Ulahannan George Mangattu Kattayil v. Manjoor Grama Panchayath & Secretary, Manjoor Grama Panchayath

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 24TH DAY OF JUNE 2020 / 3RD ASHADHA, 1942** ## **WP(C).No.12415 OF 2020(B)** ## **PETITIONER/S:** **ULAHANNAN GEORGE MANGATTU KATTAYIL, NAZRETH HILL, KURUVILANGAD, KOTTAYAM-686633.** **BY ADV. SRI.AUGUSTINE JOSEPH** ## **RESPONDENT/S:** |**1**|**MANJOOR GRAMA PANCHAYATH**| |---|---| ||**REPRESENTED BY ITS SECRETARY,**| ||**MANJOOR,KOTTAYAM-686603.**| |**2**|**SECRETARY,**| ||**MANJOOR GRAMA PANCHAYATH,MANJOOR,**| ||**KOTTAYAM-686603.**| ## **OTHER PRESENT:** **SRI.SAJI KURIACHAN, SC, SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.12415 OF 2020(B) ..2.. ## **ALEXANDER THOMAS, J.** -------------------------------------------------- WP(C) No. 12415 of 2020 -------------------------------------------------Dated this the 24[th] day of June, 2020 ## **J U D G M E N T** The case set by the petitioner in the instant writ petition is that he has been conducting a business of cold storage and chicken centre from 1987 onwards, for which he obtained license first time from the Panchayath in 2012. Thereafter, as stipulated, the petitioner obtained certificates from the Pollution Control Board, Food Safety Officer, D & O Trades/Sanitary Certificate and Health Card to the salesman. Aggrieved by the rejection of the application for renewal of license by the respondent panchayath as per Ext.P6 dated 12.06.2020, the petitioner has approached this Court. 2. In the light of the above averments, the petitioner has filed the instant writ petition with the following prayers; “(i) Call for records relating to Exhibit P6 (ii) Issue a writ of Certiorari to quash Exhibit P6 (iii) Issue a Writ of mandamus to the respondents to issue license to the cold storage of the petitioner. (iv) Issue such other writs, orders, directions including interim orders deem fit in the circumstances of the case. (v) Allow this writ petition with costs.” WP(C).No.12415 OF 2020(B) **==> picture [20 x 8] intentionally omitted <==** 3. According to the petitioner, he has been conducting a business of cold storage and chicken centre within the limits of the respondent Manjoor Grama Panchayath since 1987. He had secured the requisite trade/D&O licence for the first time issued by the 2[nd] respondent – Secretary Manjoor Grama Panchayath as per Ext.P1 dated 03.03.2012. Later, the petitioner has secured renewal of such trade/D&O licence for the conduct of the cold storage business ever since then. Now, the petitioner has secured all necessary permissions and consents from the statutory authorities concerned as can be seen from Ext.P2 statutory consent dated 24.06.2019 issued by the Kerala State Pollution Control Board, Ext.P3 registration dated 05.02.2018 from the Food Safety Officer, Ext.P4 certificate dated 22.02.2020 from the Primary Health Centre and Ext.P5 Health Card dated 20.09.2016. Further, it is the case of the petitioner that the conduct of the trade of the cold storage shop would only involve grant of trade/D&O licence in terms of Section 232 of the Kerala Panahayath Raj Act, in which case the exclusive authority in that regard is only the Secretary of the Grama Panchayath concerned. According to him, the Panchayath Committee of the respondent Panchayath has no jurisdiction to WP(C).No.12415 OF 2020(B) **==> picture [20 x 8] intentionally omitted <==** interfere with the statutory discretion of the 2[nd] respondent – Secretary Manjoor Grama Panchayath in the grant of licence or renewal of licence and at best the Panchayath Committee may have some role if an appeal is preferred by an aggrieved person, provided it is permitted as per the rules. Further, the conduct of the cold storage will not involve installation of machinery as envisaged under Section 233 of the Kerala Panchayath Raj Act and therefore, the Panchayath Committee has no jurisdiction in a matter like this at the stage of grant of licence and renewal of licence, for which the original authority is the Secretary of the Panchayath. Now, the Panchayath Committee has passed Ext.P7 resolution dated 02.03.2020 without notice to the petitioner and behind the back of the petitioner taking an adverse decision that the licence of the petitioner for running cold storage shall not be renewed. 4. A reading of Ext.P7 would show that the 2[nd] respondent – Secretary of Manjoor Grama Panchayath has objection to the stand of the Panchayath Committee and that the Health Inspector has also given a report in favour of the petitioner. In spite of that, the Panchayath Committee has taken an adverse decision as per Ext.P7 resolution dated 02.03.2020 and based on the said direction, the WP(C).No.12415 OF 2020(B) **==> picture [20 x 8] intentionally omitted <==** 2[nd] respondent has been constrained to issue Ext.P6 order dated 12.06.2020, ordering that the request of the petitioner for renewal of the licence will stand rejected. However, both Exts.P6 and P7 have been rendered without affording an opportunity of being heard to the petitioner. Further, there is an adjoining cold storage shop, for which licence has been renewed by the Panchayath Committee as per Ext.P7 in spite of various and glaring deficiencies. 5. Sri.Saji Kuriachan, the learned Standing Counsel for the respondents – Manjoor Grama Panchayath, has made submissions supporting the impugned order by citing the factual aspects mentioned in Ext.P7 resolution. 6. Sri.Augustine Joseph, the learned counsel for the petitioner, would submit that the above said decision as per Ext.P7 has been taken for ulterior considerations and due to the _mala fide_ influence exerted by the neighbouring cold storage shop owner, who is a trade rival to the petitioner. 