പപതവ�ല . ഹ�ജര�ക�യ�ടDണത W.P.(C).13369/20 - : 6 :- - 2 മ�ല�ന2ല സലസകര�ക�നത�ന�യ� ഫസ�ക�കൾ ഏർസപE�ത�യ�ടDളത�യ� എചതഐ റ�ഫപ�ർടത സചയത�ടDണത . - 3 ഖരമ�ല�ന2ല സലസകര�ക�നത�ന�ള ബഫയ�ഗ2�സ പ�നX പറർണമ�യ�ല പപവർതന കമമ�യ�ൽ പബ�ക സപപ�ടസത ഒഴ�ചത ലലസൻസ നൽക�ത�ര�ക�ൻ ന�യമപരമ�യ ക�രണല ക�ണ�ന�ലJ�സയനത എചത എസ റ�ഫപ�ർടത . - സചയത�ടDണത 25ആല നമർ ത�ര�മ�നല പശ� .ഷ�ററഖ അല�. ഫക�ഫല�തത പറമ�ൽ വഫര�ട (പ�.ഒ) എനവർകത 32/ 30 (1) സകട�Eമ�റ�യ�ൽ ച�കൻ സ�ള�ന ലലസൻസ . അന�വദ�ഫകണത�സലJനത ത�ര�മ�ന�ചD സചയർമ�ൻ ഒറപ�ലല നഗരസഭ" 7. The learned counsel for the petitioner would point out that the original authority to deal with the request of a party like the petitioner for grant of trade/D&O licence to run a chicken centre, is exclusively vested with the 2[nd] respondent Municipal Secretary and not with the 1[st] respondent Municipal Council in terms of the provisions contained in the Kerala Municipality Act, 1994 and the rules framed thereunder. Further that in case any person has grievance over the decision so taken by the 2[nd] respondent Secretary in the matter of grant of refusal to grant trade/D&O licence, the party concerned could prefer a statutory appeal before the Municipal Council of the Municipality concerned. That under the guise of the W.P.(C).13369/20 - : 7 :- said appellate power, the Municipal Council cannot usurp the original powers and duties of the 2[nd] respondent Secretary in the matter of primary decision to be rendered on the application for grant of trade/ D&O licence. Further that the Full Bench of this Court in the decision in _**Tomy Thomas v. State of Kerala**_ [2019 (3) KLT 987(FB)] has held that, in view of the amendments made to the provisions of the Kerala Panchayat Raj Act, 1994 and the Kerala Municipality Act, 1994, if the competent statutory regulatory authority grants all other necessary permits and consents, then the Secretary of the local body concerned has virtually no discretion to refuse the application of the party for grant of trade/D&O licence and in such a case, the local body will be at liberty to forward complaints against the functioning of such a licensee to the competent statutory regulatory authority for their examination and decision. Further that the impugned decisions have been rendered without the 2[nd] respondent affording any opportunity of being heard to the petitioner and that the petitioner never dreamed that the Municipal Council of the 1[st] respondent would usurp the powers of the 2[nd] respondent to pass resolution in the nature of Ext.P-2. Further it is also stated that a reading of Ext.P-2 would indicate that the petitioner has already secured W.P.(C).13369/20 - : 8 :- necessary statutory consent from the Kerala State Pollution Control Board and that the reports of the health inspector would show that the petitioner has already provided an effective waste treatment plant as well as waste disposal bio-gas plant, etc. and the only ground for rejection as per Ext.P-2 resolution is that there are protests from the public against granting licence to the petitioner. Such a ground is not permitted as per law, it is contended by the petitioner. 8. From a mere reading of Ext.P-2 resolution it is seen that it is admitted by respondents 1 and 2 that the petitioner has already secured the statutory consent from the Kerala State Pollution Control Board. The inspection reports of the health inspector would show that the petitioner has provided an effective waste treatment plant. So also, it is reported by the health authorities that the petitioner has provided a solid waste disposal system based on bio-gas plant. Further that the solid waste disposal system of the petitioner will be effective when bio-gas plant is fully operationised by the petitioner. The main ground of rejection is that there are protests from the public. Sri.P.P.Thajudeen, learned Standing Counsel for the respondent Municipality would submit that though it may be true that the original authority in the matter of grant or refusal of a trade/ W.P.(C).13369/20 - : 9 :- D&O licence is vested with the 2[nd] respondent Secretary of the Municipality, the provisions contained in Sec. 447 (3) of the Kerala Municipality Act, 1994, would envisage that the matter in relation to even running of a trade or a service or to reject it in public interest, etc. on reasonable grounds, would be vested with the Municipal Council and it is only for that purpose that the Secretary has placed the matter before the Municipal Council, etc. Sec. 447(3) of the Kerala Municipality Act, 1994, would provide as follows: _“Sec.447. Purpose for which places may not be used without licence. — (1) ...._ _xxx xxx xxx_ _(3) The Council shall, within thirty days from the date of receipt of the application, by order and subject to such terms and conditions as it deems fit, either grant a licence for the use of a place for conducting a dangerous or offensive trade or in the interest of the public refuse to grant such licence. (3 A) The Secretary shall, within fifteen days from the date of receipt of the application, by order and subject to such terms and condition as he deems fit, either grant licence for using a place to conduct a common trade or in the interest of the public refuse to grant such licence.”