IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 2ND MARCH 2010 / 11TH PHALGUNA 1931 WP(C).No. 14007 of 2009(U) -------------------------- PETITIONER(S): ------------------ P.MUJEEB RAHMAN, AGED 31 YEARS, S/O.AVARAN KUTTY HAJEE, ZAIBOONA MANZIL, RAMANATTUKARA P.O., KOZHIKODE DISTRICT. BY ADV. SRI.T.RAMPRASAD UNNI SMT.SMITHA GEORGE RESPONDENT(S): ------------------ 1. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. 2. M.ABDUL NADEER, MARANGATTU, POYIL THODU, CHELAMBRA P.O., MALAPPURAM. 3. THE RAMANATTUKARA GRAMA PANCHAYATH RAMANATTU KARA, MALAPPURAM DISTRICT, REPRESENTED BY ITS SECRETARY. 4. THE SECRETARY, THE RAMANATTUKARA GRAMA PANCHAYATH, RAMANATTU KARA, MALAPPURAM DISTRICT. ADV. SRI.V.G.ARUN FOR R2 SRI.T.R.HARIKUMAR FOR R2 SRI.K.JAYAKUMAR FOR R3,4 SRI.P.B.KRISHNAN FOR R3,4 SRI.NEELAKANDAN P.M. GOVT.PLEADER SRI.V.MANU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.14007/09 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE DECISION OF THE 3RD REPODNENT DT 25.11.2008. EXT.P2: TRUE COPY OF THE REVISION PETITION FILED BY THE 2ND RESPONENT BEFORE R1. EXT.P3: TRUE COPY OF THE NOTICE DTD.2.1.2007 ISSUED BY R3 PANCHAYAT. EXT.P4: TRUE COPY OF THE LETTER DTD.21.2.2007 SUBMITTED BY R2 BEFORE R3. EXT.P5: TRUE COPY OF THE ORDER DT 9.4.2007 PASSED BY 3RD RESPONDENT PANCHAYAT. EXT.P6: TRUE COPY OF THE WRITTEN STATEMENT DTD.11.2.2009 FILED BY THE PETITIONER BEFORE R1. EXT.P7: TRUE COPY OF THE ORDER DT 13.5.2009 PASSED BY THE 1ST RESPONDENT IN REVISION PETITION NO.129 OF 2009. EXT.P8: TRUE COPY OF THE APPLICATION FOR STAY DTD.DECEMBER 2008 SUBMITTED BY THE 2ND RESPONDENT BEFORE R1. EXTS. OF R2 EXT.R2(a): COPY OF THE SANITARY CERTIFICAT DT 31.10.2006. EXT.R2(b): COPY OF THE JUDGMENT INW PC NO.15571 OF 2007 DT 11.12.2007. EXT.R2(c): COPY OF THE REPLY ISSUED BY THE 4TH RESPONDENT DT 5.5.2008. EXT.R2(d): COPY OF THE DECISION DT 9.4.2008. EXT.R2(e): COPY OF THE JUDGMENT IN WPC NO.27101 OF 2008 DTD.23.9.2008. EXT.R2(f): COPY OF THE APPEAL MEMORANDUM. EXT.R2(g): COPY OF THE MASS PETITION. EXT.R2(h): COPY OF THE NEWSPAPER REPORT PUBLISHED IN MALAYALA MANORA DAILY DT.30.5.2008. EXT.R2(i): A COPY OF THE SAID REPLY DT 8.1.2010. //TRUE COPY// PA TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 14007 OF 2009 (U) ===================== Dated this the 2nd day of March, 2010 J U D G M E N T Petitioner challenges Ext.P7 order passed by the Tribunal for Local Self Government Institutions in Revision Petition No.129/08 filed by the 2nd respondent. 2. Briefly stated, the facts of the case are that, on 27/11/2006, 2nd respondent made an application to the 3rd respondent Panchayat for the issue of a licence for starting a chicken stall. According to the 2nd respondent, along with the application, he had also produced Ext.R2(a), a sanitary certificate issued by the Health Inspector. The Panchayat did not pass any order on the application so made, and therefore, on the expiry of one month, on the basis that a deemed licence has accrued in his favour in terms of Section 236(3) of the Kerala Panchayat Raj Act, the 2nd respondent started his chicken stall. 3. At that stage, 3rd respondent issued Ext.P3 notice requiring the 2nd respondent to close down the chicken stall, to which, the 2nd respondent submitted Ext.P4 reply contending that in view of the inaction of the Panchayat, he had a valid deemed WPC No. 14007/09 :2 : licence, and therefore, there is no reason to close down the chicken stall. It is stated that despite the reply so given, 4th respondent forcefully closed down the shop, which made the 2nd respondent to file WP(C) No.15571/07 before this Court. That writ petition was disposed of by Ext.R2(b) judgment directing the Secretary to consider and pass orders on the licence application made by the 2nd respondent. It was further directed that the possession of the shop and keys of the shop will also be returned to the 2nd respondent. 4. Accordingly, the licence application made by the 2nd respondent was considered and Ext.R2(d) order dated 9/4/2008 was passed. In this order, reference has been made to a resolution of the Panchayat passed on 9/4/2008 and it is stated that only at places designated by the Panchayat, could licence for chicken stalls be allowed, and as the licence sought for was in respect of a place which was not so designated, the application was rejected. Again the 2nd respondent filed WP(C) No.27101/08 before this Court challenging Ext.R2(d). That writ petition was disposed of by Ext.R2(e) judgment relegating the 2nd respondent to file an appeal against Ext.R2(d) order. 5. Accordingly, the 2nd respondent filed an appeal to the WPC No. 14007/09 :3 : Panchayat invoking the appellate remedy available under Section 276(1) of the Kerala Panchayat Raj Act Act and appeal was considered and was again rejected by Ext.P1 order. The reason stated in Ext.P1 is the same as those stated in Ext.R2(d). Against Ext.P1 order, the 2nd respondent filed Ext.P2 revision before the 1st respondent Tribunal, as provided under Section 276(5) of the Kerala Panchayat Raj Act. By Ext.P7 order, the Tribunal allowed the revision. 