Disposed

Sakeer Hussain, v. State of Kerala

Kerala HC25 Nov 2019WP(C)/7191/2019

Case brief

AI extract

What is this about?

Petitioner challenging cancellation of trade licence by local Panchayath due to pollution complaints. Court held that since fresh medical and pollution board directions were issued after the initial licensing period, petitioner must file a fresh application considering new conditions.

What did the court decide?

Petitioner granted liberty to make fresh application for Trade Licence; Secretary directed to consider it within one month of application receipt, adhering to District Medical Officer and Pollution Co

Sakeer Hussain, Vs State of Kerala — Service and Employment | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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MONDAY, THE 25TH DAY OF NOVEMBER 2019 / 4TH AGRAHAYANA, 1941

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WP(C).No.7191 OF 2019(Y)

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PETITIONER/S:

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SAKEER HUSSAIN, AGED 39 YEARS S/O.AHAMMED, VAKKATHODIKA HOUSE, PARAKKADAVU, MOONNIYOOR SOUTH P.O., MALAPPURAM DISTRICT, PIN- 676 311.

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BY ADVS. SRI.P.K.SURESH KUMAR (SR.) SRI.K.P.SUDHEER SMT.ANJALI NAIR

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RESPONDENT/S:

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1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM - 695001.

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2 DIRECTOR OF PANCHAYAT, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM - 695 033.

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3 DEPUTY DIRECTOR OF PANCHAYATH, MALAPPURAM DISTRICT, PIN- 676 505.

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4 DISTRICT MEDICAL OFFICER, OFFICE OF THE DISTRICT MEDICAL OFFICER, CIVIL STATION B3 BLOCK, MALAPPURAM - 676 505.

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5 MEDICAL OFFICER, PRIMARY HEALTH CENTRE, MOONNIYOOR, MALAPPURAM DISTRICT, PIN - 676 311.

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6 ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, MALAPPURAM - 676 505.

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7 MOONNIYUR GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, VELIMUKKU SOUTH P.O., MALAPPURAM DISTRICT, PIN - 676 317.

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8 THE SECRETARY, MOONNIYUR GRAMA PANCHAYAT, VELIMUKKU SOUTH P.O., MALAPPURAM DISTRICT, PIN 676 317.

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9 ANWAR SADATH N.M., NARIKOTTU MECHERI, VICE PRESIDENT, P.O.MUNNIYOOR - 676 311, MALAPPURAM DISTRICT.

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10 ABDUL HAKEEM, S/O.MOHAMMADALI, POOVATHUNKAL, ALINCHUVADU, MOONNIYOOR P.O., MALAPPURAM DISTRICT, PIN - 676 311.

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11 FAIZAL CHONARI, S/O.ABDU, CHONARI HOUSE, MOONNIYOOR P.O., MALAPPURAM DISTRICT, PIN- 676 311.

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12 MUSTAFFA THATTANCHERRY, POOVATHUNKAL HOUSE, ALINCHUVADU, MUNNIYOOR P.O., MALAPPURAM DISTRICT - 676 311.

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13 K.K.ABDUL MUNEER, POOVATHUNKAL, ALINCHUVADU, MUNNIYOOR P.O., MALAPPURAM DISTRICT - 676 311.

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R1-5

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R6 BY SRI. T.NAVEEN SC, KERALA STATE POLLUTION CONTROL BOARD, R7-8 BY ADV. SRI.ZAKEER HUSSAIN R7-8 BY ADV. SMT.K.A.SANJEETHA R10-13 BY ADV. SRI.TONY GEORGE KANNANTHANAM GP K.J.MANURAJ SR.GP RAJASEKHARAN NAIR SRI.P.K.SURESH KUMAR

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

The petitioner, who is stated to be the

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Proprietor of scrap, plastic and other waste collection Unit, being operated under the name and style 'M/s V.A.Steels', has approached this Court impugning the decision taken by the

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respondent-Grama Panchayath, namely Ext.P17, as per which, his Trade Licence to run the said business has been withdrawn.

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The petitioner also challenges Exts.P6, P7, P10 and P13 which are the various notices, correspondence and orders prior to Ext.P17, wherein he has been notified several times of the objections of the residents of the locality with respect to the business and he

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asserts that all these, which finally

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culminated in Ext.P17, are based on mere speculation and nothing else.

