Sanoop Rajan vs. Ettumanoor Municipality - Kerala High Court, 26 August 2020

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS WEDNE AY, THE 26TH DAY OF AUGUST 2020 / 4TH BHADRA, 1942 WP(C).No.16945 OF 2020(P) PETITIONER: SANOOP RAJAN AGED 34 YEARS S/O RAJAN.V.P,VAKAVAYALIL(H), TEEKOY.P.O,KOTTAYAM DISTRICT-686580. BY ADVS. SRI.JUSTINE JACOB SRI.K.S.ARUN KUMAR RAJEE P MATHEWS SMT.AMRUTHA P S SMT.AMRUTHA K P RESPONDENTS: 1 ETTUMANOOR MUNICIPALITY REPRESENTED BY ITS SECRETARY, ETTUMANOOR.P.O, KOTTAYAM DISTRICT-686631. 2 THIE SECRETARY, ETTUMANOOR MUNICIPALITY, ETTUMANOOR.P.O, KOTTAYAM DISTRICT-686631. 3 HEALTH INSPECTOR, ETTUMANOOR MUNICIPALITY, ETTUMANOOR.P.O, KOTTAYAM DISTRICT-686631. R1-3 BY SRI.SIBY CHENAPPADY, SC, ETTUMANOOR MUNICIPALITY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No.16945 OF 2020(P) 2 ALEXANDER THOMAS, J. ------------------------------------------- W.P.(C)No.16945 of 2020 ---------------------------------------------- Dated this the 26th day of August, 2020 JUDGMENT The case set up in this Writ Petition (Civil) is as follows:- The petitioner approaches this Court under Article 226 of the constitution of India, being aggrieved by the rejection of his trade license. He had obtained Exhibit P1 consent to operate from Pollution Control Board, Exhibit P2 certificate of registration for stocking and selling and/or processing of minerals under the Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules 2015 and Exhibit P3 GST registration. Thereafter he applied for the license for stocking and trading metal chips, sand, and rubble before the 1st respondent. Along with the application petitioner submitted all required documents but vide Exhibit P5 notice, the 3rd respondent intimated the petitioner that his application for license is rejected on ground that the neighbors has complained about the pollution. The Pollution Control Board is the competent authority to speak about the pollution and they have granted Exhibit P1 consent to operate. Therefore it is not open for

WP(C).No.16945 OF 2020(P) 3 the Panchayath to take a different view and deny license. The dictum laid down in Ramapuram Grama Panchayath V. St. Basil Industries (P) Ltd and others(2016 (2) KLT 219) that, it is not open for the Panchayath to take a different view from what has taken by the expert authority is squarely applicable in this case. It is in the light of the above factual averments and contentions that the petitioners have filed instant Writ Petition (Civil) with the following prayers:- “1. Issue a writ of certiorari or any other appropriate writ, order or direction, to call for the records relating to Exhibit P5 notice dated 02.03.2020 and quash the same.

Issue a Writ of Mandamus or any other appropriate Writ, Order or direction, allowing petitioner’s application for trade license with respect to which Exhibit P4 have been issued and direct the Respondents to issue trade license to the petitioner forthwith.

To grant such other relief, as this Hon’ble Court deems fit and proper to grant in the facts and circumstances of the case. ”

Heard Sri.Justin Jacob, learned counsel appearing for the petitioner and Sri.Siby Chenappady, learned Standing Counsel for Ettumanoor Municipality, appearing for respondents.

The case of the petitioner is that he has already submitted Ext.P-4 application dated 17.02.2020, for grant of trade licence for storing and trading of metal chips, sand and

WP(C).No.16945 OF 2020(P) 4 rubbles, etc. which is pending before the 2nd respondent- Secretary of the Ettumanoor Municipality since 02.03.2020 as is acknowledged in Ext.P-5 receipt dated 02.03.2020. Further that, petitioner has already obtained consent to operate and the said trade as can be seen from Ext.P-1 dated 14.10.2019, issued by the Kerala State Pollution Control Board (KSPCB) and Exts.P-2 & P-3 are the registration for stocking and selling of such minor minerals as well as the GST registration, respectively. Now, without affording reasonable opportunity of being heard to the petitioner and on the basis of an inspection conducted behind and back of the petitioner, the 2nd respondent-Secretary of Ettumanoor Municipality has informed that the petitioner's application for grant of trade licence cannot be considered. Consequently, the 2nd respondent has also issued Ext.P-5 notice dated 02.03.2020interdicting the petitioner from conducting his trade.