6. In Ext.P7 order, it has been held that inspite of repeated directions, the Panchayat did not produce the entire files and hence adverse inference was drawn. It is also held that rejection of the 2nd respondent's application was on the basis of the decision of the Panchayat dated 9/4/2008, and that by the time the decision was passed, the deemed licence in terms of Section 236(3) of the Act had accrued in his favour. Tribunal has also held that in terms of the provisions contained in Section 232 of the Kerala Panchayat Raj Act, if an application for licence is received, it is for the Secretary to consider and pass orders thereon, uninfluenced by the Panchayat or its President or any members. It is stated that in this case, Ext.R2(d) order was passed on the basis of the Panchayat's decision dated 9/4/2008, WPC No. 14007/09 :4 : and therefore, there is violation of Section 185 B of the Kerala Panchayat Raj Act. It is also held that it was beyond the power of the Panchayat to have taken a general policy decision not to licence any chicken stalls outside the Panchayat market, and that, for that reason also, the decision of the Panchayat was held bad. 7. The Panchayat has not challenged Ext.P7 order of the Tribunal, but a private individual, who got himself impleaded in the proceedings before the Tribunal has chosen to challenge the order by filing this writ petition. The contention raised by the counsel for the petitioner is that the rejection for the licence application made by the 2nd respondent was based on the policy decision taken by the Panchayat on 9/4/2008. It is stated that the policy decision of the Panchayat is as reflected in the resolution passed by the Panchayat, and that, it was impermissible for the Tribunal to have sat in appeal over the said resolution of the Panchayat. He also contended that it was well within the power of the Panchayat to decide that for reasons of hygiene, the Panchayat will not grant license for any chicken stalls outside the market established by it. He therefore contended that the decision of the Tribunal as per Ext.P7 is illegal. 8. Counsel for the 2nd respondent argued to sustain Ext.P7 WPC No. 14007/09 :5 : order of the Tribunal. According to him, the Panchayat could not have passed any general decision not to licence any chicken stalls outside the market area. In order to substantiate this contention, counsel relied on the judgment of this Court in Beerankutty v. Sulthan Bathery Grama Panchayat (2003(3) KLT 256). He also made reference to Ext.R2(c) and Ext.R2(i) to contend that there is no such policy decision, and that even if there was any policy decision, Panchayat itself has acted in departure thereof. 9. Answering the plea of the petitioner that the Tribunal could not have sat in judgment over the resolution of the Panchayat, counsel for the 2nd respondent pointed out that it was open to the Tribunal to have examined the validity of a resolution. He placed reliance on Antony v. Chellanam Grama Panchayat (2009 (3) KLT 334) in support of this proposition. He also argued that he filed appeal against Ext.P1 order and therefore the appeal filed by him was maintainable before the Tribunal. 10. I have considered the submissions made. 11. The question that is required to be considered is the correctness of the conclusion of the Tribunal that it was impermissible for the Panchayat to introduce a regulation not to allow any chicken stalls outside the Panchayat market. In my WPC No. 14007/09 :6 : view, the fate of this litigation will substantially depend upon the conclusion of this debatable issue. As is seen from the proceedings in this case, the licence application made by the 2nd respondent was rejected by Ext.R2(d) order dated 9/4/2008. A perusal of Ext.R2(d) shows that reliance is placed on a resolution passed by the Panchayat on 9/4/2008 not to allow any chicken stalls outside the market established by it. It is on this basis, the application has been rejected. 12. Both in Ext.R2(d) and Ext.P1, the order passed by the Panchayat declining licence application made by the 2nd respondent, the reason stated is that the Panchayat has by its decision dated 9/4/2008 resolved not to grant licence for chicken stalls outside the market. According to the Panchayat, in view of the provisions contained under Section 221 enabling the establishment of public markets, and the Kerala Panchayat Raj (Issuance of Licence and Control of Public and Private Markets) Rules 1996, it is entitled to take such a decision. Reference was made to Rule 4 of the Rules referred to above enabling the Panchayat to set apart separate stalls for particular commodities. However, as rightly pointed out by the counsel for the 2nd respondent, the fact that the Panchayat has a shopping complex WPC No. 14007/09 :7 : is no reason to conclude that the Panchayat can by virtue of that fact, prevent the citizens from establishing business places outside the markets established by the Panchayat. Rule 4 providing for setting up separate stalls for particular commodities, in my understanding, only enables the Panchayat to set apart stalls inside the market either public or private, for sale of particular commodities. That does not in any manner mean that business in such commodities can be carried on only in the stalls so set apart by the Panchayat. 