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2011 DIGILAW 153 (KER)

Mohanan v. Sub Inspector of Police

2011-02-03

K.SURENDRA MOHAN, R.BASANT

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Judgment :- R. Basant, Judge. 1. What is the period for which licence under the Kerala Panchayat (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996 (the Rules hereafter) would have been ordinarily allowed? This is the crucial question arising for consideration in this Writ Petition. To put it better, we feel that the Writ Petition can be disposed of on that question. 2. The petitioner has come to this Court with this petition seeking direction under Art.226 of the Constitution to respondents 1 and 2 to afford police protection to the petitioner to run a M. Sand Processing establishment which is attempted to be obstructed by respondents 3 and 4. 3. According to the petitioner he has all the requisite permits, permission, licences etc. for the running of the M. Sand Processing Unit. His is an industrial establishment. He after getting all the requisite licences/permits had also applied for grant of permit under the Rules. That application filed by him is produced as Ext.P15. To be short on the specific facts we note that this application is dated 23.11.2009. The application is for licence for the period “from 2009”. No specific period is shown. It is a new (fresh) licence to be issued also. 4. Admittedly no orders were passed on Ext.P16 application for a period of 30 days from 23.11.2009. According to the petitioner he is therefore, entitled to deem that licence has been duly issued to him under S.236(3) of the Kerala Panchayat Raj Act. He is hence entitled to run the establishment. In the wake of unjustified obstructions he came to this Court for issue of direction to grant police protection to him to run his establishment. 5. In the meantime the Panchayat had issued Ext.P9 stop memo on 05.03.2010. The petitioner challenged that order by filing a Writ Petition before this Court. The same is pending before a Single Bench of this Court as W.P. (C) 11002/2010. There is an order of stay Ext.P10 granted that Bench. That order of stay remains in force even now it is submitted. 6. Panchayat is not made a party to this proceedings. However, respondents 3 and 4 raise various contentions against the grant of police protection. Interalia they have raised a contention that the deemed licence has also expired now. Renewal of the licence has not been granted. There is no application filed for renewal. 6. Panchayat is not made a party to this proceedings. However, respondents 3 and 4 raise various contentions against the grant of police protection. Interalia they have raised a contention that the deemed licence has also expired now. Renewal of the licence has not been granted. There is no application filed for renewal. Consequently there is no deemed renewal of the licence under S.236(3) of the Kerala Panchayat Raj Act. In these circumstances it is contended that at any rate after 31.12.2010 the petitioner is not entitled to run the unit. Consequently, to such a person who wanted initially to run unit on the strength of a deemed licence and later wanted to continue to run the same on the strength of Ext.P10 interim stay order no order of police protection may be granted when the deemed licence has expired and has not been renewed. This is the crucial contention raised. 7. The learned counsel for the petitioner contends that under S.236 (3) of the Kerala Panchayat Raj Act the deemed licence is to remain valid for the period for which such licence would ordinarily have been issued. We straight away extract the relevant S.236 (3): “236. General provisions regarding licences and permissions.—(1)xxxx (2) xxxx xxxx xxxx (3) Save as aforesaid, if orders on an application for any such licence or permission are not communicated to the applicant within thirty days or such longer period as may be prescribed in any class of cases after the receipt of the application by the Secretary, the application shall be deemed to have been allowed for the period, if any, for which it would have been ordinarily allowed and subject to the law, rules and bye-laws and all conditions ordinarily imposed.” 8. That takes us to the question as to what is the period for which the licence under the Rules is issued. In this context we refer to the provisions of the Rules. R.8 of the Rules is extracted below: “8. Period of licence:-The period of every licence issued under Rule 6, will expire at the end of the year unless, for special reasons, the President considers that it should expire at an earlier date, when it shall expire at such earlier date as may be specified therein: Provided that the period of licence in respect of factory, industrial establishment etc. Period of licence:-The period of every licence issued under Rule 6, will expire at the end of the year unless, for special reasons, the President considers that it should expire at an earlier date, when it shall expire at such earlier date as may be specified therein: Provided that the period of licence in respect of factory, industrial establishment etc. shall be fixed as five years and in such cases five times of the fee for licence per annum fixed by the Panchayat under Schedule III and IV shall be realised in advance.” While the learned counsel for respondents 4 and 5 contends that R.8 stipulates that the period of licence ordinarily must end at the end of the year in question, learned counsel for the petitioner contends that so far as a factory or industrial establishment is concerned the ordinary period is five years and not one year. Lot of arguments are advanced as to whether petitioner’s establishment is a factory or industrial establishment. We need not enter into that controversy. We take it that petitioner’s establishment is at any rate an industrial establishment. 9. Rules 8 extracted above reveals that the application will expire at the end of the year. If the year is reckoned as calendar year the deemed licence must expire on 31.12.2009. If the same is reckoned as financial year as it ought to be under S.2 (xlviii) of the Kerala Panchayat Raj Act. The period has to expire on 31.3.2010. If the date of the application is reckoned as the relevant date it must expire at any rate on 23.12.2010. Thus in any view of the matter the deemed licence cannot have validity beyond 31.12.2010. That aspect of the matter is not seriously disputed. The period of the deemed licence has thus expired undoubtedly. 