Partly allowed

Farooq v., v. Pandikkad Grama Panchayath

Kerala HC18 Feb 2021WP(C)/21151/2020

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed the writ petition challenging a Panchayat resolution that rejected a licence application for a wholesale fish business. The court quashed the resolution, holding the Committee was not the competent authority; the case was remanded to the Secretary for a fresh consideration. The court did not examine whether the activity falls under the fish market rules.

What did the court decide?

Quash Ext.P9 resolution; direct Secretary to consider licence application; comply within 4 weeks after hearing party

Farooq v., Vs Pandikkad Grama Panchayath — Public Procurement and Tenders | Kerala HC (2021)

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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 P.B.SURESH KUMAR

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THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942

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WP(C).No.21151 OF 2020(T)

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PETITIONER:

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FAROOQ V., S/O.MUHAMMED V, VALAKKADAN HOUSE, THACHINGANADAM P.O., MALAPPURAM DISTRICT

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BY ADV. SRI.U.K.DEVIDAS

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RESPONDENTS:

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1 PANDIKKAD GRAMA PANCHAYATH

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PANDIKKAD P.O., MALAPPURAM DISTRICT-676 521, REPRESENTED BY ITS SECRETARY

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2 THE SECRETARY, PANDIKKAD GRAMA PANCHAYATH, PANDIKKAD P-O. MALAPPURAM DISTRICT-676 521.

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3 THE HEALTH INSPECTOR , FAMILY HEALTH CENTRE, PANDIKKAD, MALAPPURAM DISTRICT-676 521.

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4 THE DISTRICT MEDICAL OFFICER, (HEALTH) CIVIL STATION, B BLOCK, MALAPPURAM-676 505

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5 THE ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, REGIONAL OFFICE, MALAPPURAM-676 505.

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6 THE CONVENER, VALIYATHRAPADI JANAKIYA ACTION COMMITTEE, VALIYATHRAPADI, PANDIKKAD, MALAPPURAM DISTRICT-676 521.

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7 THE SUPERVISOR, ICDS, PANDIKKAD, MALAPPURAM DISTRICT-676 521.

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*ADDL R8 P.NEELAKANTAN NAMBEESAN

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WP(C).No.21151 OF 2020(T)

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S/O.NEELAKANTAN NAMBEESAN, AGED 92 YEARS, RESIDING AT 'KRISHNA NIVAS', VALLUVANGAD SOUTH P.O, PANDIKKAD, MALAPPURAM DISTRICT PIN - 676 521

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ADDL.R8 IS IMPLEADED AS PER ORDER DT.25/1/2021 IN I.A.NO.1/21 IN W.P.(C) NO.21151/20

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BY ADVS. SRI.K.M.SATHYANATHA MENON SMT.KAVERY S THAMPI SRI.T.A.SHAJI (SR.) SRI.S.ABHILASH VISHNU SRI.ATHUL SHAJI SRI.P.J.MATHEW SRI.EBIN MATHEW SMT.AKHILA SHOJI

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.21151 OF 2020(T)

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W.P.(C) No.21151 of 2020

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J U D G M E N T

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Petitioner intends to start wholesale fish business within the limits of the first respondent Grama Panchayat. For the said purpose, he preferred an application for licence before the Panchayat under the Kerala Panchayat Raj (Issue of Licence to Factories, Trades, Entrepreneurship activities and other services) Rules, 1996 (the Rules). The application has been rejected by the Committee of the Panchayat as per Ext.P9 resolution. The petitioner had in fact started the business without obtaining licence of the Panchayat, and the Panchayat, in the circumstances, interdicted the business of the petitioner as per Ext.P8 stop m emo. The writ petition was one instituted at that point of time challenging Ext.P8 stop memo. Later, when Ext.P9 decision was taken by the Panchayat, the writ petition was amended incorporating a challenge against Ext.P9 as well.

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Heard the learned counsel for the petitioner, the learned Standing Counsel for the Panchayat, the learned Senior Counsel for the sixth respondent as also the learned counsel for the additional eighth respondent.

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WP(C).No.21151 OF 2020(T)

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I am not examining the correctness of Ext.P9 decision of the Panchayat, for the main contention of the contesting respondents namely respondents 6 and 8 is that the petitioner is proposing to establish a fish market and therefore, what is required by him is a licence under the Kerala Panchayat Raj (Issuance of Licence And Control of Public and Private Markets) Rules, 1996 (the Market Rules) and that the petitioner has not even applied for the same. According to the learned counsel for the petitioner, the activity proposed by the petitioner is one that would fall within Entry 45 of schedule 1 to the Rules and therefore it is unnecessary for the petitioner to obtain licence under the Market Rules.

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Entry 45 of Schedule 1 to the Rules reads thus:

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“45. Fish - Storing, packing, cleansing, preparing, making other products or selling by means of using any process. “

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If the petitioner is undertaking an activity that falls within the scope of the said Entry, the petitioner is right in contending that he does not require a licence under the Market Rules. But, if the activity of the petitioner does not fall within the scope of the said Entry, having regard to the definition of 'market' contained in the Kerala Panchayat Raj Act, the petitioner has to obtain licence under the Market Rules. As noted, the said question has not been addressed by the

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WP(C).No.21151 OF 2020(T)

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Panchayat.

