IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 24669 of 2010(G)
1. P.P.MUHAMMADALI, S/O.MUHAMMED,
... Petitioner
2. P.MAJEED, S/O.MUHAMMED, PONNAMPARAMBATH
3. C.HASSSAN, S/O.IMBICHALI,
4. K.P.ALIKUTTY, S/O.UNNEENKUTTY,
Vs
1. FEROKE GRAMA PANCHAYATH,
... Respondent
2. STATE OF KERALA, REPRESETNED BY
3. V.ABDUL KAREEM, S/O.IMBICHI BAVA,
4. N.ALI MOHAMMED, S/O.MOIDEEN HAJI,
For Petitioner :SRI.P.V.KUNHIKRISHNAN
For Respondent :SRI.V.G.ARUN
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :07/12/2010
O R D E R
P.N.RAVINDRAN, J.
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W.P.(C) No. 24669 OF 2010
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Dated this the 7thday of December, 2010
J U D G M E N T
The first petitioner is the owner of a parcel of land
approximately 10 cents in extent situated in Re-survey No.150/2B of
Feroke Village, Kozhikode Taluk, Kozhikode District. The second
petitioner took the said parcel of land on lease as per Ext.P1. He
along with petitioners 3 to 4 and others thereafter starting vending
fish in the said property. The land where petitioners 2 to 4 are
conducting fish vending is situate adjacent to the public market run
by the Feroke Grama Panchayat. Petitioners 2 to 4 have admittedly
not obtained the permission of the local authority before establishing
a market to vend fish in the land belonging to the first petitioner.
Respondents 4 and 5 thereupon filed complaints before the local
authority objecting to the fish market being run by the petitioners.
They thereafter filed W.P.(C) No.1749 of 2010 in this Court. By
Ext.P4 judgment delivered on 19.1.2010, a learned single Judge of
this Court directed the Secretary of the first respondent Panchayat
to consider the said objection and take an appropriate decision
thereon with notice to the first petitioner herein, who was arrayed as
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the fourth respondent in that writ petition. The Secretary of the first
respondent Panchayat thereupon issued Ext.P5 notice calling upon
the first petitioner to remove the structures in his land and to stop the
private market being run by him therein. The petitioners thereupon
filed W.P.(C) No.6775 of 2010 in this Court challenging Ext.P5 on the
short ground that they were not heard before it was passed. This
Court quashed Ext.P5 and directed reconsideration of the matter.
The Secretary thereafter issued Ext.P7 show cause notice calling
upon the petitioners to show cause why the unauthorised private
market being run by them close to the licenced public market should
not be closed down. The petitioners submitted their objections.
They were heard and thereafter Ext.P8 order dated 22.7.2010 was
passed whereby the Secretary of the first respondent Panchayat
directed the petitioners to stop the business in fish vending in the
private market situated in the lands belonging to the first petitioner.
Ext.P8 is under challenge in this writ petition.
2. The petitioners contend that they are not doing fish vending
in a private market, as alleged and found in Ext.P8 and that section
222 of the Kerala Panchayat Raj Act (hereinafter referred to as ‘the
Act’ for short) has no application to the case on hand. It is
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contended that the petitioners have a fundamental right to do
business in their own lands and that the consent of the Panchayat is
not required to sell fish in the land belonging to the first petitioner.
The respondents have filed a counter affidavit supporting the stand
taken by the Secretary of the local authority in Ext.P8.
3. I heard Sri. P.V.Kunhikrishnan, learned counsel appearing
for the petitioners, Sri. V.G.Arun, learned counsel appearing for the
first respondent, Sri. K.Ramesh, learned Govt. Pleader appearing for
the second respondent and Sri. K.M.Firoz, learned counsel
appearing for respondents 3 and 4. I have also considered the
pleadings and the materials on record. It is evident from Ext.P1 and
the findings and observations in Ext.P8 that in the land belonging to
the first petitioner, a large number of persons including petitioners 2
to 4 are selling fish by opening separate stalls. The Secretary of the
local authority has in Ext.P8 order noticed the fact that the petitioners
have not obtained a licence from the local authority to vend fish or to
establish a private market and that as the Panchayat has its own
market about 200 metres away from the first petitioner’s land where
the petitioners are doing business, a private market cannot also be
sanctioned. Reliance is placed on rule 25 of The Kerala Panchayat
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Raj (Issuane of Licence and Control of Public and Private Markets)
Rules, 1996 (hereinafter referred to as ‘the rules’ for short) and
section 222 of the Act in support of the said contention.
4. Section 222 of the Act states that no person shall open a
new private market or continue to keep open a private market unless
he has obtained a licence from the Village Panchayat to do so. Such
licence has to be got renewed by the licensee every year. Rule 9 of
the rules stipulates that procedure to be followed for licensing of a
private market. Rule 25 of the rules stipulates that in a Panchayat
neither a new public market shall be opened nor a licence issued to a
private market within a distance of three kilometres from an existing
public or private market in the same Panchayat. The proviso to said
rule stipulates that in the case of an evening market, such distance
limit shall be one and a half kilometres from an existing evening
market.
5. The petitioners have no case that they have obtained a
licence from the local authority to run a private market. They also
have no case that they have submitted an application in the
prescribed form under rule 9 of the rules for obtaining a licence to
open a new private market. The petitioners also do not dispute the
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fact that within the distance of 200 metres from the land where they
are doing business in vending fish, a public market established by
the first respondent Panchayat is in existence. Though the learned
counsel for the petitioners attempted to raise a contention that the
business being carried on by the petitioners is not a market relying
on the definition of the term ‘Market’ in section 223 of the Act, it is
evident from the materials on record and Ext.P2 photographs that the
land belonging to the first petitioners is being used as a private
market. Ext.P2 photographs disclose that more than 6 persons are
doing business in different stalls constructed in the said land which
belongs to the first petitioner. In such circumstances, I am of the
opinion that the challenge to Ext.P8 order is without any merit.
I accordingly hold that there is no merit in the writ petitoin. The
writ petition fails and is dismissed.
P.N.RAVINDRAN,
(JUDGE)
vps
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