_ 9. After hearing both sides, this Court is of the opinion that this Court need not decide as to whether the Municipal Council would also have jurisdiction to take a decision in the nature of the impugned Ext.P-2 resolution. In the light of the admitted facts in Ext.P-2 that the petitioner has satisfied almost all the norms and that the main ground for rejection is based on public protests, the matter is liable to a remit as it requires serious reconsideration at the hands of the W.P.(C).13369/20 - : 10 :- competent authority of the respondent Municipality. Accordingly, the impugned Exts.P-1 and P-2 will stand set aside. The application submitted by the petitioner for grant of trade licence to conduct the chicken centre will stand remitted to the competent authority of the respondent Ottapalam Municipality for consideration and decision afresh. It is made clear and declared that in case the petitioner is found to have satisfied the basic norms for conducting the trade in question, then the same cannot be rejected on the ground of public protests. To that extent it is ordered and made it clear that the impugned decision, Ext.P-2, is illegal, improper and unreasonable. 10. Accordingly, it is ordered that the 2[nd] respondent Secretary will afford reasonable opportunity of being heard to the petitioner, through the authorised representative/counsel, if any, and any objectors, who have given their objections in writing through their authorised representative/counsel, if any and may decide as to whether the matter is to be exclusively decided by him as contended by the petitioner or the matter should be referred to the Municipal Council as now pointed out in terms of Sec. 447(3) of the Act and then if the 2[nd] respondent decides that he had jurisdiction in the matter, he may pass orders on the application for trade licnece taking W.P.(C).13369/20 - : 11 :- into account all relevant aspects of the matter including the factual submission of the petitioner that he has statutory consent from the Pollution Control Board and that he has also satisfied all the norms for waste treatment plant, etc. Such decision should be duly taken by the 2[nd] respondent Secretary within 3 weeks from the date of production of a certified copy of this judgment. On the other hand, if the 2[nd] respondent Secretary decides that the matter should be referred to the Municipal Council of the 1[st] respondent in accordance with Sec. 447(3) of the Act, then he may do so and in that eventuality, he should forward the hearing notes in the matter and also detailed report to the Municipal Council, who thereafter should take a decision afresh in the matter without much delay, preferably within a period of two weeks from the date on which the matter is referred by the 2[nd] respondent Secretary to the 1[st] Municipal Council. However, it is made clear that while doing so, the competent authorities of the 1[st] respondent, be it the 2[nd] respondent Municipal Secretary or the 1[st] respondent Municipal Council, cannot reject the plea of the petitioner for grant of trade licence merely on the ground of public protest. 11. It is hoped and expected that the competent authority of W.P.(C).13369/20 - : 12 :- the Municipality would raise up to the occasion and would take a fair and just decision and strictly in accordance with law and should not be swayed by extraneous considerations, which are not relevant and germane for the exercise of the power in the matter of decision regarding grant of trade licence, etc. The petitioner will produce certified copy of this judgment along with the copy of the memorandum of the Writ Petition (Civil) before the 2[nd] respondent Secretary of the Municipality for necessary information and further action. The Registry will forward a certified copy of this judgment to contesting respondent No.3 for necessary information and further action. With these observations and directions, the above Writ Petition (Civil) stands finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** skk sdk+ W.P.(C).13369/20 - : 13 :- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER NO. HI-128/19 DATED 29/2/2020 ISSUED BY THE SECRETARY, OTTAPALAM, MUNICIPALITY REFUSING LICENCE TO THE PETITIONER FOR ESTABLISHING A CHICKEN STALL.** **EXHIBIT P2 TRUE COPY OF THE DECISION NO. 25 DATED 6/2/2020 OF THE OTTAPALAM MUNICIPAL COUNCIL RESOLVING TO REFUSE LICENSE TO THE PETITIONER FOR RUNNING A CHICKEN STAFF IN BUILDING NO. 32/20(1).** **EXHIBIT P3 TRUE COPY OF THE LICENSE DEED DATED 30/5/2019 ENTERED INTO BETWEEN THE PETITIONER AND ONE HARIDASAN.**