IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 7TH DECEMBER 2010 / 16TH AGRAHAYANA 1932 WP(C).No. 24669 of 2010(G) -------------------------- PETITIONER(S): --------------- 1. P.P.MUHAMMADALI, S/O.MUHAMMED, AGED 45 YEARS,PALASSERI PULIKKAL, P.O.KUTTOR NORTH,TIRURANGADY,MALAPPURAM DISTRICT. 2. P.MAJEED, S/O.MUHAMMED, PONNAMPARAMBATH HOUSE,FEROKE AMSOM, NALLUR DESOM, P.O.KURUVANTHURUTH,K OZHIKODE TALUK. 3. C.HASSSAN, S/O.IMBICHALI, CHERUKATTU VEEDU,PUTHUKAIPADAM,NALLUR, FEROKE,KOZHIKODE DISTRICT. 4. K.P.ALIKUTTY, S/O.UNNEENKUTTY, KARAIPADAM HOUSE,NALLUR, FEROKE, KOZHIKODE DISTRICT. BY ADV. SRI.P.V.KUNHIKRISHNAN MR.HANSON P.MATHEW RESPONDENT(S): --------------- 1. FEROKE GRAMA PANCHAYATH, REP.BY ITS SECRETARY,FEROKE P.O., KOZHIKODE-673635 2. STATE OF KERALA, REPRESETNED BY THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, THIRUVANANTHAPURAM - 6 95 101. 3. V.ABDUL KAREEM, S/O.IMBICHI BAVA, SHAJI COTTAGE,P.O.KARUVANTHIRUTHY, VIA FEROKE.PO., KOZHIKODE-673617. 4. N.ALI MOHAMMED, S/O.MOIDEEN HAJI, MINNATH MANZIL, KAVAPPURA, KALPAKANCHERRY P.O.,MALAPPURAM DISTRICT. PIN-676551. ADV. SRI.V.G.ARUN FOR R1 SRI.T.R.HARIKUMAR FOR R1 SR.T.K.SHIBU FOR R1 MR.K.RAMESH, GOVERNMENT PLEADER FOR R2 SRI.K.M.FIROZ FOR R3 & 4 SMT.M.SHAJNA FOR R3 & 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.24669/2010 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF LEASE DEED DATED 07/11/2009 EXECUTED BETWEEN THE 1ST PETITIONER AND OTHERS. P2 : COPY OF PHOTOGRAPHS SHOWING THE TEMPORARY SHEDS CONSTRUCTED IN THE PROPERTY OF THE 1ST PETITIONER BASED ON EXT.P1 LEASE DEED. P3 : COPY OF PHOTOGRAPH SHOWING THE PRESENT SITUATION OF THE MARKET OWNED BY THE PANCHAYAT BEARING NO.14/269 A. P4 : COPY OF JUDGMENT IN WP(C) NO.1749/10 DATED 19/01/2010. P5 : COPY OF ORDER NO.A4-7081/09 DATED 17/02/2010 PASSED BY THE 1ST RESPONDENT. P6 : COPY OF JUDGMENT IN WP(C) NO.6775/2010 DATED 11/06/2010. P7 : COPY OF NOTICE NO.A4 9492/10 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONERS DATED 23/07/2010. P8 : COPY OF ORDER NO.A4 9492/10 DATED 22/7/2010 OF THE SECRETARY, FEROKE GRAMA PANCHAYAT. P9 : COPY OF REPRESENTATION DATED 22/02/2010 SUBMITTED TO THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS R3(a) : COPY OF COMPLAINT DATED 10/11/2009 SUBMITTED BY THE RESPONDENTS 3 AND 4 BEFORE THE FIRST AND SECOND RESPONDENTS. R3(b) : COPY OF COMPLAINT DATED 16/11/2009 SUBMITTED BY THE MANAGEMENT OF FEROKE INSTITUTE OF MANAGEMENT STUDIES. R3(c) : COPY OF COMMUNICATION ISSUED BY THE SECRETARY OF THE PANCHAYAT DATED 17/04/2010. R3(d) : COPY OF PHOTOGRAPHS OF SOME PORTION OF THE PUBLIC MARKET OWNED AND MANAGED BY THE FIRST RESPONENT PANCHAYAT. //TRUE COPY// PA TO JUDGE. jg P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 24669 OF 2010 -------------------------- Dated this the 7th day of December, 2010 J U D G M E N T The first petitioner is the owner of a parcel of land approximately 10 cents in extent situated in Re-survey No.150/2B of Feroke Village, Kozhikode Taluk, Kozhikode District. The second petitioner took the said parcel of land on lease as per Ext.P1. He along with petitioners 3 to 4 and others thereafter starting vending fish in the said property. The land where petitioners 2 to 4 are conducting fish vending is situate adjacent to the public market run by the Feroke Grama Panchayat. Petitioners 2 to 4 have admittedly not obtained the permission of the local authority before establishing a market to vend fish in the land belonging to the first petitioner. Respondents 4 and 5 thereupon filed complaints before the local authority objecting to the fish market being run by the petitioners. They thereafter filed W.P.(C) No.1749 of 2010 in this Court. By Ext.P4 judgment delivered on 19.1.2010, a learned single Judge of this Court directed the Secretary of the first respondent Panchayat to consider the said objection and take an appropriate decision thereon with notice to the first petitioner herein, who was arrayed as WPC No.24669/2010 2 the fourth respondent in that writ petition. The Secretary of the first respondent Panchayat thereupon issued Ext.P5 notice calling upon the first petitioner to remove the structures in his land and to stop the private market being run by him therein. The petitioners thereupon filed W.P.