Dismissed

The Mannarkkad Municipality v. Abdul Gafoor

Kerala HC24 Nov 2021WA/1555/2021

Case brief

AI extract

What is this about?

Revisional appeal filed by Mannarkkad Municipality challenging Single Judge order quashing rejection of trade licence application for private fish market. High Court held Municipality could not refuse licence based on mere apprehension neglecting Pollution Control Board consent; dismisses appeal.

What did the court decide?

Writ appeal dismissed; judgment of Single Judge allowing writ petition upheld; Municipal Council directed to consider application in light of expert clearance.

The Mannarkkad Municipality Vs Abdul Gafoor — Municipal and Town Planning | Kerala HC (2021)

¶1

W.A. No. 1555/2021 : 1 :

¶2

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶3

PRESENT

¶4

THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

¶5

¶6

THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

¶7

WEDNESDAY, THE 24^TH DAY OF NOVEMBER 2021 / 3RD AGRAHAYANA, 1943

¶8

WA NO. 1555 OF 2021

¶9

JUDGMENT DATED 30.09.2021 IN WP(C) 25817/2020 OF HIGH COURT OF KERALA

¶10

APPELLANTS/RESPONDENTS:

¶11

1 THE MANNARKKAD MUNICIPALITY REPRESENTED BY THE SECRETARY,

¶12

MANNARKKAD P.O. PALAKKAD DISTRICT 678 582.

¶13

2 THE SECRETARY, MANNARKAD MUNICIPALITY, MANNARKAD P.O., PALAKKAD DISTRICT -678 582.

¶14

3 THE MUNICIPAL COUNCIL., MANNARKAD MUNICIPALITY, MANNARKAD P.O., PALAKKAD DISTRICT -678 582.

¶15

BY ADV P.R.VENKATESH

¶16

RESPONDENTS/PETITIONER & 4TH RESPONDENT:

¶17

1 ABDUL GAFOOR

¶18

AGED 40 YEARS

¶19

S/O.HAMZA, NAMBIYATH HOUSE, KUNTHIPPUZHA, MANNARKKAD COLLEGE P.O., PALAKKAD, PIN-678 582.

¶20

2 THE ENVIRONMENT ENGINEER, DISTRICT OFFICE, KERALA STATE POLLUTION CONTROL BOARD, PALAKAKD-678 014.

¶21

R1 BY SRI.K.T.THOMAS FOR R1, R2 BY SRI.T.NAVEEN SC

¶22

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24.11.2021, THE

¶23

COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶24

W.A. No. 1555/2021

¶25

: 2 :

¶26

Dated this the 24^th day of November, 2021.

¶27

JUDGMENT

¶28

SHAJI P. CHALY,J.

¶29

The Mannarkkad Municipality, its Secretary and the Municipal Council, who were respondents 1 to 3 in W.P.(C) No. 25817 of 2020, have filed this appeal challenging the judgment of the learned single Judge dated 30.09.2021, whereby the learned single Judge allowed the writ petition, quashed Ext. P8 decision dated 22.10.2020 and P9 notice dated 02.1.2020 of the Municipality and Municipal Council respectively declining the prayer to grant trade licence to the first respondent/writ petitioner.

¶30

The learned single Judge has also directed the appellants to consider Ext. P12 application for licence submitted by the writ petitioner and to take a decision in the light of the findings contained in the judgment within a period of two months and also to issue licence to the writ petitioner, if he is otherwise eligible. It is, thus, challenging the legality and correctness of the said findings and directions, the appeal is preferred.

¶31

Brief material facts for the disposal of the writ appeal are as follows:

¶32

The writ petitioner took on lease a property having 50 cents

¶33

W.A. No. 1555/2021 : 3 :

¶34

situated in survey Nos. 70/1, 70/2 and 94/4 of Mannarkad Village in Palakkad District, and obtained a certificate to establish a private fish market from the Kerala State Pollution Control Board, Palakkad unit. Thereafter, the Pollution Control Board issued a consent to operate, evident from Ext. P2 dated 12.03.2019, which is valid upto 29.02.2014. The petitioner, thereafter, applied for licence before the Municipality and the same was rejected by the Municipal Council. Being aggrieved, the petitioner preferred W.P.(C) No. 13369 of 2019 and this Court, as per Ext. P3 judgment dated 01.07.2019, set aside the decision of the Municipal Council and directed the Secretary to consider the application submitted by the petitioner on merits.