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The petitioner says that, in fact, the

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Director of Panchayaths had thereafter issued

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Ext.P24 to the Deputy Director of Panchayaths, Malappuram virtually asking the licence of the petitioner to be restored but that through Ext.P26, the Panchayath refused to accede to the same stating that his business causes large scale pollution and therefore, that, being vested with the obligation to take care of the sanitation and health of the residents of the locality, they cannot review Ext.P17 order. He, therefore, prays that these two proceedings

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also be set aside.

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3. Sri.P.K.Suresh Kumar-learned Senior

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Counsel, instructed by Sri.K.P.Sudheer, learned counsel for the petitioner, adds to the above

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by contending that the afore orders,

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proceedings and correspondence of the Panchayath are vitiated by gross malafides, since, as is clear from Ext.P21 and Ext.R4(a),

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the District Medical Officer (DMO for short)

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has unequivocally opined that the petitioner's

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application for renewal of licence can be considered on him complying with certain conditions mentioned therein. The learned Senior Counsel, thus asserts that, going by these documents, the Panchayath could not have taken Ext.P17 decision to cancel the licence already granted and this amounts to complete non-application of mind and abdication of their duties merely based on the complaints preferred

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by certain vested interests. He, therefore, prays that Exts.P6,P7,P10,P13,P15 to P17, P20 and P26 be set aside and his client be allowed to continue with his business.

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In response, Sri.Kurian George Kannamthanam, learned Senior Counsel,

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instructed by Sri.Jony Kannamthanam, learned counsel for respondents 10 to 13, submits that

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the petitioner's licence has been cancelled by the Panchayath, as is evidenced from Ext.P17, because of the horrific pollution caused to the locality. He, however, very fairly concedes that if the petitioner makes a fresh application for licence based on evidence of compliance of all the requirements as required by the DMO in Exts.P21 and R4(a), his client cannot stand in the way, particularly because, the entire allegations in this Writ Petition relate to a licence for the last year, which has now been already cancelled-rightly or wrongly-by the Panchayath; and therefore, that restoration of the same would be irrelevant and untenable, especially since the DMO has given certain specific instructions to the Panchayath thereafter, as is manifest from Exts.P21 and R4(a). He contends, therefore, that the earlier licence cannot be either reinstated or renewed,

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since the petitioner will have to comply with

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all the directions of the DMO as well as that of the Pollution Control Board, so as to ensure that these activities, even if permitted, would not cause any pollution in future.

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The learned Government Pleader,

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Sri.K.J.Manuraj, submits that even though the official respondents do not have anything to comment on the internecine disputes between the parties, Ext.R4(a) has been issued recommending certain specific steps and measures to be taken

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by the petitioner if he requires further licence to be issued. He says that the Panchayath may be directed to ensure that all the conditions in Ext.R4(a) are implicitly complied with.

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Sri.T.Naveen, learned Standing Counsel

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for the Pollution Control Board, submits that Ext.P4 'Consent to Establish' has been issued

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to the petitioner and that he can be allowed to

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operate the Unit only if he complies with all the conditions imposed by the Pollution Control

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Board now and in future.

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Panchayath, Smt.Sanjeetha, submits that the

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impugned orders were issued by her client following due procedure and for valid reasons

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and therefore, prays that this Writ Petition be dismissed.

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When I consider the afore submissions,

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it is without doubt that, as matters now stand, the petitioner does not have a Trade Licenceit having been cancelled through Ext.P17. As rightly pointed out by the learned Senior Counsel, Sri.Kurian George Kannamthanam, Ext.P17 refers to a licence for the last year

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and therefore, its renewal for this year would depend upon the findings of this Court whether

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its cancellation by the Panchayath was for valid reasons or otherwise. However, this Court is impeded from considering the same on its merits because, as is obvious from Exts.P21 and R4(a), the DMO has subsequently made certain specific directions and recommendations, which obviously had not been taken into account when the licence for the last year had been issued.

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I am, therefore, of the view that the petitioner must be now asked to make a fresh application for licence, so that all these reports can be taken note of by the Secretary of the Panchayath while deciding whether a new licence can be granted to him or otherwise. I am certain that this is the best way forward even for the petitioner because, at the time when the earlier licence was granted, none of the conditions mentioned in Exts.P21 or in R4(a) were available to the Secretary for

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consideration and going by the said reports, the DMO firmly recommends those conditions to be implemented before the petitioner is allowed to conduct any further business.

