IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 7TH JANUARY 2011 / 17TH POUSHA 1932 WP(C).No. 11769 of 2010(U) -------------------------- PETITIONER(S): --------------- LIYAKATH ALI, S/O.ALI, KIZHAKUMPARAMBIL HOUSE, KARUVAMBARA, MALAPPURAM DISTRICT. BY ADV. SRI.SAJEEV KUMAR K.GOPAL SMT.AMBIKA RADHAKRISHNAN RESPONDENTS: --------------- 1. THE MANJERI MUNICIPALITY REP.BY ITS SECRETARY. 2. THE SECRETARY, MANJERI MUNICIPALITY. ADDL R3. THE MANJERI MUNICIPALITY DAILY MARKET- FRESH FISH VENDORS ASSOCIATION, MANJERI, REPRESENTED BY ITS VICE PRESIDENT, C.ABDUL AZEEZ, S/O.ABDULLAKUTTY, CHOLAKKAL HOUSE, CHANDAKUNNU, MANJERI.P.O., MALAPPURAM DISTRICT (ADDL R3 IMPLEADED AS PER ORDER DTD 06.07.2010 IN I.A.8928/10) ADV. SRI.K.P.MUJEEB FOR ADDL.R3 SRI.M.P.ASHOK KUMAR FOR R1 & 2 SRI P VENUGOPAL FOR ADDL R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/01/2011, ALONG WITH WPC NOS. 17861 AND 38771OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 11769 of 2010 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : APPLICATION SUBMITTED BY the PETITIONER BEFORE THE RESPONDENTS FOR THE GRANT OF A LICENCE FOR THE SALE OF FRESH FISH FOR THE YEAR 2009-2010 IN BUILDING NO. 16/915 EXHIBIT P2 : CHALLAN REGARDING PAYMENT OF LICENCE FEE EXHIBIT P3 : NO OBJECTION ISSUED BY the BUILDING OWNER SO AS TO CONDUCT SALE OF FISH IN the BUILDING EXHIBIT P4 : COVERING LETTER ACCOMPANIED BY EXT.P1 EXHIBIT P5 : RECEIPT REGARDING ACCEPTANCE OF FEE FOR APPLICATION FOR RENEWAL OF THE LICENCE FOR THE FINANCIAL YEAR 2010-11 EXHIBIT P6 : NOTICE DTD 22.02.2010 ISSUED BY THE SECOND RESPONDENT EXHIBIT P7 : NOTICE ISSUED TO THE PETITIONER BY THE MUNICIPALITY DTD 27.02.2010 EXHIBIT P8 : REPLY GIVEN BY the PETITIONER TO EXT.P7 NOTICE EXHIBIT P9 : JUDGMENT OF THIS HON'BLE COURT IN WPC 7436 OF 2010 EXHIBIT P10 : COMMUNICATION DTD 27.03.2010 ISSUED BY the MUNICIPALITY TO THE PETITIONER EXHIBIT P11 : ORDER NO H1-4976/2010 DTD 24.03.2010 ISSUED BY the MANJERI MUNICIPALITY RESPONDENTS' EXHIBITS: NIL C.T.RAVIKUMAR, J. --------------------------------------- W.P(C)Nos.11769, 17861 & 38771 of 2010 ---------------------------------------- Dated 7th January, 2011 JUDGMENT Essentially, these three writ petitions pertain to the same issue. Therefore, they are being disposed of by this common judgment. W.P.(C)No.11769 of 2010 is taken as the leading case and the facts, documents as also status of the parties are being referred to in this judgment in the order they are set out in the said writ petition unless otherwise specifically mentioned. 2. The petitioner submitted Ext.P1 application seeking licence for conducting sale of fresh fish in building No.16/915 of the first respondent Municipality. Ext.P2 would reveal that as early as on 13.1.2010 the requisite fee therefor, was remitted by the petitioner. Ext.P3 is the No Objection Certificate issued by the owner of the aforesaid building. Since no order was passed on Ext.P1 application even within the statutory prescribed period the petitioner commenced his business in terms of the provisions under section 492 (15) of the Kerala Municipality Act (for short `the Act'). Later, he has submitted an application for renewal of the licence for the financial year 2010-2011. Ext.P5 is the receipt showing the remittance of the requisite fee for renewal of the said WP(C).No.11769/2010 & connected cases 2 licence. Thereupon, the petitioner was issued with Exts.P6 and P7 notices. It is stated thereunder that the petitioner could have conducted business only in the sale of frozen fish in cold storage and accordingly, he was directed to stop the sale of fresh fish within 24 hours of the receipt of the notice. On receipt of the same, the petitioner has submitted Ext.P8 reply. Later, apprehending coercive steps, he has approached this Court by filing W.P.(C)No.7436 of 2010. The said writ petition was disposed of as per Ext.P9 judgment directing consideration of the objection raised by the petitioner as per Ext.P8. After such consideration Ext.P11 order has been passed by the first respondent Municipality. This writ petition has been filed challenging Ext.P11 order. 