7. After hearing both sides and taking note of the facts that the impugned Exts.P6 and P7 have been rendered behind the back of the petitioner and without affording an opportunity of being heard to the petitioner and an inspection has also been conducted WP(C).No.12415 OF 2020(B) **==> picture [20 x 8] intentionally omitted <==** without notice to the petitioner and even a copy of the adverse inspection report has not been given to the petitioner, this Court has no hesitation to hold that the impugned Exts.P6 and P7 are a nullity as they have been issued in flagrant violation of the elementary principles of natural justice and fairness. Further, if the running of a cold storage shop involves only grant of trade/D&O licence as per Section 232 of the Kerala Panchayath Raj Act and it does not involve any machinery, then the matters in respect of the establishment licence as per Section 233 of the Kerala Panchayath Raj Act are not applicable in such a case, and then, the exclusive original authority, who deals with the issues of renewal or refusal of renewal of the existing trade licence, is the Secretary of the Grama Panachayath and not the Panchayath Committee. That be so, Ext.P7 resolution dated 02.03.2020 is without jurisdiction and competence. Solely on the ground of violation of principles of natural justice, this Court is inclined to interfere with the impugned orders. Accordingly, the following directions and orders are passed; (i) The impugned Ext.P7 resolution dated 02.03.2020 issued by the Committee of the Manjoor Grama Panchayath and Ext.P6 order dated 12.06.2020 issued by the 2[nd] respondent – Secretary WP(C).No.12415 OF 2020(B) **==> picture [20 x 8] intentionally omitted <==** Manjoor Grama Panchayath, rejecting the request of the petitioner for renewal of the trade licence to run the cold storage shop will stand set aside and rescinded. - (ii) Consequently, it is ordered that the application submitted by the petitioner for renewal of trade/D&O licence referred to in Ext.P6 will stand remitted to the 2[nd] respondent – Secretary Manjoor Grama Panchayath for consideration afresh. - (iii) The 2[nd] respondent – Secretary Manjoor Grama Panchayath will immediately ensure that a fresh inspection is conducted through the Health Inspector or any other competent authorized officer of the Panchayath with due prior notice to the petitioner and a copy of such inspection report should be given to the petitioner in advance. - (iv) Thereafter, the 2[nd] respondent – Secretary Manjoor Grama Panchayath will afford a reasonable opportunity of being heard to the petitioner and in case what is involved is only the renewal of trade/D&O licence under Section 232 of the Kerala Panchayath Raj Act, then, the 2[nd] respondent - Secretary himself should take a decision in the matter without seeking the opinion of the Panchayath Committee without, in any way, influenced by the views of the Committee of the 1[st] respondent Panchayath as WP(C).No.12415 OF 2020(B) **==> picture [20 x 8] intentionally omitted <==** the exclusive authority in that regard is only the Secretary of the Grama Panchayath. If that be so, the decision on the request of the petitioner to renew the trade licence should be taken by the 2[nd] respondent – Secretary in terms of Section 233 of the Kerala Panchayath Raj Act, taking note of the submission of the learned counsel for the petitioner based on Exts.P1 to P5 and also the legal principles laid down by the Full Bench decision of this Court in **Tomy Thomas** v. **State of Kerala & Others** [2019 (3) KLT 987 (FB)], wherein it has been held that where the applicant, who seeks for renewal of the trade licence, has secured all the necessary consents, permissions and licences from the statutory legal authorities concerned, then the Secretary of the Panchayath has no discretion to refuse the grant of renewal of the trade licence in view of the amended provisions of the Kerala Panchayath Raj Act and the Rules framed thereunder. - (v) Orders in this regard should be passed by the 2[nd] respondent – Secretary Manjoor Grama Panchayath without much delay, preferably within a period of four to five weeks from the date of receipt of certified copy of this judgment. - (vi) It is made clear that the Panchayath Committee of the respondent Panchayath will come into play only if the provisions WP(C).No.12415 OF 2020(B) **==> picture [20 x 8] intentionally omitted <==** contained in Section 233 of the Kerala Panchayath Raj Act are attracted. Needless to say that if the Panchayath Committee has any appellate jurisdiction over the decision taken by the 2[nd] respondent – Secretary Manjoor Grama Panchayath as per the Rules, then, the observations and findings rendered by this Court herein above shall not, in any manner, interdict exercise of the appellate jurisdiction, but strictly in accordance with law, provided any aggrieved party has filed an appeal in that regard. (vii) However, it is ordered that the petitioner should ensure that the cold storage shop is conducted in an extremely hygienic and proper manner so as to avoid any complaint. With these observations and directions, this WP(C) stands accordingly disposed of. Sd/- **ALEXANDER THOMAS JUDGE** bka/ WP(C).No.12415 OF 2020(B) ..10.. ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 COPY OF THE LICENSE TO THE ESTABLISHMENT OF THE PETITIONER DATED 3.3.2012** **EXHIBIT P2 TRUE COPY OF THE CONSENT DATED 24.6.2019 FROM THE POLLUTION CONTROL BOARD.** **EXHIBIT P3 TRUE COPY OF THE REGISTRATION DATED 5.2.2018 FROM THE FOOR SAFETY OFFICER. EXHIBIT P4 TRUE COPY OF THE CERTIFICATE DATED 22.2.2020 FROM THE PRIMARY HEALTH CENTRE.** **EXHIBIT P5 TRUE COPY OF THE HEALTH CARD DATED 20.9.2016 EXHIBIT P6 TRUE COPY OF THE ORDER DATED 12.6.2020 FROM THE 2ND RESPONDENT. EXHIBIT P7 TRUE COPY OF THE RESOLUTIO OF THE 1ST RESPONDENT DATED 2.3.2020.**