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2001 DIGILAW 721 (KER)

K. P. Azzez v. Pulpally Grama Panchayat

2001-12-05

K.A.MOHAMMED SHAFI

body2001
Judgment :- K.A. Mohamed Shafi, J. This O.P. is filed by the petitioners seeking a writ of mandamus to renew the licence to the petitioners to conduct meat and fish business at Pulapelly town pursuance of Exts.P4 to P10 applications, to issue a writ of certiorari quashing Ext.P14 notice as it violates Rule 25 of the Kerala Panchayat Raj (grant of licence to Public and Private Markets) Rules, to declare that the licenses are deemed to have issue to the petitioners since the statutory period for disposing of the applications for issue of licence is over and to issue a direction to the 1st respondent to consider and dispose of Exts. P4 to P10 applications for renewal of licenses expeditiously. 2. The petitioners are fish and meat vendors in Pulpally Panchayat and they have been conducting the business after obtaining licence from the Panchayat. The 1st respondent Panchayat permitted the 2nd respondent to construct a private market and the 1st respondent- Panchayat directed the petitioners to get meat stalls and fish stalls allotted in the new market. According to them. The 2nd respondent is claiming very exorbitant amount towards deposit and rent for the stalls to be allotted to them. They have also contended that the 1st respondent has issued Ext. P14 notice intimating that the private market will be opened from 16.09.2001 and prohibiting the conduct of meat and fish business within three kilometers from the proposed market. They have also contended that they are conducting business in the Pulpally town about 1 1/2 Kms. Away from the proposed private market at Thazhe Angadi in Pulpally and the above notice issued by the 1st respondent is in contravention of Rule 25 of the Kerala Panchayat Raj (Grant of licence to public and private markets) Rules, 1996. They have further contended that they have been conducting business with valid licence issued by the 1st respondent-Panchayath for the last more than 15 years and their application for renewal of licence evidenced by Exts P4 to P10 are pending consideration before the Ist respondent. Therefore, they seek direction to the 1st respondent to renew the licence given to the petitioners to conduct meat and fish business at Pulpally town and to quash Exts.P14 notice issued by the Panchayat, being violative Rule 25 of the Kerala Panchayat Raj (Grant of licence to public and private markets) Rules 1996. 3. Therefore, they seek direction to the 1st respondent to renew the licence given to the petitioners to conduct meat and fish business at Pulpally town and to quash Exts.P14 notice issued by the Panchayat, being violative Rule 25 of the Kerala Panchayat Raj (Grant of licence to public and private markets) Rules 1996. 3. In the counter affidavit filed by the 2nd respondent it is stated that the petitioners have agreed to occupy the stalls and accordingly occupied the respective stalle allotted to them after arriving at a settlement with the 2nd respondent regarding the rent to be and accordingly occupied the repective stalls allotted to them after arriving at a settlemnt with the 2nd respondent regarding the rent to be paid and the deposit to be made. 4. The counsel for the petitioners also submitted that the petitioners have occupied the stalls allotted to them subsequent to the filling of the O.P. But that fact will not in any way affect the contentions raised by the petitioners and the prayers sought for by them in this O.P. 5. The fact that the petitions 1 to 7 were fish and meat vendors in Pulapally town for the last 15 years by obtaing licence from the 1st respondet-Panchyat is not in dispute. But the 1st respondent has contendent that the 8th respondent is not a trader in meat or fish in the Panchayat. It is also not disputed that the petitioners have filed Exts.P4 to P10 applications for renewal of license. But according to the first respondent, those applications were filed by the petitioners before the Panchayat only in between 11.9.2001 and 13.9.2001, long after the expiry of the license issued to the petitioners. On 31.3.2001 and therefore, those applications are liable to be rejected. 6. But the counsel for the petitioners submitted that their applications are legal and valid and even if there is any delay in filling the applications the same can be condoned by the 1st respondent and license can be issued to the petitioners since they have been conducting the business by obtaing valid license for the last more than 15 years and if the license is not renewed they will be deprived of their avocation. 7. 7. The question whether the petitioners are entitled for renewal of license as per Exts.P4 to P10 applications filed by them before the 1st respondent, is a matter to be decide by the Ist respondent after considering the applications on merits. Therefore , the 1st respondent has to consider those applications and to passé appropriate orders in accordance with law after giving opportunity to the petitioners to be heard. 8. The petitioners have contended that Ext.P14 notice issued by the 1st respondent- Panchayat is illegal and ultra vires of Rule 25 of the Kerala Panchayat Raj (Grant of license to public and private markets.) Rules 1996, which provides that no public or private market can be started within a distance of 3 Kms. from the existing private or public market. 9. Rule 25 of the Kerala Panchayat Raj (Grant of license to public and private markets) Rules 1996 stipulates that no public market should be established not licence can be issued to establish any private market within three kms. of the existing private or public market. 10. The petitioners have contended that the above rule prohibits only establishing new public market or granting licence to establish private market within a distance of three kms.from the existing private or public market. In these case it is not disputed that the 1st respondent - Panchayat has established a private market though the 2nd respondent in Pulpally and as per Ext. P14 notice the 1st respondent has prohibited sale of fish and meat within a radius of three kms. of the newly established private market. The petitioners have vehemently contended that such a prohibition against the vending of fish and meat within a radius of 3 kms from the newly established private market is not at all contemplated in or has the sanction under the provisions of the Panchayat Raj Act or any of the rules framed thereunder and Rule 25 prohibits only establishment of new markets -public or private within three kms. from the existing market. 