Beerankutty vs Sulthan Bathery Grama Panchayat on 25 July, 2003

Kerala High Court
Beerankutty vs Sulthan Bathery Grama Panchayat on 25 July, 2003
Equivalent citations: 2003 (3) KLT 256
Author: M Ramachandran
Bench: M Ramachandran


JUDGMENT

M. Ramachandran, J.

1. Petitioner, according to him, had been engaged in sale of meat in two rooms in the Sulthan Bathery Grama Panchayath for about ten years. When he had made an application for renewal of licence after remitting the fee for the year 2003-2004, the Panchayath has not taken notice of it nor has granted licence for the year. He had thereupon filed Ext.P2 representation requesting the Panchayath to consider the application. As no orders were forthcoming, he has filed this Original Petition.

2. In view of the interim orders that had been passed, it had been directed that petitioner was not to be dispossessed from the premises, which he has been occupying. It is submitted by the petitioner that he is carrying on the business on the strength of the interim orders.

3. Sri. Sathyanatha Menon, learned counsel for the Panchayath submits that the petitioner has not presented the full facts. In view of certain public interest litigations and consequent directions of this Court, the Panchayath was obliged to construct a market complex where sale of fish and meat could be conducted in neat and hygienic manner. Other infrastructure also had been made available to the vendors. Petitioner had also been offered space there and he is in occupation of two rooms. It was in this circumstance that his application for renewal of licence in the erstwhile shops was not considered by the Panchayath. According to them, his application for licence has been sanctioned, and he is running the shop in the market complex. He cannot have additional shops. The submission of Sri. Menon therefore appears to be that when the Panchayath has constructed a market complex, and he having occupied it, it may not be permissible for the petitioner to continue to occupy the old premises and simultaneously carry out the business there also.

4. However, it has not been possible for him to meet the argument raised by learned counsel for the petitioner that he has a right to carry on business in places of his choice. That he has occupied rooms at market complex is irrelevant. He also refutes the allegation of the Panchayath that the meat stall conducted is unhygienic. This is only raised so as to see that for some reason or other, the application for licence is not entertained. He had experience for a decade, and till this time there were no lapses on his part.

5. The Panchayath has a shopping complex, but that is no reason for them to insist that the petitioner is not entitled to carry on the business in his own premises. He has a fundamental right to carry on a business of his choice. He knows the ins and outs of the trade, and nothing else and he cannot be compelled to keep the premises in his possession idle and unproductive. Such a restriction will be illegal. His application therefore deserves consideration on its merits.

6. In the matter of controlling public and private markets, the governing rule is brought about by S.R.O. No. 570/96, the Kerala Panchayath Raj (Issuance of Licence and Control of Public and Private Markets) Rules, 1996. Under Rule 4, separate stalls could be segregated for sale of different items. The stalls could be auctioned out, by public bid. This is to be restricted to one year. Persons occupying such rooms are to abide by the strict conditions generally laid down. Thus, the activities of a stall owner is subjected to severe restriction.

7. That may not be a case in respect of a private stall owner. S.R.O. No. 289/96 governs them, the provision being the Kerala Panchayath Raj (Slaughter House and Meat Stalls) Rules, 1996. Rule 38 stipulates that the shop should be in a premises which is authorised by the Panchayath. But this does not give the Panchayath power to prohibit sale in private premises altogether. The fact that the petitioner was engaged in such sale for over ten years also cannot be ignored. What has to be ensured is neatness, and ethics.

8. Panchayat had not obtained any undertaking from the petitioner, to the effect that he will not carry on the business in the erstwhile premises from the moment he is allotted a new premise. It is also relevant that he had won the shops from the Panchayat after a stiff competition and bidding. The licence is for one year period and if he loses it next year, petitioner will have nothing to fall back upon. As a prudent businessman, perhaps he wants to expand his activities and the ipsi dixit of the Panchayat that he should close down his business for all times appears to be an unnecessary restriction.

9. In the aforesaid circumstances, the matter has to be appropriately reviewed. Sri. Menon submits that the application submitted by the petitioner will be appropriately examined after hearing him and taking into account all the relevant aspects. This submission is recorded. Panchayat is to consider Ext.P2 representation and take a final decision after hearing the petitioner. The real question the Panchayat should ask themselves is whether as a local authority it can prohibit sale of meat by a resident of the locality in a place owned by him. They should not decide the issue on extraneous parameters. The counsel submits that if such permission is granted, it may lead to an exodus, or others may follow suit. But, this cannot influence the Court, while examining the fundamental rights of a citizen. They have to find out means and ways for attracting talents to their new market whereby the sale at any other places will be unattractive.

10. Till such time orders are passed, the present arrangement carried out by the petitioner for selling of meat in his own shop should not be interfered with. He will be liable to pay additional licence fee for the purpose. His continuation will depend upon the out come of the orders to be passed by the Panchayat.

The Original Petition is disposed of with the above direction.

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