10. Learned Counsel for the petitioner contends that so far as factories and industrial establishments are concerned the period must be reckoned as five years in the light of the language of R.8 of the Rules extracted above. The proviso makes it clear that five years “shall be fixed in the case of a factory or industrial establishment” and therefore, the ordinary period of the licence must be held to be five years contends the learned counsel for the petitioner. 11. The proviso makes it clear that five years “shall be fixed in the case of a factory or industrial establishment” and therefore, the ordinary period of the licence must be held to be five years contends the learned counsel for the petitioner. 11. Learned counsel for the contesting respondents and the learned Government Pleader contend that by any stretch of imagination the proviso cannot be held to prescribe the ordinary period of validity of the licence. The proviso can be reckoned only as an enabling provision which enables the Panchayat in a given case to grant the licence for a factory or industrial establishment for a period up to five years subject to conditions. Condition of prior payment of enhanced licence fee under the proviso is a condition precedent and that also reveals that the Panchayat has the option to give licence for a longer period of time. In any view of the matter five years specified in the proviso cannot be reckoned as the ordinary period of validity of a licence issued for a factory or industrial establishment contends counsel. 12. Learned Counsel for the contesting respondents Ms. Daisy Thampi contends that provision of S.236(3) must receive a purposive and realistic interpretation. Counsel takes pains to point out to us that under S.232 of the Kerala Panchayat Raj Act licences are insisted for the running of dangerous and offensive trades. This is not a stipulation simply clothing the Panchayat with powers. It is a stipulation which is calculated to protect the right to life of the citizen guaranteed to him under the Constitution. Counsel relies on S.166 of the Kerala Panchayat Raj Act and Schedule 3 as also mandatory function No.19 to contend that the Panchayat is expected to discharge that mandatory function in the interests of the citizens at large. Licence are insisted so that the Panchayat as the authority wielding the powers can insist on running dangerous and offensive trades within its jurisdiction safeguarding the interests of the public. The provision for the deemed licence under S.236 (3) is by way of a penalty or default stipulation to keep the Panchayat authorities on the right track. They are not intended to confer on the licencee unfettered rights to carry on the activity for any length of time without such safeguards in the interest of the public. The provision for the deemed licence under S.236 (3) is by way of a penalty or default stipulation to keep the Panchayat authorities on the right track. They are not intended to confer on the licencee unfettered rights to carry on the activity for any length of time without such safeguards in the interest of the public. Learned Counsel contends that such understanding of the purpose of S.236 (3) is inevitable to give true effect to the legislative mandate under S.236(3). The period prescribed under S.236(3) for a deemed licence must hence be understood in a restrictive manner so that on account of default of Panchayat, people of the locality will not be compelled to suffer an unlicenced factory/establishment to run without proper safeguards issued as demanded under S.232 of the Kerala Panchayat Raj Act and the Rules. 13. We are in agreement with the learned counsel. We take note of the purpose of S.236 (3). The purpose is certainly not to give a convenient excuse for the applicant for a licence to carry on a dangerous or offensive trade without securing any licence from the Panchayat. The expression ’ordinary period’ will certainly have to be understood, conscious of the legislative purpose and the rights of ordinary people which may be trammeled by the unjustified securing of a deemed licence under S.236(3). To not perceive the real mandate of S.236 (3) will certainly be serious dereliction of duty on the part of the interpreter also. 14. Conscious of the purpose which S.236 (3) has to serve and conscious of the mandate of R.8 prescribing the period for licence, we deem it absolutely safe to conclude that not five years as prescribed under the enabling proviso but one year as stipulated in the body of R.8 must be reckoned as the ordinary period for which the deemed licence will be valid. So reckoned the petitioner does not have a valid licence for the working of his establishment after expiry of the period of one year-at any rate after 31.12.2010. 15. The next question is whether an order of police protection deserves to be granted. We must note that a stop memo has been issued by the Panchayat and the petitioner is asserting his rights to run the establishment on the strength of an order of stay obtained from this Court. 15. The next question is whether an order of police protection deserves to be granted. We must note that a stop memo has been issued by the Panchayat and the petitioner is asserting his rights to run the establishment on the strength of an order of stay obtained from this Court. What is more crucial is that the petitioner has not admittedly applied for renewal of licence. He is hence unable to invoke S.236 (3) to infer deemed renewal. Learned counsel for the petitioner contends that it is not that the petitioner did want to apply for renewal but the renewal application was not received by the Panchayat. This remains in the realm of an empty and unsubstantiated assertion. At any rate no application for renewal was sent by registered post. No such application has been received also. 16. We note that the learned counsel for respondents 3 and 4 has raised various arguments also in support of her contention that the petitioner is not entitled to run the establishment. In the view which we have taken on the contention referred above, we are not proceeding to consider all such contentions. Parties shall be at liberty to raise all those contentions later before any appropriate authority. 17. We are in these circumstances satisfied that an order of police protection cannot and need not be granted to the petitioner to enable him to run his industrial establishment without an actual licence and on the strength of the deemed licence under S.236(3). The period of validity of the deemed licence having expired, we are satisfied that the extraordinary constitutional relief under Article 226 cannot and need not be granted to the petitioner. This petition is in these circumstances dismissed.