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Perhaps, gauging my mind as afore, the learned Senior Counsel Sri.P.K.Sureshkumar, appearing for the petitioner, submitted that his client will have no objection in making an application for a fresh licence, but apprehends that the Secretary may reject it without proper application and merely because of Ext.P17.

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Though I have considered the

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apprehension voiced by of Sri.Suresh Kumar as above, I am certain that it is without basis because when this Court directs the Secretary to consider a fresh application, it will be done based on the materials available as of now

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and not based on the past events or orders. I

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am certain, therefore, that this Court will be

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justified in directing the petitioner to make a fresh application, which can then be considered by the Secretary in terms of law.

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Resultantly and in the afore perspective,

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I order this writ petition, granting liberty to the petitioner to make a fresh application for

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Trade Licence in terms of law before the Secretary of the Panchayath; and if this is done within a period of two weeks from the date of receipt of a copy of this judgment, same shall be considered by the Secretary adverting

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to Exts.P21 and R4(a) reports and recommendations of the DMO as also any other

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germane and relevant materials and take a decision thereon, after affording an opportunity of being heard to the petitioner as well as respondents 10 to 13, as expeditiously

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as is possible, but not later than one month

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from the date on which the application is

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preferred before him by the petitioner.

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I make it clear that I have not considered

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the rival contentions of the parties in detail but I have only dealt with it in a peripheral manner, solely for the purpose of this judgment; and therefore, that the Secretary will be at full liberty to deal with all the issues, as he may deem fit, in terms of law and after following due procedure.

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Sd/-

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DEVAN RAMACHANDRAN

JUDGE

WPC 7191/19

APPENDIX OF WP(C) 7191/2019

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF SALE DEED DATED 27/12/2017 REGISTERED AS DOCUMENT NO.3727/2017 OF THENHIPALAM SRO.
EXHIBIT P2	TRUE COPY OF SALE DEED DATED 27/12/2017 REGISTERED AS DOCUMENT NO.3728/2017 OF THENHIPALAM SRO.
EXHIBIT P3	TRUE COPY OF THE D&O LICENSE NO.472/2018 2019-A3-4171/2018 DATED 26/06/2018 ISSUED BY THE 7TH RESPONDENT TO THE PETITIONER.
EXHIBIT P4	TRUE COPY OF THE CONSENT TO ESTABLISH DATED 01/10/2018 ISSUED BY THE 6TH RESPONDENT TO THE PETITIONER.
EXHIBIT P5	PHOTOGRAPHS (4 NOS.) OF THE PROPERTY COVERED BY EXHIBITS P1 AND P2 AND THE NEIGHBOURING PROPERTY OWNED BY THE 9TH RESPONDENT.
EXHIBIT P6	TRUE COPY OF NOTICE NO.A7/5392 DATED 05/07/2018 ISSUED BY THE 8TH RESPONDENT TO THE PETITIONER.
EXHIBIT P7	TRUE COPY OF NOTICE NO.A7/5392/18 DATED 06/07/2018 ISSUED BY THE 8TH RESPONDENT TO THE PETITIONER.
EXHIBIT P8	TRUE COPY OF REPLY DATED 10/7/2018 SUBMITTED BY THE PETITIONER TO EXT.P7.
EXHIBIT P9	TRUE COPY OF REPORT 13/07/2018 SUBMITTED BY THE 5TH RESPONDENT TO THE 8TH RESPONDENT.
EXHIBIT P10	TRUE COPY OF NOTICE NO.A7/5392/18 DATED 18/07/2018 ISSUED BY THE 8TH