After hearing both sides it is seen that Exts.P-5 & P-6 have been passed without affording reasonable opportunity of being heard to the petitioner and on the basis of an inspection said to have been conducted behind and back of the petitioner and also without serving a copy of the said copy of the

WP(C).No.16945 OF 2020(P) 5 said inspection report. Moreover, a reading of Exts.P-5 & P-6 would indicate that none of the crucial parameters laid down by a full Bench of this Court in the judgment in Tomy Thomas V. State of Kerala [2019 (3) KLT 987 (FB)] has been taken into consideration by the 2nd respondent-Secretary of Ettumanoor Municipality while passing orders in the nature of Exts.P-5 & P-6. Hence, solely for the reason of blatant violation of the principles of natural justice the matter would require interdiction.

The petitioner would urge that he has secured all necessary permissions to conduct the above said trade as can be seen from Ext.P-1 statutory consent issued by the Kerala State Pollution Control Board, Ext.P-2 certificate of registration for stocking and selling and/or processing of minor minerals as per the Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules, 2015 framed under the Mines and Minerals (Development and Regulation) Act, 1957, and Ext.P-3 GST (Goods and Services Tax) registration issued by the competent authority in that regard. Hence it is urged that going by the dictum laid down by the full Bench of this Court in Tomy Thomas's case (supra), in a case where the person who

WP(C).No.16945 OF 2020(P) 6 seeks for grant or renewal of trade licence has secured all necessary permissions from the competent regulatory authorities concerned, then the Panchayat /Municipal Secretary has no discretion to refuse the grant /renewal of trade licence, if at all there are any complaints against the conduct of the said trade, it is for the Panchayat/Municipal Secretary concerned to forward such complaints to the competent regulatory authority concerned for their examination and action, in accordance with law.

In the light of all these aspects, it is ordered that Exts.P-5 & P-6 will stand set aside and quashed. The application dated 17.02.2020, submitted by the petitioner for grant of trade licence, as referred to in Ext.P-4 will stand remitted to the 2nd respondent-Secretary of the Ettumanoor Municipality for consideration and decision afresh. The 2nd respondent will afford reasonable opportunity of being heard to the petitioner as well as any objectors who have given their written objections in that regard and examine whether the petitioner has secured all the requisite permissions/licences for conducting the trade in question and also ascertain the aspects borne out from Exts.P-1 to P-3, etc., and thereafter should pass

WP(C).No.16945 OF 2020(P) 7 orders on the application for grant of trade licence, strictly observing the dictum laid down by the full Bench of this Court in Tomy Thomas's case (supra). Orders in this regard should be passed afresh by the 2nd respondent-Secretary of Ettumanoor Municipality within a period of three weeks from the date of receipt of a certified copy of this judgment.

While passing such orders, the 2nd respondent- Secretary of Ettumanoor Municipality shall bear in mind that in a case of the party who has secured all the requisite licence, permissions, consents, etc., from the competent regulatory authority concerned, then the functionary like the Panchayat Secretary or Municipal Secretary that has no discretion to refuse grant or renewal of trade licence as has been held by the full Bench of this Court in Tomy Thomas's case (supra) in view of the amended provisions of the Kerala Panchayat Raj Act and the Kerala Municipalities Act and the Rules framed thereunder.

The petitioner will produce certified copies of this judgment as well as copies of the memorandum of this writ petition (civil) along with all the exhibits before the 2nd respondent-Secretary of Ettumanoor Municipality for necessary information and further action.

WP(C).No.16945 OF 2020(P) 8 With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. ALEXANDER THOMAS, JUDGE Skk//14092020

WP(C).No.16945 OF 2020(P) 9 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1OF CONSENT TO OPERATE FROM PCB DATED 14/10/2019 EXHIBIT P2OF CERTIFICATE OF REGISTRATION FOR STOCKING AND SELLING AND/OR PROCESSING OF MINERALS DATED 30/09/2019 EXHIBIT P3OF GST REGISTRATION DATED 29/08/2019 EXHIBIT P4OF THE RECEIPT DATED 17/02/2020 ISSUED FROM THE 2ND RESPONDENT OFFICE. EXHIBIT P5OF THE NOTICE DATED 02/03/2020 OF 3RD RESPONDENT EXHIBIT P6OF THE STOP MEMO ISSUED BY 2ND RESPONDENT DATED 24/02/2020. EXHIBIT P6(A)OF THE REPLY LETTER TO 2ND RESPONDENT DATED 28/02/2020. RESPONDENTS' EXHIBITS: NIL