¶35

Aggrieved by the same, the Municipality preferred W.A. No. 1666 of 2019 before a Division Bench of this Court. The appeal was partly allowed, as per Ext. P4 judgment dated 02.08.2019 directing the Secretary to consider the application dehors the findings of the learned single Judge that the business activity of the petitioner does not fall within the definition of 'market' as defined under Section 2(23) of the Act. Pursuant to the same, the Secretary has passed Ext. P5 order dated 31.08.2019 holding that application for the trade licence is to be considered by the Municipal Council.

¶36

The first respondent/writ petitioner again approached this

¶37

W.A. No. 1555/2021 : 4 :

¶38

Court by filling W.P.(C) No. 28599 of 2019 and this Court, as per Ext. P6 judgment dated 17.09.2020, held that the application for trade licence is to be considered by the Municipal Council and accordingly the Municipal Council was directed to take a decision on the application taking into account the consent to operate issued by the Pollution Control Board.

¶39

The Municipal Council, as per Ext. P8 decision dated 22.10.2020, rejected the application on the ground that the market is situated near Kunthipuzha which is the drinking water source of Mannarkkad Municipality, Thenkara Panchayat and Kumaramputhur Panchayat, and it would be polluted, if licence is granted, and thereby the public health would be affected. It was also observed that there should be a joint inspection by the Pollution Control Board in the presence of the members of the Council or the officials and therefore, grant of licence was declined. It is, thus, challenging the decision of the Chairman and the Municipal Council as per Exts.P8 and P9, the writ petition was filed.

¶40

The learned single Judge, after taking into account the rival submissions made across the Bar and basically holding that the apprehension voiced by the Chairman and the Municipal Council as per the impugned orders may not be correct, since the Kerala State Pollution Control Board had inspected the premises and initially

¶41

W.A. No. 1555/2021 : 5 :

¶42

granted consent to operate as per Ext. P1; that there were certain complaints at the stage of issuance of the consent to operate and thereupon, the Pollution Control Board conducted a hearing and directed the writ petitioner to take further preventive measures, such as construction of soak pit, septic tank, bio gas plant and metal sheet wall; and that the petitioner complied with the said conditions and thereafter alone Ext. P2 consent to establish was granted by the Pollution Control Board; the Pollution Control Board, being an expert body in the field of environmental pollution, including water pollution, it is to be presumed that the consent was given after proper examination of the project. Therefore, it was held by the learned single Judge that there is no material to support the concern of the Municipal Council that the market may pollute the water bodies and Drinking Water Projects and that the conclusion of the Municipality is not based on any materials.

¶43

The learned single Judge had considered the issue also analysing the proposition of law laid down by a Division Bench of this Court in Ramapuram Grama Panchayat v. St. Basil Industries India (P) Ltd. and others [2016 (2) KLT 219], in which it is held that when authorities have confirmed that the unit will not cause any environmental pollution and that there would not be any pollution or

¶44

W.A. No. 1555/2021 : 6 :

¶45

nuisance to the people at large, provided it functions are as per the conditions imposed by the said authorities, then it is not open to the local authority to take a different view in the absence of other expert materials and deny licence overruling the findings of the expert authorities. It was also found that the reason that the Pollution Control Board has inspected the premises not in the presence of Municipal Council or the Officers of the Municipality, also cannot be a ground to reject the statutory consents given by the Board and that the Board and its officers are discharging statutory functions in accordance with the provisions of the Environmental Laws.

¶46

The paramount contention advanced by the appellants in this appeal is that, the findings rendered by the learned single Judge that there is no material to support the concern of the Municipal Council that the market may pollute the nearby water body and the conclusion of the Municipality is not based on any materials, are not at all correct, since the proximity of the proposed site is a factor that ought to be taken note of, especially when it is only a few meters away. That apart, it is contended that the proposition of law laid down by this Court in St. Basil Industries (P) Ltd. (supra) would not apply to the instant case, as the case therein was in regard to the setting up of a quarry and the State Environmental Impact Assessment Authority

¶47

W.A. No. 1555/2021 : 7 :

¶48

(SEIIA) is monitoring the functions of the quarry; but, in the instant case, no such authority is monitoring. It is also contended that as per Section 25 of the Air (Prevention and Control of Pollution) Act, 1981, the State Board is the authority, which grants permission for establishing or taking any steps to establish the industry etc. However, the effluents are likely to discharge sewage and other waste to the nearby fresh water body and therefore, the Municipality had every reason and power to reject the licence.