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EXHIBIT P11	RESPONDENT TO THE PETITIONER. TRUE COPY OF SERVICE PLAN APPENDED TO THE APPLICATION SUBMITTED BEFORE THE 7TH RESPONDENT.
EXHIBIT P12	TRUE COPY OF REPORT DATED 23/7/2018 SUBMITTED BY THE 4TH RESPONDENT TO THE 8TH RESPONDENT.
EXHIBIT P13	TRUE COPY OF ORDER NO.A5-5987/18 DATED 04/08/2018 ISSUED BY THE 8TH RESPONDENT.
EXHIBIT P14	TRUE COPY OF LETTER NO.A7/6502/18 DATED 01/09/18 ISSUED BY THE 8TH PETITIONER.
EXHIBIT P15	TRUE COPY OF LETTER NO.A5-7084/2018 DATED 14/09/2018 ISSUED BY THE 8TH RESPONDENT.
EXHIBIT P16	TRUE COPY OF NOTICE NO.A7/5392/18 DATED 30/11/2018 ISSUED BY THE 8TH RESPONDENT.
EXHIBIT P17	TRUE COPY OF ORDER NO.A7/5392/18 DATED 04/01/2019 ISSUED BY THE 8TH RESPONDENT.
EXHIBIT P18	TRUE COPY OF REPORT DATED 13/12/2018 SUBMITTED BY THE 4TH RESPONDENT.
EXHIBIT P19	TRUE COPY OF REPLY DATED 10/1/2019 SUBMITTED BY THE PETITIONER BEFORE THE 8TH RESPONDENT.
EXHIBIT P20	TRUE COPY OF COMMUNICATION NO.A7/5392/18 DATED 16/1/2019 ISSUED BY THE 8TH RESPONDENT TO THE PETITIONER.
EXHIBIT P21	TRUE COPY OF COMMUNICATION NO.C3- 1172/2019 DATED 01/02/2019 ISSUED BY THE 4TH RESPONDENT TO THE 7TH RESPONDENT.

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EXHIBIT	P22 TRUE COPY OF REPRESENTATION DATED 02/02/2019 SUBMITTED BY THE PETITIONER TO THE 7TH RESPONDENT.
EXHIBIT	P22 A TRUE COPY OF ACKNOWLEDGMENT DATED 02/02/2019 ISSUED FROM THE OFFICE OF THE 7TH RESPONDENT.
EXHIBIT	P23 TRUE COPY OF REPRESENTATION DATED 02/02/2019 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.
EXHIBIT	P24 TRUE COPY OF COMMUNICATION DATED 13/2/2019 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT.
EXHIBIT	P25 PHOTOGRAPH OF THE ROOM SEALED BY THE PANCHAYAT.
EXHIBIT	P26 TRUE COPY OF DECISION OF THE 7TH RESPONDENT PANCHAYAT DATED 15/02/2019.
EXHIBIT	P27 TRUE COPY OF RECEIPT ISSUED BY 7TH RESPONDENT.

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RESPONDENT'S/S EXHIBITS:

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EXHIBIT R4(a):	TRUE COPY OF THE 08/03/2019.	REPORT OF THE DMO DATED
EXHIBIT R7(A)	TRUE COPY OF THE 05/07/2018.	MASS PETITION DATED
EXHIBIT R7(B)	TRUE COPY OF THE SUBMITTED BY THE	REPORT DATED 23/07/2018 DISTRICT MEDICAL OFFICER.
EXHIBIT R7(C)	TRUE COPY OF THE	NOTICE DATED 30/11/2018.
EXHIBIT R7(D)	TRUE COPY OF THE MEDICAL OFFICER	REPORT OF THE DISTRICT DATED 13/12/2018.
EXHIBIT R7(E)	TRUE COPY OF THE REJECTING THE AP PERMIT TO EXPAND	RESOLUTION NUMBER 26 PLICATION FOR BUILDING LICENSED PREMISES.

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EXHIBIT R7(F)	TRUE COPY OF THE CANCELING THE LIC	ORDER DATED 04/01/2019 ENSE OF THE 5TH RESPONDENT.
EXHIBIT R7(G)	TRUE COPY OF THE OF THE CMP LOCAL	LETTER SENT BY SECRETARY COMMITTEE.
EXHIBIT R7(H)	TRUE COPY OF THE ENDORSED BY DIREC TRIVANDRUM TO DEP MALAPPURAM.	LETTER DATED 13/02/2019 TOR OF PANCHAYAT, UTY DIRECTOR OF PANCHAYAT,
EXHIBIT R7(I)	TRUE COPY OF THE	LETTER DATED 15/02/2019.

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Sakeer Hussain, v. State of Kerala

Case brief

What is this about?

What did the court decide?

Sakeer Hussain, v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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