3. W.P.(C)No.38771 of 2010 is filed by the petitioner himself challenging Ext.P15 therein. Ext.P15 is an order passed by the first respondent Municipality cancelling the licence for conducting business in the aforementioned building. W.P.(C)No.17861 of 2010 is filed by the third respondent in this writ petition. Essentially, the prayer therein is for initiating action against the petitioner for having conducted sale of fresh fish in violation of the conditions of the licence. 4. I have heard the learned counsel appearing for the petitioner, learned standing counsel for the first respondent and also the learned standing counsel appearing for the third respondent. WP(C).No.11769/2010 & connected cases 3 5. On 6.4.2010 this Court passed an interim order restraining the respondent Municipality from proceeding against the petitioner in terms of Ext.P11, for selling fresh fish. Later, as per order dated 15.11.2010 the said order was vacated. It was observed therein that the petitioner could be permitted only to sell frozen fish from the cold storage. The learned counsel for the petitioner submitted that subsequent to Ext.P15 order no kind of fish vending is taking place in the premises in question. 6. The learned standing counsel appearing for the first respondent Municipality, on instructions, submitted that no order was actually passed on Ext.P1 application. At the same time, it is admitted that the petitioner has submitted Ext.P1 application seeking licence for conducting sale of fresh fish. When an application is submitted before the competent authority in terms of the provisions under the Kerala Municipality Act, 1994, that authority is bound to pass an order within the statutorily prescribed period. The effect and impact of failure to pass such an order is specifically contemplated under section 492(15) of the Act. There is a deeming provision under section 492(15) of the Act enabling the applicant to proceed with the business for the purpose for which the application was submitted. The contention of the petitioner is that it is only by virtue of the said provision that he has been conducting WP(C).No.11769/2010 & connected cases 4 business in the sale of fresh fish. According to the petitioner, based on his application and the subsequent failure on the part of the first respondent to pass orders thereon would enable him to conduct sale of fresh fish whilst, according to the first respondent, he could have conducted sale of frozen fish only, in the circumstances. Be that as it may, evidently, no order was passed on Ext.P1 application. The learned counsel appearing for the petitioner submitted that the petitioner would confine his prayer to one for a direction to the first respondent to consider Ext.P1 application in accordance with the provisions under the Kerala Municipality Act. The learned standing counsel for the first respondent submitted that the said application would be considered in accordance with law expeditiously. In view of the submission made on behalf of the respondent Municipality that no licence was issued to the petitioner after considering Ext.P1 application I am of the opinion that the prayer sought for in W.P.(C)No.17861 of 2010 for taking action against the petitioner herein for violation of conditions of the licence and such other allied prayers cannot be granted. Accordingly, the said writ petition is dismissed. In view of the submissions made on behalf of the first respondent Municipality as also the petitioner W.P.(C)Nos.11769 & 38771 of 2010 are disposed of with a direction to the first respondent WP(C).No.11769/2010 & connected cases 5 Municipality to consider Ext.P1 application referred to in W.P.(C)No.11769 of 2010 and pass orders thereon expeditiously, at any rate within a period of three weeks from today. Sd/- C.T.RAVIKUMAR Judge TKS // True copy // P.S to Judge