No person shall open a new private market or continue to keep open a private market unless he has obtained a license from the Village Panchayat : High Court of Kerala

W.P.(C) No. 23404 2015 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE SHAJI P.CHALY FRIDAY THE 18TH DAY OF MARCH 2022 27TH PHALGUNA 1943 WP(C) NO. 23404 OF 2015 NADANKUZHY HOUSE PULLUVAZHI P.O. VIA PERUMBAVOOR PIN 683 541 SRI.PRATAP ABRAHAM VARGHESE NANGELIMALIL PULLUVAZHI VIA PERUMBAVOOR PIN 683 541 RAYAMANGALAM GRAMA PANCHAYATH RAYAMANGALAM P.O. KURUPPAMPADY PIN 683 545 REPRESENTED BY ITS SECRETARY THE ENVIRONMENTAL ENGINEER KERALA STATE POLLUTION CONTROL BOARD DISTRICT OFFICE ERNAKULAM II) 1ST FLOOR MANNA RESIDENCY M.C.ROAD PERUMBAVOOR PIN 683 542 THE MEDICAL OFFICER IN CHARGE PRIMARY HEALTH CENTRE RAYAMANGALAM PIN 683 545 R1 BY SRI.M.P.ASHOK KUMAR W.P.(C) No. 23404 2015 2 R4 SRI.JOBY JOSEPH SENIOR GOVERNMENT PLEADER R3 SRI.NAVEEN.T SC THIS WRIT PETITIONHAVING BEEN FINALLY HEARD ON 18.03.2022 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 23404 2015 3 Dated this the 4th day of March 2022 JUDGMENT This writ petition is filed by the petitioner seeking the following 1. Issue a writ of certiorari or any other appropriate writ or order quashing and setting aside Ext.P6 2. Issue a writ of mandamus or any other appropriate writ or order directing the 2nd respondent to consider and pass orders on Ext.P4 afresh 3. Hold that the first respondent cannot run the cattle market in his property without licence contemplated in Section 222 of the Kerala Panchayat Raj Act 1974. 2. According to the petitioner a private cattle market is conducted close to the property belonging to herself and her sisters without securing a licence in contemplation of Section 222 of the Kerala Panchayat Raj Act 1994and that even Ext. P5 notice dated 24.07.2015 was issued by the Pollution Control Board to the first respondent asking him to show cause as to why action shall not be taken for violation of the conditions prescribed under the consent to operate issued by the Environmental Engineer. 3. It is also pointed out therein that neither a properly roofed or sealed cow dung pit nor a septic tank and soak pit arrangement for the collection of urine wash water are provided. According to her even though Ext. P4 complaint was filed before the Secretary of the W.P.(C) No. 23404 2015 4 Rayamangalam Grama Panchayat Perumbavoor Ernakulam District the 2nd respondent no action was initiated. 4. On the other hand the 2nd respondent has issued Ext. P6 communication dated 20.07.2015 stating that the first respondent is conducting a cattle market for the past 30 years by renewing the licence successively. It is also the contention of the petitioner that a health and sanitary certificate was issued by the Health Inspector and the Medical Officer in charge of the Primary Health Centre Rayamangalam without adequate precautions and without taking note of the action taken by the Pollution Control Board. 5. According to the petitioner the licence that is renewed time and again by the first respondent is only a D & O licence and there is no licence secured by the first respondent as provided under Section 222 of the Act 1994. The writ petition was pending before this Court for the past nearly 7 years without securing any interim orders. 6. I have heard the learned counsel for the petitioner Sri. Pratap Abraham Varghese Smt. Bindu Sreekumar representing the learned counsel for the first respondent Sri. M. P. Ashok Kumar Smt. Chitra representing the learned Standing Counsel for the Pollution Control Board Sri. T. Naveen and Sri. Joby Joseph the learned Senior Government Pleader and perused the pleadings and materials on W.P.(C) No. 23404 2015 5 1994 which reads thus 7. The subject issue revolves around Section 222 of the Act “222. Licensing of private markets: 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 shall be got renewed by the licensee every year 2) The village panchayat may a) grant the licence applied for subject to such conditions as it may think fit as to supervision and inspection sanitation and water supply weights and measures to be used rents and fees to be charged and such other matters as may be prescribed b) refuse renewal of a licence if it is satisfied that such refusal is justified in public interest c) at any time suspend or cancel any licence granted under clause a) for breach of any of the conditions thereof d) modify the conditions of the licence to take effect from a specified date and e) In a case where renewal of licence is refused under clauseNo market fee shall be charged in evening markets Anthichanthas) and the licence for the same shall be granted free of charge but shall be subject to such conditions as to supervision and inspection sanitation and weights and measures to be used as may be prescribed 4) when a licence granted under sub section permits the licensee to levy any fee from the private market a licence fee not exceeding one third of the gross income of the owner from the market in the preceding year shall be charged by the village Provided that in the case of a new market the licence fees shall be W.P.(C) No. 23404 2015 6 fixed by the Panchayat at rates which shall not be less than the amounts given hereunder namely: i) if the area of the market is not more than 0.1 hectare rupees two ii) if the area is more than 0.1 hectare but less than 0.2 hectare rupees four hundred iii) and if the area is more than 0.2 hectare rupees five hundred 5) The Village Panchayat or any officer duly authorised by it may close a private market which is unlicensed or the licence for which has been suspended or cancelled or which is held or kept open contrary to the provisions of this Act after prior intimation 8. On a perusal of the provision it is categoric and clear that in order to conduct a private cattle market a licence is required from the Village Panchayat itself. The case projected by the petitioner is that even though the first respondent has successfully secured renewal of the D & O licence no licence in contemplation of Section 222 of the Act 1994 is secured. 