T.K. Balan v. Secretary, Mattathoor Grama Panchayat and Mattathoor Grama Panchayat Committee

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 17TH DAY OF SEPTEMBER 2014/26TH BHADRA, 1936 WP(C).No. 5153 of 2014 (T) --------------------------- PETITIONERS : -------------------------- T.K.BALAN, S/O.KARAPPAN, AGED 73 YEARS THIYYEDATH HOUSE, PADY PO, KODALY THRISSUR DISTRICT PIN-680 699 BY ADVS.SRI.S.K.BALACHANDRAN SMT.N.D.DEEPA RESPONDENTS : ---------------------------- 1. SECRETARY, MATTATHOOR GRAMA PANCHAYAT MATTATHOOR PO, TRICHUR DISTRICT, PIN-680684 2. MATTATHOOR GRAMA PANCHAYAT COMMITTEE REPRESENTED BY ITS PRESIDENT, MATTATHOOR PO TRICHUR 680 684. R1 BY ADV. SRI.M.R.VENUGOPAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5153 of 2014 (T) --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXT.P1 - A TRUE COPY OF THE APPLICATION FOR RENEWAL OF LICENCE BY THE PETITIONER DATED 30-10-2013 EXT.P2 - A TRUE COPY OF NOTICE AS PER ORDER NO.A8-6865/13 DATED 16-12-2013 ISSUED BY THE 1ST RESPONDENT EXT.P3 - A TRUE COPY OF REPLY DATED 26-12-2013 OF THE PETITIONER EXTP4 - A TRUE COPY OF LICENCE OF 2008-2009 ISSUED FROM THE 1ST RESPONDENT EXT.P5 - A TRUE COPY OF CRIME NO.1118/2013 OF VELLIKULANGARA POLICE STATION DATED 26-10-2013 EXT.P6 - A TRUE COPY OF CERTIFICATE DATED 4-9-2013 ISSUED BY THE FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA EXT.P7 - A TRUE COPY OF CERTIFICATE OF SANITARY DATED 26-12-2013 ISSUED BY THE HEALTH OFFICER, CHC MATTATHOOR. EXT.P8 (SERIES) (3 NOS) - A TRUE COPY OF THE HEALTH CARDS ISSUED BY THE SUPERINTENDENT C.H.CENRE, MATTATHOOR. EXT.P9 - A TRUE COPY OF NOTICE DATED 22-1-2014 OF 1ST RESPONDENT EXT.P10 - A TRUE COPY OF REPLY DATED 28-01-2014 OF THE PETITIONER EXT.P11 - A TRUE COPY OF 1ST RESPONDENT'S ORDER DATED 27-1-2014 EXT.P12 : A PHOTOGRAPH SHOWING THE SMOKE PIPE PUT ON THE SIDE OF PETITIONER'S HOTEL (CHIMNEY) RESPONDENT(S)' EXHIBITS --------------------------------------EXT.R1(A) : TRUE COPY OF COVERING LETTER DATED 11.10.2013 WITH COPY OF REPORT OF HEALTH INSPECTOR EXT.R1(B) : TRUE COPY OF THE REPORT DATED 25.10.2013 SUBMITTED BY THE ASSISTANT ENGINEER /TRUE COPY/ P.A TO JUDGE AV ## **K.SURENDRA MOHAN, J. ------------------------------------** W.P.(C) No.5153 of 2014 **-----------------------------------** Dated this the 17[th] day of September, 2014 ## **J U D G M E N T** The petitioner, the owner of a restaurant by name 'Muthu Hotel' at Kodaly within the area of the 2[nd] respondent Panchayat, has filed this writ petition challenging Ext.P11 order passed by the 1[st] respondent. As per Ext.P11, a final order has been passed directing the petitioner to remove a pipe fixed by the petitioner for letting out smoke from the kitchen of his restaurant. The allegation is that, the said smoke pipe is located on a public pathway through which, the public including small children pass every day. Since the smoke pipe gets heated by the passage of smoke, it is pointed out that there are chances of people or even small children suffering burn injuries. The second reason stated in Ext.P11 is that, the petitioner has not obtained a licence for the conduct of his restaurant. 2. According to the learned counsel for the petitioner Sri.S.K.Balachandran, the restaurant has been functioning from the year 1998 onwards. Licences were being issued to the restaurant every year from the time it started functioning. However, after the licence expired in March 2013, the licence could not be got renewed because, according to the petitioner he was not keeping well. It is further alleged that, the petitioner has some disputes with a W.P.(C) No.5153 of 2014 2 neighbour of his by name John regarding the use of the public pathway by the side of his restaurant. There is also a civil suit pending between the parties. It is alleged that the Panchayat has issued the impugned proceedings at the behest of the said John. Though he had submitted Ext.P1 application on 30.10.2013 for the renewal of his licence, no orders have been passed thereon till date. For the above reason, it is submitted that the petitioner is entitled to claim the benefit of a deemed licence under Section 236 of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as 'the Act' for short). For the current year also, an application for renewal of licence has been submitted, it is contended. On the said application also no orders have been passed. Since the question of removal of the smoke pipe is the subject matter of a civil litigation, it is contended by the counsel for the petitioner that the removal thereof would have to await the decision of the civil court. The counsel assures that the said smoke pipe would not be used and that his application for the issue of licence may be considered on the basis of the said undertaking. 3. A counter affidavit has been filed by the 1[st] respondent. Adv.Sri.M.R.Venugopal appears for the said respondent. According to the counsel, pursuant to a complaint received from the local resident against the manner in which the petitioner was conducting his restaurant, an inspection was conducted by the Health Inspector. W.P.