¶49

That apart, it is contended that the Municipality is guided by clear provisions with respect to the grant of licence to a private market under Section 460 of the Kerala Municipality Act, 1994 ('Act, 1994' for short) and the other provisions thereto and therefore, the Municipality was entitled to reject the licence while considering the application submitted by the writ petitioner, if it was satisfied that the petitioner has not undertaken sufficient safeguards to avert discharge of effluent to the river in question. It is also contended that the Pollution Control Board, while granting consent to establish and operate, has not taken into account the provisions of the Act, 1994 and the power vested with the Municipal Council to take a decision in regard to the opening of the private markets.

¶50

On the other hand, the learned counsel appearing for the

¶51

W.A. No. 1555/2021 : 8 :

¶52

Pollution Control Board and the writ petitioner addressed arguments supporting the findings rendered by the learned single Judge.

¶53

We have heard the learned counsel for the appellants Sri. P. R Venkatesh, Sri. K.T. Thomas for the first respondent/writ petitioner and Sri. T. Naveen for the Kerala State Pollution Control Board, and perused the pleadings and materials on record.

¶54

The discussion of facts made above would make it clear that the contention advanced by the Municipality is that when it is vested with the power under the Act, 1994 to consider any application for starting a private market, it has got its own independent power to find out as to whether the opening of a private market would cause serious prejudice to the public at large and the environment. Section 460 of

¶55

the Act, 1994 is relevant for the consideration of the contentious issues advanced by the appellants and it reads thus:

¶56

"460. Licence for private markets .--(1)No person shall open a new private market or continue to keep open a private market except on a licence from the Municipality.

¶57

(2) Application for a licence under sub-section (1) shall be made by the owner of the place in respect of which the licence is sought to be renewed, not less than six weeks before the expiry of the period for which the licence has been granted and in the case of a new market, six weeks before the date on which the market is proposed to be opened.

¶58

W.A. No. 1555/2021

¶59

: 9 :

¶60

(3) The Municipality shall, as regards private markets already established and may, at its direction as regards new private markets grant the licence applied for subject to such regulations as to supervision and inspection and to such conditions as to sanitation, drainage, water supply, width of paths and ways, weights and measures to be used and rents and fees to be charged in such market as it may think proper or it may, for reasons to be recorded in writing, refuse to grant any such licence for any new private market. The Municipality may, however at any time, modify the conditions of a licence to take effect from any specified date or suspend or cancel any licence for breach of any conditions thereof.

¶61

(4) Where a licence is granted, refused, modified, suspended or cancelled under this section, the Municipality shall cause a notice of such grant, refusal, modification, suspension or cancellation in English and the language of the locality to be pasted in some conspicuous place at or near the entrance to the place in respect of which the licence was sought or had been obtained.

¶62

(5) Every licence granted under this section shall expire at the end of the year in which it is granted,

¶63

[Explanation.-- For the purpose of this section private market includes also a shopping complex having more than six shop rooms.)

¶64

Therefore, on an analysis of the said provision, it is clear

¶65

that as per sub-Section 3, the Municipality is vested with powers to supervise, inspect, and impose such conditions as to sanitation, drainage, water supply etc. while granting licence. It is true, the

¶66

W.A. No. 1555/2021 : 10 :

¶67

Municipality is vested with powers to refuse the licence to any new private market; however, adequate reasons should be furnished in the order rejecting the licence.

¶68

This is a case where the Municipal Council has rejected the application for licence holding that since Kunthipuzha is passing near to the property in question, there is every likelihood of the water being contaminated and thereby, adverse consequences would occur to the drinking water source of the appellant Municipality as well as the nearby Panchayats.