13. Although, counsel for the petitioner made reference to various provisions of the Kerala Panchayat Raj Act, I was not shown any other provision in the Panchayat Raj Act enabling the Panchayat to take a decision as it has done on 9/4/2008, about which reference has been made in the earlier portion of this judgment. This view that I have taken, is fully supported by the judgment in the case of Beerankutty v. Sulthan Bathery Grama Panchayat (2003(3) KLT 256), paragraphs 5 to 7 of which being relevant, is extracted below for reference. 5. The Panchayat has a shopping complex, but that is no reason for them to insist that the petitioner is not entitled to carry on the business in his own premises. He has a fundamental right to carry on a business of his choice. He knows the ins and outs of the trade, and WPC No. 14007/09 :8 : nothing else and he cannot be compelled to keep the premises in his possession idle and unproductive. Such a restriction will be illegal. His application therefore deserves consideration on its merits. 6. In the matter of controlling public and private markets, the governing rule is brought about by S.R.O.No.570/96, the Kerala Panchayat Raj (Issuance of Licence and Control of Public and Private Markets) Rules, 1996. Under R.4, separate stalls could be segregated for sale of different items. The stalls could be auctioned out, by public bid. This is to be restricted to one year. Persons occupying such rooms are to abide by the strict conditions generally laid down. Thus, the activities of a stall owner is subjected to severe restriction. 7. That may not be a case in respect of a private stall owner. S.R.O.No.289/96 governs them, the provision being the Kerala Panchayat Raj (Slaughter House and Meat Stalls), Rules, 1996. R.38 stipulates that the shop should be in a premises which is authorised by the Panchayat. But this does not give the Panchayath power to prohibit sale in private premises altogether. The fact that the petitioner was engaged in such sale for over ten years also cannot be ignored. What has to be ensured is neatness, and ethics. 14. If this be the legal position, the decision of the Panchayat not to allow chicken stalls outside the market established by it, cannot be sustained. 15. The other question that arises for consideration is whether it was permissible for the Tribunal to have sat in judgment over a resolution passed by the Panchayat. According to the counsel for the petitioner, power of cancellation and suspension of resolutions is within the exclusive power of the Government, which has been conferred by Section 191 of the WPC No. 14007/09 :9 : Kerala Panchayat Raj Act. However, counsel for the 2nd respondent brings to my notice Section 191(3) which provides that if another remedy is available to a person through the Tribunal for Local Self Government Institutions under Section 276 of the Panchayat Raj Act, the Government shall not consider any petition for cancelling or amending any resolution or decision of the Panchayat. In this case, although resolution was passed by the Panchayat on 9/4/2008, the 2nd respondent filed his revision before the Tribunal aggrieved by Ext.P1 order rejecting his appeal against Ext.R2(d) order. Even if it is taken that the revision involves the challenge against the validity of the resolution of the Panchayat dated 9/4/2008, in my view, since what was invoked by the 2nd respondent was his remedy under Section 276 of the Panchayat Raj Act, Section 191(3) applies in such cases and it was open to the Tribunal to have examined the validity of the resolution as well. My attention is also drawn to the judgment of this Court in Antony v. Chellanam Grama Panchayat (2009(3) KLT 334), where this Court has taken the view that in view of the provisions contained in Rule 21 of the Tribunal for Local Self Government Institutions Rules, 1999, it has powers to set aside resolution of the Panchayat as well. WPC No. 14007/09 :10 : 16. Therefore, in my view, it was perfectly within the power of the Tribunal to have examined the validity of the resolution, and therefore, on that ground also, no fault can be found for the view taken by the Tribunal in Ext.P7. 17. Even apart from all this, it should be stated that from Ext.R2(c) and Ext.R2(i) documents produced by the 2nd respondent, it is seen that the Panchayat had licensed chicken stalls outside the area designated as market by it. Both these documents show that such licensing was after the general policy decision was taken by the Panchayat. If such a departure is permissible, I see no reason why the Panchayat should have taken a different attitude when it considered the application made by the 2nd respondent alone. 18. For these reasons, I am inclined to think that the Tribunal was perfectly justified in rendering Ext.P7 order allowing the revision filed by the 2nd respondent. Writ petition therefore fails and is dismissed. ANTONY DOMINIC, JUDGE Rp