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2016 DIGILAW 894 (KER)

Abdul Rasheed v. Pariyaram Grama Panchayat

2016-10-21

MOHAN M.SHANTANAGOUDAR, SATHISH NINAN

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JUDGMENT : SATHISH NINAN, J. 1. The Writ Appeal is filed challenging the judgment dated 29.08.2016 in W.P.(C) No.25663 of 2015 by the petitioner in the Writ Petition. 2. The challenge in the Writ Petition was against the conduct of a poultry farm by the 3rd respondent in his property which is situated adjacent to the petitioner’s property. According to the petitioner, the poultry farm is being conducted by the 3rdrespondent nearly six meters away from the petitioner’s residential house. Petitioner alleges pollution consequent to the conduct of the poultry farm by the 3rdrespondent. It is alleged that the distance rule has been violated by the 3rdrespondent while setting up the poultry farm. It is further alleged that the 3rdrespondent’s licence issued by the Panchayat expired on 31.03.2016 and the application for renewal of the licence was made by him only on 01.04.2016, i.e., after the expiry of the period of licence. This is in violation of S.236 of the Kerala Panchayat Raj Act (for short “the Act”) and hence the application is not liable to be considered. 3. As noticed by the learned single Judge, and even in this appeal, no provision of law has been pointed out by the petitioner as to the existence of any distance rule applicable in so far as the establishment of the poultry farm is concerned. It is true that functioning of the poultry farm should not cause any pollution affecting the nearby residents. However, the Pollution Control Board has given its consent to the 3rdrespondent and the consent is valid upto 31.01.2019. As has been observed by the learned single Judge, if there is any complaint regarding pollution, it is always open to the petitioner to take up the issue before the Pollution Control Board or the Panchayat in spite of the issuance of licence and consent to the establishment. In the event of there being such a complaint, necessarily the Pollution Control Board or the Panchayat will be duty bound to look into the same and give appropriate directions to the 3rd respondent to take the necessary mitigating measures and steps as may be directed. The authorities will have to see that such measures are properly implemented and the pollution is abated by the licensee. 4. The authorities will have to see that such measures are properly implemented and the pollution is abated by the licensee. 4. The other ground of challenge raised by the petitioner is that S.236 of the Act stipulates that an application for renewal of licence has to be made 30 days prior to the expiry of the licence and not more than 90 days before the expiry of the licence period. In the instant case the licence has expired on 31.03.2016 and application for renewal of licence was made only on 01.04.2016. Application for renewal of licence ought to have been made 30 days prior to the expiry of the period, i.e., at least on 01.03.2016. 5. It would be apposite to refer to the relevant clauses of S.236 of the Act which read thus: “236. General provision regarding licences and permissions.-(1) Save as otherwise expressly provided in, or may be prescribed under this Act, every application for any licence or permission under this Act or any rule or bye-law made thereunder, or for the renewal thereof, shall be made not less than thirty and not more than ninety days before the earliest with effect from which, or the commencement of the period being three years or such lesser period as is mentioned in the application for which the licence or permission is required. (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 of 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. (11) When any licence or permission is suspended or revoked or when the period for which it was granted, or within which application for renewal should be made, has expired, whichever expires later, the grantee shall for all purposes of this Act or revoking the licence or permission is cancelled or, subject to sub-sections (3) and (4), until the licence or permission is renewed, as the case may be.” 6. Sub-section (11) of S.236 of the Act provides that if the period within which the application for renewal is to be submitted has expired and no application was submitted, or the period of licence has expired, then it shall be deemed as without licence; until the licence is renewed. Sub-section (5) of S.236 gives power to the Secretary of the Panchayat to stop the business which is being conducted without licence. Therefore, if within the period stipulated for renewal, the required application is not submitted and if the period of licence has expired, the Secretary of the Panchayat is entitled to have the business stopped. By virtue of the deeming provision under sub-section (3) of S.236 referred to supra, if the application for renewal of a licence has been made by the licensee 30 days prior to its expiry, then, even if the Secretary does not pass orders thereon renewing the licence, it shall be deemed that licence has been granted and consequently the conduct of the business would not become illegal even after the expiry of the original licence period. This provision enables a licensee to conduct business without any interruption, the only condition being that the application for renewal must have been submitted within the period as stipulated under S.236(1) of the Act. This is why the statute mandates that application for licence or renewal applications are to be submitted 30 days prior to the commencement of the period for which the licence is required. When the statute prescribes that an application for renewal of licence is to be submitted within a particular period, it could not be taken that it is not mandatory. The licensee cannot sleep over his rights and seek for renewal of licence at any time of his choice. The statute prescribes the period during which he has to apply for renewal. If any other interpretation is given, the provision stipulating the time period will become otiose. Once the licence has expired consequent to the non-submission of the renewal application within the period as stipulated under the Act, necessarily, an application has to be made for issuance of a fresh licence and the same cannot be treated as one for renewal. The situation would be different if the Act or the Rules made thereunder provide a grace period within which the application for renewal of the licence already expired, could be submitted. The situation would be different if the Act or the Rules made thereunder provide a grace period within which the application for renewal of the licence already expired, could be submitted. No provision of law is pointed out which enables the 3rdrespondent to submit an application for renewal of licence after the expiry of the period provided under S.236 of the Act. 7. Admittedly, the 3rdrespondent has submitted his application on 01.04.2016. Sub-section (3) of S.236 provides that if order on an application for issuance of a licence is not communicated to the applicant within a period of 30 days after receipt of application by the Secretary, it shall be deemed that licence has been granted for the period for which it is ordinarily granted. Therefore, even if orders are not passed on the application for licence/renewal by the Secretary, on the expiry of 30 days or after longer period as may be prescribed in any class of cases from the date of application, it shall be deemed that licence has been granted to the applicant by virtue of the deeming provision under S.236(3) referred to supra. 8. As pointed out earlier, the 3rdrespondent has submitted his application for renewal on 01.04.2016. Considering the fact that the 3rd respondent has the necessary consent from the Pollution Control Board, NOC from Fire and Rescue Department, D&O licence, etc., for conducting the business in question, it is directed that the application submitted by the 3rdrespondent for renewal of licence shall be considered as an application for issuance of fresh licence. The Secretary, while considering the said application shall take notice of the consent issued by the Pollution Control Board, NOC from Fire and Rescue Department, D&O licence, etc., in favour of the 3rd respondent and take a decision after hearing the petitioner also. As has been directed by the learned single Judge, the Panchayat shall refrain from invoking the deeming provision under S.236(11) of the Act till orders are passed on the application submitted by the 3rdrespondent. While making such a direction, we also take note of the fact that the petitioner had filed O.S.No.355 of 2015 before the Munsiff’s Court, Taliparamba wherein also the petitioner was not able to secure any restraining order as against the conduct of the poultry farm by the 3rdrespondent and also the fact that the licence expired during the pendency of the Writ Petition. 9. 9. However, we make it clear that if the petitioner has grievance regarding any pollution being caused consequent to the functioning of the poultry farm by the 3rdrespondent, it shall be open to the petitioner to approach the Pollution Control Board or the Panchayat who shall be duty bound to conduct appropriate enquiries and give necessary directions in the said regard, with due notice to the 3rdrespondent. With the above observations and directions, the Writ Appeal is dismissed.