¶69

On a reading of Ext P9, what we could gather is that apart from the said apprehension, no reasons are assigned for refusing the licence. It may be true, the Municipality is vested with powers to impose conditions in the licence. But, that is quite different from the rejection of the application for licence on a mere apprehension. Moreover, the Pollution Control Board is a statutory authority functioning under various Environmental Laws and notifications issued by the Central as well as the State Governments, and in order to ensure safety, at first the consent to establish is issued and thereafter taking into account all the parameters and the precautionary measures taken by the Industrialists and the operators, the consent to operate is granted by the Pollution Control Board.

¶70

W.A. No. 1555/2021

¶71

: 11 :

¶72

When the first respondent/writ petitioner has produced the consent to establish and operate issued by the Pollution Control Board before the Municipality, it should have taken into account the said consent and ought to have objectively assessed as to whether there is a likelihood of the water being polluted consequent to the conduct of the private market, and whether the measures undertaken by the writ petitioner was in terms of the provisions of the Act, 1994. No such exercise was undertaken by the Municipality.

¶73

Anyhow, on an analysis of Section 463 of the Act, 1994, the Municipality is vested with powers to regulate the private market. The said provision is relevant for the appreciation of the contention advanced by the Municipality and it reads thus:

¶74

Power of Municipality in respect of private market.-- A Municipality may, by notice, require the owner, occupier or farmer of any private market to-

¶75

(a) construct approaches, entrances, passages gates, drains and cess pits for such market and provide it with latrines of such description and in such position and number as the Municipality may think fit.

¶76

(b) roof and pave the whole or any portion of it or pave any portion of the floor with such materials as will in the opinion of the Municipality secure imperviousness and ready cleansing;

¶77

¶78

(d) provide passages of sufficient width between the stalls and make such alterations in the stalls, passages, shops, doors or other parts of the markets as the Municipality may direct; and

¶79

W.A. No. 1555/2021

¶80

: 12 :

¶81

(e) keep it in a cleanly and proper state and remove all filth and refuse therefrom.

¶82

That apart, Section 464 of the Act, 1994 enables the Municipality to suspend the licence and sub-Section (1) thereto clearly stipulates that where any person, after notice given to him in that behalf by the Municipality, fails within the period and in the manner specified in the said notice to carry out any of the works specified in Section 463, the Municipality may suspend the licence of the said person or may refuse to grant to him a licence, until such works have been completed. Sub-Section (2) thereto prohibit a person from opening or keeping open any such market after suspension or refusal of the licence.

¶83

That apart, Section 465 empowers the Municipality to prohibit nuisance in private market and it specifies that no owner, occupier agent or manager in charge of any private market or of any shop, stall, shed or other place therein shall keep the same so as to cause a nuisance or shall fail to cause anything that is a nuisance to be at once removed to a place to be specified by the Municipality,

¶84

Above all, Section 466 of Act, 1994 empowers the Municipality to close private market and it stipulates that the Secretary or any officer duly authorised by him in that behalf may close any

¶85

W.A. No. 1555/2021 : 13 :

¶86

private market in respect of which no licence has been applied for or the licence for which has been refused, withheld or suspended or which is held or kept open contrary to the provision of this Act. Other enabling provisions are also there which confer the right on the Municipality to control and regulate the private market.

¶87

On a deep seated analysis of the above said provisions of the Act, 1994, one thing is clear that the Municipality is vested with ample powers to regulate and control a private market and therefore, the mere apprehension voiced by the Municipality that if a licence is granted, it may pollute the nearby river, cannot be sustained under law. It is with the intention of preventing pollution and regulating the private markets, such imperative provisions are included in the Act, 1994.

¶88

On a reading of Section 463 of Act, 1994, it is clear that even after the issuance of the licence, if the Municipality finds that the licensee is not abiding the conditions of the licence in terms of the provisions discussed above, Municipality is vested with ample powers to suspend the licence and require the licensee to take adequate steps in accordance with the provisions of law to abate the nuisance etc.

¶89

Thus, bearing in mind the above factual and legal circumstances, we are undoubtedly of the opinion that the appellants

¶90

W.A. No. 1555/2021

¶91

: 14 :

¶92

have not made out a case for interference with the judgment of the learned single Judge, there being no jurisdictional error or any other legal infirmities justifying us to do so.

¶93

Needless to say, writ appeal fails and accordingly, it is dismissed.

¶94

sd/-

¶95

S. MANIKUMAR, CHIEF JUSTICE.

¶96

sd/-

¶97

SHAJI P. CHALY,

¶98

JUDGE.