(C) No.6775 of 2010 in this Court challenging Ext.P5 on the short ground that they were not heard before it was passed. This Court quashed Ext.P5 and directed reconsideration of the matter. The Secretary thereafter issued Ext.P7 show cause notice calling upon the petitioners to show cause why the unauthorised private market being run by them close to the licenced public market should not be closed down. The petitioners submitted their objections. They were heard and thereafter Ext.P8 order dated 22.7.2010 was passed whereby the Secretary of the first respondent Panchayat directed the petitioners to stop the business in fish vending in the private market situated in the lands belonging to the first petitioner. Ext.P8 is under challenge in this writ petition. 2. The petitioners contend that they are not doing fish vending in a private market, as alleged and found in Ext.P8 and that section 222 of the Kerala Panchayat Raj Act (hereinafter referred to as 'the Act' for short) has no application to the case on hand. It is WPC No.24669/2010 3 contended that the petitioners have a fundamental right to do business in their own lands and that the consent of the Panchayat is not required to sell fish in the land belonging to the first petitioner. The respondents have filed a counter affidavit supporting the stand taken by the Secretary of the local authority in Ext.P8. 3. I heard Sri. P.V.Kunhikrishnan, learned counsel appearing for the petitioners, Sri. V.G.Arun, learned counsel appearing for the first respondent, Sri. K.Ramesh, learned Govt. Pleader appearing for the second respondent and Sri. K.M.Firoz, learned counsel appearing for respondents 3 and 4. I have also considered the pleadings and the materials on record. It is evident from Ext.P1 and the findings and observations in Ext.P8 that in the land belonging to the first petitioner, a large number of persons including petitioners 2 to 4 are selling fish by opening separate stalls. The Secretary of the local authority has in Ext.P8 order noticed the fact that the petitioners have not obtained a licence from the local authority to vend fish or to establish a private market and that as the Panchayat has its own market about 200 metres away from the first petitioner's land where the petitioners are doing business, a private market cannot also be sanctioned. Reliance is placed on rule 25 of The Kerala Panchayat WPC No.24669/2010 4 Raj (Issuane of Licence and Control of Public and Private Markets) Rules, 1996 (hereinafter referred to as 'the rules' for short) and section 222 of the Act in support of the said contention. 4. Section 222 of the Act states that no person shall open a new private market or continue to keep open a private market unless he has obtained a licence from the Village Panchayat to do so. Such licence has to be got renewed by the licensee every year. Rule 9 of the rules stipulates that procedure to be followed for licensing of a private market. Rule 25 of the rules stipulates that in a Panchayat neither a new public market shall be opened nor a licence issued to a private market within a distance of three kilometres from an existing public or private market in the same Panchayat. The proviso to said rule stipulates that in the case of an evening market, such distance limit shall be one and a half kilometres from an existing evening market. 5. The petitioners have no case that they have obtained a licence from the local authority to run a private market. They also have no case that they have submitted an application in the prescribed form under rule 9 of the rules for obtaining a licence to open a new private market. The petitioners also do not dispute the WPC No.24669/2010 5 fact that within the distance of 200 metres from the land where they are doing business in vending fish, a public market established by the first respondent Panchayat is in existence. Though the learned counsel for the petitioners attempted to raise a contention that the business being carried on by the petitioners is not a market relying on the definition of the term 'Market' in section 223 of the Act, it is evident from the materials on record and Ext.P2 photographs that the land belonging to the first petitioners is being used as a private market. Ext.P2 photographs disclose that more than 6 persons are doing business in different stalls constructed in the said land which belongs to the first petitioner. In such circumstances, I am of the opinion that the challenge to Ext.P8 order is without any merit. I accordingly hold that there is no merit in the writ petitoin. The writ petition fails and is dismissed. P.N.RAVINDRAN, (JUDGE) vps WPC No.24669/2010 6 WPC No.24669/2010 7