(C) No.5153 of 2014 3 Ext.R1(a) is the report of the said inspection. As per Ext.R1(a), it has been found that the smoke pipe was installed by the petitioner on a public pathway used by the general public, posing danger to the safety of the users thereof. It has also been found that, the kitchen was not in a hygienic condition and that the employees had no health cards. It has also been reported that, the petitioner does not have a licence issued by the Panchayat. Pursuant to Ext.R1(a) report, the Assistant Engineer, Local Self Government Department conducted a further inspection on 25.10.2013. The report of the said inspection is Ext.R1(b). It was found that the smoke pipe was projecting into the public pathway. On the basis of the said report, the petitioner was issued with Ext.P2 directing him to show cause why his restaurant should not be ordered to be closed down. His explanation in Ext.P3 was only that, he had taken necessary precautions by installing a cover to the smoke pipe. Therefore, his application for licence may not be rejected for the said reason. It was only thereafter that by Ext.P11 final order, the hotel was directed to be closed down. According to the counsel there are absolutely no grounds to interfere with Ext.P11. 4. Heard. It is not in dispute that, the petitioner has no licence to conduct his restaurant. The case of the petitioner is that, though he had been renewing his licence periodically from 1998 onwards, the same was not renewed from the year 2013 onwards. The W.P.(C) No.5153 of 2014 4 explanation of the petitioner that, he could not renew it because he was not well, is not at all convincing for the reason that, he had been conducting the hotel without any break. Therefore, it cannot be accepted that he was not well only for the purpose of renewing the licence. Be that as it may, he has submitted Ext.P1 application on 30.10.2013 for the issue of a fresh licence, which is still pending. According to the counsel for the petitioner, the period for which Ext.P1 application was submitted has already expired and therefore he has submitted a fresh application for the current year also. The said application is also pending. Since no orders have been passed thereon, it is contended that the petitioner is entitled to the benefit of a deemed licence as provided by the Act. Since the petitioner is conducting his restaurant on the strength of a deemed licence, it is contended that the allegation in Ext.P11 that he has no licence is without any basis. 5. Ext.P11 has been issued on the basis of complaints received from the local residents, according to the Panchayat. Ext.R1(a) and R1(b) reports show that the petitioner has installed a smoke pipe projecting out of his building on to a public pathway that is used by the people of the locality. It is true that there is a civil litigation pending with respect to his right to install the said smoke pipe. Inasmuch as the right of the petitioner to install the smoke pipe is the subject matter of a civil litigation, that is stated to be pending, it W.P.(C) No.5153 of 2014 5 is only appropriate that the removal of the said smoke pipe awaits the decision of the civil court. According to the counsel for the petitioner, the matter is pending consideration in R.S.A.No.1313/2013 before this Court. 6. Since the petitioner has submitted applications for licence to conduct his restaurant, it is necessary that the said applications are considered, without further delay. The 1[st] respondent shall consider the same independent of Ext.P11 and the allegations regarding the installation of the smoke pipe. It is made clear that the 1[st] respondent shall be at liberty to insist on maintenance of hygienic conditions as well as rectification of any other defects that he may find in the conduct of business of the restaurant. The consideration of the licence shall be subject to the final outcome of R.S.A.No.1313/2013 that is pending before this Court. In the meantime, the petitioner shall undertake before the 1[st] respondent that he shall not use the objectionable smoke pipe for letting out smoke from his kitchen. Needless to observe that the 1[st] respondent shall be at liberty to initiate appropriate action against the petitioner for cancellation of his licence, if there is any violation of the condition that he should not use the smoke pipe. The 1[st] respondent shall also be at liberty to insist on payment of any additional fee in the light of the dictum laid down by this Court in _**Swapna Jestus v. Pulpally Grama Panchayat [2013 (1) KLT 444]**_ for not having submitted 6 W.P.(C) No.5153 of 2014 the application for renewal in time. In view of the above, this writ petition is disposed of with the following directions : - (1) All further action based on pursuant to Ext.P11 shall be kept in abeyance awaiting the decision of this Court in R.S.A.No.1313/2013. Further action with regard to shifting of the smoke pipe shall be initiated only on the basis of the judgment of this Court. - (2) The applications for licence submitted by the petitioner shall be considered by the 1[st] respondent in accordance with law and appropriate orders shall be passed thereon, if necessary after conducting an inspection of the premises of the petitioner, as expeditiously as possible and at any rate within a period of one month of the date of receipt of a copy of this judgment. Sd/- **K.SURENDRA MOHAN, JUDGE.** AV