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That apart, it is seen that if the activity of the petitioner is one that falls within the scope of the Rules, the competent authority under the Rules to consider the application for licence is the Secretary of the Panchayat and not the Committee of the Panchayat. Ext.P9 decision of the Panchayat, in the circumstances, is liable to be interfered with, at a ny rate, on that sole ground.

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In the aforesaid facts and circumstances, the writ petition is disposed of quashing Ext.P9 resolution of the Panchayat and directing the Secretary of the Panchayat to consider the question as to whether the activity of the petitioner would fall within the scope of Entry 45 of schedule 1 to the Rules. It is also directed that if it is found that the activity of the petitioner is one that would fall within the scope of Entry 45 of Schedule 1 to the Rules, appropriate orders shall be passed on the application for licence under the Rules by the Secretary in accordance with law. If it is found that the activity is one that does not fall within the scope of Entry 45 of Schedule 1 to the Rules, the petitioner would be free to apply for licence under the Market Rules and in that event, the competent authority of the Panchayat shall consider the same in accordance with law. The directions aforesaid shall be complied with, after affording the

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WP(C).No.21151 OF 2020(T)

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petitioner as also respondents 6 and 8 an opportunity of hearing, within 4 week s from the date of receipt of a copy of the judgment. Needless to s ay that the petitioner will be entitled to run his business only after obtaining licence either under the Rules or under the Market Rules . The challenge against Ext.P7 communication of the third respondent is left open.

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Sd/P.B.SURESH KUMAR, JUDGE.

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WP(C).No.21151 OF 2020(T)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE CONSENT LETTER DATED 4.10.2019 ISSUED BY THE FIRTH RESPONDENT ALONG WITH SITE LOCATION PLAN EXHIBIT P2 TRUE COPY OF THE SITE APPROVED BY THE FIFTH RESPONDENT EXHIBIT P3 TRUE COPY OF THE LETTER DATED 25.9.2019 ISSUED BY THE FOURTH RESPONDENT TO THE SECOND RESPONDENT EXHIBIT P4 TRUE COPY OF THE LETTER DATED 4.6.2020 FROM THE POLLUTION CONTROL BOARD EXHIBIT P5 TRUE COPY OF THE APPLICATION DATED 8.6.20 EXHIBIT P5 (A) TRUE COPY OF THE CHELAN DATED 4.6.2020 EXHIBIT P6 TRUE COPY OF THE APPLICATION DATED 30.6.2020 EXHIBIT P7 TRUE COPY OF THE LETTER DATED 27.7.2020 EXHIBIT P8 TRUE COPY OF THE STOP MEMO DATED 9.9.2020 EXHIBIT P9 TRUE COPY OF THE ORDER DATED 13.10.2020 PASSED BY THE FIRST RESPONDENT.

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RESPONDENT'S EXHIBITS: EXHIBIT R2(A) TRUE COPY OF THE TAX RECEIPT DATED 3.4.2019 ISSUED BY VETTIKKATTIRI VILLAGE TO HAMSA. EXHIBIT R2(B) TRUE COPY OF THE TAX RECEIPT DATED 3.4.2019 ISSUED BY VETTIKKATTIRI VILLAGE TO AMINA.

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WP(C).No.21151 OF 2020(T)

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EXHIBIT R2(C)	TRUE COPY OF THE TAX RECEIPT DATED 3.4.2019 ISSUED BY VETTIKKATTIRI VILLAGE TO RUKHIYA.
EXHIBIT R2(D)	TRUE COPY OF THE POSSESSION CERTIFICATE DATED 13.2.2019 ISSUED BY VETTIKKATTIRI VILLAGE OFFICE TO HAMZA.
EXHIBIT R2(E)	TRUE COPY OF THE POSSESSION CERTIFICATE DATED 13.2.2019 ISSUED BY VETTIKKATTIRI VILLAGE OFFICE TO RUKHIYA.
EXHIBIT R2(F)	TRUE COPY OF THE POSSESSION CERTIFICATE DATED 8.2.2019 ISSUED BY VETTIKKATTIRI VILLAGE OFFICE TO RUKHIYA AND OTHERS.
EXHIBIT R2(G)	TRUE COPY OF THE BUILDING PERMIT N.A1- BA (101721)/2019 DATED 22.7.2019 ISSUED BY THE SECOND RESPONDENT.
EXHIBIT R2(H)	TRUE COPY OF THE DECISION NO.4(1) DATED 13.10.2020 OF THE PANDIKKAD GRAMA PANCHAYAT.
EXHIBIT R6(a):	TRUE COPY OF MASS REPRESENTATION DATED 26/07/2019 ADDRESSED TO THE CHIEF MINISTER, KERALA, DISTRICT COLLECTOR, DISTRICT MEDICAL OFFICER, ENVIRONMENTAL ENGINEER OF THE POLLUTION CONTROL BOARD, PANCHAYATH AND HUMAN RIGHTS COMMISSION.
EXHIBIT R6(b):	COPY OF THE PHOTOGRAPHS OF THE PROTEST MARCH ORGANIZED BY THE ACTION COMMITTEE.
EXHIBIT R8(a):	TRUE COPY OF THE REPRESENTATION DATED 7/01/2021

Farooq v., v. Pandikkad Grama Panchayath

Case brief

What is this about?

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Farooq v., v. Pandikkad Grama Panchayath

Case brief

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