11. The 1st respondent has contended that Sections 232 to 234 of the Kerala Panchayat Raj Act and the Kerala Panchayat Raj (Grant of licence to dangerous and offensive trades and factories) Rules empower the Panchayat to issue such notification regulating the dangerous and offensive trades in the interest of general public. from the existing market. 11. The 1st respondent has contended that Sections 232 to 234 of the Kerala Panchayat Raj Act and the Kerala Panchayat Raj (Grant of licence to dangerous and offensive trades and factories) Rules empower the Panchayat to issue such notification regulating the dangerous and offensive trades in the interest of general public. They have also contended that Section 166 of the Kerala Panchayat Raj Act specifies the duties and responsibilities of the Grama Panchayat and Schedule III of the Act enumerates the primary duties of the Panchayat. Item 11of Schedule III is regulation of slaughter of animals and sale of meat, fish and other easily perishable food articles. Therefore, according to the counsel for the 1st respondent, Ext.P14 notice issued by the 1st respondent is perfectly in consonance with the right and authority as well as the duty of the Panchayat envisaged under law. The fact that the Grama Panchayat has the duty to regulate the slaughter of animals and sale of fish and meet and other easily perishable food items in the interest of general public cannot be disputed. But the question to be considered is whether Ext.P14 notice issued by the 1st respondent comes within the powers conferred upon the Panchayat under Section 166 and item 11 of Schedule III of the Panchayat Raj act or the provisions of the Kerala Panchayat Raj (Grant of licence to dangerous and offensive traders and factories) Rules. 12. Though the provision of the Panchayat Raj Act and the Rules framed thereunder enable persons for the opening of private marrkets by obtaining licence from the Panchayat, the Kerala Panchayat Raj(Grant of licence to dangerous and offensive trades and factories) Rules deal with the conditions for starting dangerous and offensive trades. A person who satisfies the conditions stipulated in the Kerala Panchayat Raj (Grant of licence to dangerous and offensive trades and factories) Rules is entitled to get licence for vending fish and meat. 13. A Division Bench of this Court in Municipal Council, Thodupuzha v. Nanar Kani (1999 (1) KLT CaseNo.36 at SN page No.34) considered the bye-laws adopted by the Municipality providing that no vegetable business should be carried within a distance of 200 meters from a public or private market and held that it is an unreasonable restriction offending Article 19 (1) (g) of the Constitution. In that judgment the Division Bench has held that: "There is no fundamental right to carry on any trade in any particular locality. It is perfectly open to the State to prohibit business being done in a particular place or locality. It is equally legitimate to permit a business being done in a particular locality if public interest demands. Public interest surely demand that vegetables should be sold in a meat and hygienic place. But it is highly illogical to say that neat and hygienic conditions cannot be assumed within the distance of 200 metres radius from the public market and beyond that it would be hygienic to carry on the vegetable business. The restriction of distance imposed under bye -law No.1 has no co-relationship with the object and purpose sought to be achieved by the Municipality. Wherever threre isssis prima facie infraction of a fundamental right, it is to be assumed that the restriction imposed is not reasonable and in case of a total prohibition, the assumption as to the unreasonableness is higher." 14. It is contended by the petitioners that the restriction imposed by the Panchayat in this case against the petitioners who are vendors of fish and meat since the last many years with valid licence issued by the Panchayat is only intended to help the licensee who has set up the private market and such a restriction cannot be sustained. 15. In the decision in Gopalan v. Chamiyar (1987 (1) KLT 454) this Court while considering Rule 26 of the Kerala Panchate (Public and Private) Market Rules, 1964 and held that there is no absolute bar under that Rule against the issue of licence for a private market within the distance of 3 kms, mentioned in that Rule. This Court has also held that all the provisions of the Panchayat Raj Act and the Rules are to safeguard the public interest and not for the purpose of protecting the commercial interest of the holder of a private market. 16. In Ext. P14 notice it is only stated that with effect from 16.09.2001, the date of reopening of the private market at Thzhe Angadi, vending of fish and meat within a radius of 3 kms, from the private market is banned. Therefore, he ban imposed as per Ext, P14 against selling meat and fish within a rdius of 3kms. 16. In Ext. P14 notice it is only stated that with effect from 16.09.2001, the date of reopening of the private market at Thzhe Angadi, vending of fish and meat within a radius of 3 kms, from the private market is banned. Therefore, he ban imposed as per Ext, P14 against selling meat and fish within a rdius of 3kms. is offending the right to trade as envisaged under Art. 19 (1) (g) of the Constitution. Even though the Panchayat has right to impose conditions regarding the sale of meat an fish in public interest, such a restriction as imposed in Ext.P14 does not subserve any public interest. Even from the notice issued by the Panchayat it is clear that vending of fish and meat is permitted beyond the radius of 3 kms. of the newly established private market. It cannot be contended that such a condition is imposed in public interest for the purpose of public health and hygiene since the sale of fish and meat beyond the radius of 3 kms. of the newly established private market is not prohibited.' 17. Under the circumstances Ext.P14 notice issued banning sale of fish and meat within a radius of 3 kms. of the newly established private market by licenced vendors, is not sustainable and has to be quashed. 18. Therefore, this O.P. is allowed in part and Ext. P14 notice issued bythe 1st respondent -Panchayat is quashed. The 1st respondent is directed to consider Exts. P4 to P11 applications for issuance of licence filed by the petitioner on merits and to pass appropriate orders in accordance with law after giving opportunity to be heard to the petitioners. Quashing of Ext. P14 notice will not in any was affect the right of the 1st respondent- Panchayat to impose reasonable restrictions regarding the sale of meat and fish in public interest.