9. In my considered opinion in the absence of any counter affidavit filed by the first respondent or the Grama Panchayat I am unable to sort out the issue. That apart a licence under Section 222 of the Act 1994 is to be secured from the Village Panchayat. The complaint filed by the petitioner was before the Secretary of the Grama Panchayat. Therefore the Panchayat alone is vested with powers to take any action for not securing a licence as per Section 222 of the Act 1994 W.P.(C) No. 23404 2015 7 10. In that view of the matter I am of the considered view that the petitioner can be relegated to the Village Panchayat seeking appropriate action if no license is secured by the 1st respondent in accordance with Section 222 of Act 1994. Therefore the writ petition is disposed of leaving open the liberty of the petitioner to file a suitable complaint before the Village Panchayat in contemplation of Section 222 of the Act 1994 and if any such complaint is filed within three weeks from the date of receipt of a copy of this judgment it shall be finalised at the earliest and at any rate within a month thereafter after providing a notice of hearing to the petitioner as well as the first respondent. I make it clear that if any adverse consequences are still remaining for non compliance of the conditions contained in the consent to operate issued by the Pollution Control Board to the 2 nd respondent the Pollution Control Board is at liberty to take appropriate action in accordance with law. sd SHAJI P. CHALY JUDGE W.P.(C) No. 23404 2015 8 APPENDIX OF WP(C) 23404 2015 PETITIONER S EXHIBITS P1 : COPY OF SETTLEMENT DEED NO.588 2008 OF KURUPPAMPADY SUB REGISTRY DTD.12.2.2008 P2 : COPY OF APPLICATION DTD.8.6.2015 MADE UNDER THE RIGHT TO INFORMATION ACT BEFORE THE 1ST P3 : COPY OF REPLY DTD.10.6.2015 RECEIVED FROM THE PUBLIC INFORMATION OFFICER OF THE 1ST P4 : COPY OF COMPLAINT DTD.10.7.2015 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT P5 : COPY OF THE LETTER DTD.24.7.2015 ISSUED BY THE 3RD RESPONDENT P6 : COPY OF LETTER DTD.20.7.2015 FROM THE 2ND RESPONDENT TO THE PETITIONER P7 : COPY OF CERTIFICATE DTD.1.7.2015 ISSUED BY THE 3RD RESPONDENT RESPONDENTS EXHIBITS :NIL PS to Judge

Summary: No person shall open a new private market or continue to keep open a private market unless he has obtained a license from the Village Panchayat to do so. Such, license shall be got renewed by the licensee every year. The village panchayat may grant the license applied for subject to certain conditions or refuse renewal of a license if it is satisfied that such refusal is justified in public interest and same was upheld by High Court of Kerala through the learned bench led by HONOURABLE MR. JUSTICE SHAJI P.CHALY in the case of GIGI ROY vs. N.T. GEORGE on 18th March, 2022. Brief facts of the case are that a private cattle market is conducted close to the property belonging to petitioner and her sisters, without securing a license in contemplation of Section 222 of the Kerala Panchayat Raj Act, 1994 and that even Ext. P5 notice dated 24.07.2015 was issued by the Pollution Control Board to the first respondent asking him to show cause as to why action shall not be taken for violation of the conditions prescribed under the consent to operate issued by the Environmental Engineer. Learned counsel for petitioner states that neither a properly roofed or sealed cow dung pit nor a septic tank and soak pit arrangement for the collection of urine/wash water are provided. According to her, even though Ext. P4 complaint was filed before the Secretary of the Rayamangalam Grama Panchayat, Perumbavoor, Ernakulam District, the 2nd respondent, no action was initiated. Respondent has issued Ext. P6 communication dated 20.07.2015 stating that the first respondent is conducting a cattle market for the past 30 years by renewing the license successively. It is also the contention of the petitioner that a health and sanitary certificate was issued by the Health Inspector and the Medical Officer in charge of the Primary Health Centre without adequate precautions and without taking note of the action taken by the Pollution Control Board. According to the petitioner, the license that is renewed time and again by the first respondent is only a D &amp; O license and there is no license secured by the first respondent as provided under Section 222 of the Act, 1994. The writ petition was pending before this Court for the past nearly 7 years without securing any interim orders. Court opined that a license under Section 222 of the Act, 1994 is to be secured from the Village Panchayat. The complaint filed by the petitioner was before the Secretary of the Grama Panchayat. Therefore the Panchayat alone is vested with powers to take any action, for not securing a license as per Section 222 of the Act, 1994 . The petitioner can be relegated to the Village Panchayat seeking appropriate action, if no license is secured by the 1st respondent in accordance with Section 222 of Act 1994. Therefore, the writ petition is disposed of, leaving open the liberty of the petitioner to file a suitable complaint before the Village Panchayat in contemplation of Section 222 of the Act, 1994.