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2016 DIGILAW 991 (KER)

Abdul Rasheed v. Pariyaram Grama Panchayat

2016-11-16

MOHAN M.SHANTANAGOUDAR, SATHISH NINAN

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JUDGMENT : Sathish Ninan, J. 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 3rd respondent nearly six meters away from the petitioner's residential house. Petitioner alleges pollution consequent to the conduct of the poultry farm by the 3rd respondent. It is alleged that the distance rule has been violated by the 3rd respondent while setting up the poultry farm. It is further alleged that the 3rd respondent'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 Section 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 3rd respondent 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 Section 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 Section 236 of the Act which read thus; "236. General provisions 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 date 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 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. (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 Section 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 Section 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 Section 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 Section 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. 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. 7. At this juncture, it would be relevant to refer to the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996 (for short, "the 1996 Rules"). Schedule I to the 1996 Rules enumerates the business activities that fall within the purview of the said Rules. Entry No. 130 in the said Schedule I is, "Poultry, pig, goat - storing, sale". Therefore, the said rules are attracted in the case of a poultry farm. Rule 5 of the 1996 Rules relates to submission of an application for licence. As per Rule 6, the fee for such licence is to be at the rate mentioned in Schedule II thereto. Rule 10 of the 1996 Rules provides that an application for renewal of licence shall be submitted within 30 days before the end of a year and application for licence for fresh openings shall be submitted 30 days before the opening. 8. In cases of business wherein there is use of machinery or manufacturing plant which is being operated by electricity, Rules 17 to 19 would apply. As per Rule 18, the fee chargeable for grant of licence is as specified in Schedule III to the said Rules. Rule 19 provides that in case of belated applications, an additional fee of 25% of the fee specified in Schedule III shall be chargeable. As pointed out earlier, Rules 17 to 19 relate to business wherein there is machinery or manufacturing plant wherein electricity is used. 9. There is yet another category referred to under the 1996 Rules, i.e., business being conducted by using machinery but without electricity. Rules 20 to 22 of the 1996 Rules relate to the said category. As pointed out earlier, Rules 17 to 19 relate to business wherein there is machinery or manufacturing plant wherein electricity is used. 9. There is yet another category referred to under the 1996 Rules, i.e., business being conducted by using machinery but without electricity. Rules 20 to 22 of the 1996 Rules relate to the said category. Rule 21 of the 1996 Rules provides that in such cases, for grant or renewal of licence, the fee payable shall be as specified in Schedule IV to the said Rules. Rule 22 provides that in case of belated applications, an additional fee of 25% of the fee specified in Schedule IV could be charged. Therefore, it is obvious that three categories of business are comprehended under the Rules; one is where no machinery is used i.e., common trade, in respect of which the fee payable is at the rates mentioned in Schedule II; the second category is business where machinery operated by electricity is used, regarding which the fee payable is as specified in Schedule III to the Rules; and the third category being business conducted with machinery but without using electricity, for which the fee payable is as specified in Schedule IV to the Rules. 10. As could be noticed from the above, as regards business where machinery operated by electricity is used, Rule 19 provides for making belated applications for grant or renewal of licence on payment of an additional fee of 25%. Similarly, in the case of business where machinery operated without electricity is being used, Rule 22 provides for payment of additional fee of 25% in case of belated applications for grant or renewal of licence. Therefore, in the latter two categories there is an enabling provision which permits submission of belated applications on payment of additional fee of 25%. Such a provision is conspicuously absent in the first category. 11. A poultry farm, conducted without use of any machinery falls within category No. 1. In respect of the said category, there is no provision for submitting belated applications by payment of any additional fee. No provision of law is pointed out which enables the 3rd respondent to submit an application for renewal of licence after the expiry of the period provided under Section 236 of the Act. 12. Admittedly, the 3rd respondent has submitted his application on 01.04.2016. No provision of law is pointed out which enables the 3rd respondent to submit an application for renewal of licence after the expiry of the period provided under Section 236 of the Act. 12. Admittedly, the 3rd respondent has submitted his application on 01.04.2016. Sub-section (3) of Section 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 Section 236(3) referred to supra. 13. As pointed out earlier, the 3rd respondent 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 3rd respondent 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 Section 236(11) of the Act till orders are passed on the application submitted by the 3rd respondent. 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 Munsiffs Court, Taliparamba wherein also the petitioner was not able to secure any restraining order as against the conduct of the poultry farm by the 3rd respondent and also the fact that the licence expired during the pendency of the Writ Petition. 14. 14. 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 3rd respondent, 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 3rd respondent. With the above observations and directions, the Writ Appeal is dismissed.